(after stating the facts). Appellant’s first contention for reversal is that the court erred in denying his right to peremptorily challenge one of the jurors offered after the twenty peremptory challenges allowed by law had already been exercised by the defendants in the case in which he was jointly tried.
It is argued that appellant did not exercise his right of 'challenge at all, was not consulted and did not participate therein, the right being given to Bob Kenton, whom the record shows challenged the twenty jurors. Under our statute, the defendant is entitled to twenty peremptory challenges in prosecutions for felony and it is not claimed that the twenty challenges were not exercised and the right exhausted in this case but that each defendant where they were tried jointly, is entitled to the designated number of peremptory 'challenges. The. law allowing three peremptory challenges of jurors to the parties in civil actions has been construed and held to mean that each side is only entitled to that number, without regard to the number of plaintiffs or defendants interested in the trial; that the challenge of a juror on behalf of the plaintiff or defendant is a challenge for all on that side, regardless of number and this is likewise true when-cases are consolidated and tried together. Fidelity Phenix Ins. Co. v. Friedman,
It is ‘next complained that the court erred in the admission of incompetent testimony. This contention is without merit however. It is true, J. A. Green, was permitted to testify that J. A. Osborne was a party to a suit instituted by the State of Tennessee v. Cissna and others in the chancery court, but the .appellant had already introduced in evidence the record of said cause ■showing that fact.
■Curtis. Little, the clerk of Mississippi County testified that he had used the field notes of the section and township -which were taken from the photographic plat book of the original surveys made by the -government. These books were furnished to the clerks of the counties by the -State Land Commissioner’s office, with the proper certificates attached.
No witness disputed the correctness or accuracy of either the map or field notes and the court committed no error in permitting the introduction of this testimony. Sellers v. State,
Said instruction numbered 4 reads: “Long acquiescence by one State in the possession of territory by another and in the exercise of sovereignty .and dominion over it, is. conclusive of the title and rightful authority of the latter State. Therefore, if you find from the evidence in this case that the State of Tennessee for more than thirty years exercised sole and exclusive jurisdiction, sovereignty and dominion over the place where the alleged crime was committed, and that the State of Arkansas has during that time acquiesced in the exercise of jurisdiction over the same, then the State of Tennessee has sole and exclusive jurisdiction over the territory where said crime was alleged to have been committed, you will return a verdict of not guilty. ”
The court in its said instruction numbered 1, also called attention to the testimony adduced relating to the existence of a civil district of Tipton .County, Tenn., upon Island 37, the establishment of polling places and holding elections thereon, under the laws of said State, the assessment and collection of taxes upon real and personal property and the exercise of jurisdiction by the courts of said county of Tennessee in civil and criminal proceedings against persons and property thereon, as well as testimony of the failure of the constituted authorities of Mississippi county, Arkansas, to exercise jurisdiction thereon and continued, “This testimony is competent and is to be considered by you, together with .all the other facts and circumstances in proof bearing upon this question of jurisdiction, but if you find from a preponderance of the evidence that the alleged crime was committed north of the middle line of the main channel of the Mississippi river, as it existed on the 16th day of June, 1836, at said place, the Osceola District of Mississippi County, Arkansas, has jurisdiction in this case, notwithstanding the exercise of the jurisdiction of the .State of Tennessee thereon, and notwithstanding the failure of the legally constituted authorities of Mississippi County, Arkansas, to exercise jurisdiction over .said territory heretofore. ’ ’
No mention was made of the law of Congress authorizing it nor the statutes of Arkansas authorizing and permitting reciprocal and extended jurisdiction over offenses committed upon the Mississippi river to the west bank thereof by Tennessee and the eastern bank by the State of Arkansas.
In Kinnanne v. State,
It is finally strongly urged that the testimony is not sufficient to support the verdict either as to the venue or the commission of the crime. The indictment charges the 'appellant, along with others, with conspiracy to kill and murder 'Sam Mauldin, the sheriff of Mississippi County, iand the instructions presented the questions at issue to the jury, requiring them to find before convicting appellant that Burt Spring, who fired the shot, was guilty of such offense. It is true there is no. testimony that appellant did anything on the night of the raid of the Andy Crum place and the killing of the sheriff, except to come out of his room in his night clothes after the shooting began and some one hallooed for him, but he was with difficulty kept from immediately going back into the room filled with loaded weapons, the officer having to threaten to shoot him with a shot gun presented, to keep him from doing so. He .also laughed when he came into the presence of the,, sheriff who lay dying upo'n the ground, manifesting a reckless .and wanton disposition in keeping with the unlawful business conducted by him and his associates and in accord with the many conversations and threats indulged in by them against the Arkansas officers, if any attempts were made for their arrest for their open violations of the law.
In 'the last cited case, the court quoted from Cantrell v. State,
The undisputed testimony shows that the sheriff was killed by Burt Spring, the keeper of the gambling house at the Andy Crum place, which was under the control of Dave Hearne during the absence of the proprietor, while he was attempting to make arrests for violations of the law by these offenders, and the testimony is sufficient to show, as the jury found; that appellant, Spring and some of the others had conspired to resist such arrest, to the killing of the officers upon any attempt to take them. It was etrongly contended that Burt Spring, who died from the wounds inflicted in the raid, had no knowledge or information that an attempt was being made to arrest him and that he had the right to protect himself and his house from those who were attempting to force an entrance and shooting at him. The testimony is in conflict upon this point but it is not disputed that before the shot was fired that killed the sheriff, Burt Spring had been told by the negro who was. trying to push the door open, in order to protect himself from being shot while doing so, “Don’t shoot, Burt, don’t shoot these white men, these officers ¡and soldiers, they won’t hurt you, and if you make fire, you are ruined,” and notwithstanding this, after the door was forced open, he continued shooting until the sheriff was killed.
The testimony of the witnesses who made the survey and determined the boundary line between the two states was undisputed that the Andy Crum place, where the killing occurred, was on a certain part of section of land in Mississippi County, Ark., except as the testimony of the exercise of dominion and jurisdiction by the State of Tennessee over said Island No. 37, upon which the Crum place was situated, tended to refute it. The jury were properly instructed as to the venue, and the testimony is sufficient to support the finding that the offense was committed within Mississippi County, Arkansas.
Finding no prejudicial error in the record, the judgment is .affirmed.