54 Ark. 243 | Ark. | 1891
Will Jackson was tried in the circuit court of Sebastian county for the Fort Smith district on an indictment for murder in the first degree, committed by taking the life of Ida Dean. The jury found him guilty as charged, and he moved for a new trial. This having been denied, judgment of death was pronounced against him, from which he has appealed.
Of the assignments of error made in the appellant’s motion for a new trial, only two have been argued and insisted upon here. These relate to the action of the court in refusing to grant the defendant a continuance and in denying his application for a change of venue. The killing occurred in the city of Fort Smith, on the 2d day of June, 1890, and the indictment was found two days later. On the nth day of the same month, the gentlemen thrqugh whose services this appeal has been prosecuted were assigned as the defendant’s counsel in the court below. On the day following their appointment they filed a motion asking the court to continue the cause until the next term. The grounds of this-application, as stated, were that the defendant’s counsel had not had sufficient time to prepare for his trial, and that four material witnesses in his behalf were absent. The motion stated that in the summer of 1888 the defendant suffered a severe sunstroke, which at times, and especially when he was under the influence of strong stimulants, rendered him so far unconscious that he was wholly unable to distinguish-right from wrong; that, at the time of the killing, and prior thereto, he was under the influence of beer and whisky to such an extent that by reason of the effect of said sunstroke he became wholly unconscious of the nature of his-acts; that he expected to prove by the absent witnesses, whose names were given, and who, it was stated, resided in the Indian territory, that he received the sunstroke referred to, and that at times since then they had known him to become apparently unconscious—sometimes from overheat, and several times after having used apparently but a small quantity of liquor. The application concluded with a statement that it was true, and.that the defendant believed he would be able to procure the testimony of the absent witnesses by the next term of the court, and that he knew of no other witnesses by whom he could “so well prove the foregoing facts.”' The motion, which was sworn to by the prisoner, was filed and overruled on the 12th day of June. The cause was not, however, then called for trial, but was set for trial on the 20th day of the same month.
The statute (Mansf. Dig., sec. 2196) provides that the order for the removal of a criminal cause from the circuit court where it is pending to the circuit court of another county “ shall be made on the application of the defendant by petition setting forth the facts, verified by affidavit.” And that “the truth of the allegations in such petition,” shall be supported “by the affidavit of some credible person.” It is contended here on the part of the State that no petition, within the meaning of the statute, was in fact filed to obtain the change of venue sought by the defendant; and that if the paper which he presented can be treated as a petition, it is insufficient because it states no facts, but only a conclusion of law. It is argued that the defendant’s application was-therefore properly refused because of its informality.
The practice which has prevailed in this State with reference to the form of an application for a change of the venue in a criminal case has been extremely liberal; and as no objection to the form of defendant’s petition appears to have been made in the court below, we think it would be unjust to him to entertain it on this appeal. Our opinion however is that the paper filed in this case and treated as a petition in the court below is in its form a substantial compliance with the statute. It does indeed state the conclusion to be drawn from the facts to be investigated, rather than the facts themselves. But the statement is of such nature that no one was likely to be misled by it.
On the-20th day of June, the appellant filed an amended application for a change of venue. This was supported by the affidavits of Joe W. Smith, Charles O’Brien, and George Brown. The court caused these witnesses to be examined orally in open court, with the view of ascertaining their credibility. It does not appear that any objection to this examination was made by the defendant at the time it took place ; but it is now insisted that it was error. We are of the opinion that it was within the discretion of the court to receive the oral testimony of these witnesses as to facts affecting their own credibility, and their testimony, as set forth in the bill of exceptions, is such as we think amply supports the finding of the court that they were not credible witnesses.
It follows that the court did not err in denying either of the appellant’s applications for a change of venue.
No question can reasonably arise on this record as to the sufficiency of the evidence to support the verdict of the jury. The instructions of the court were not unfavorable to the defendant.
Finding no error in the judgment of the court below, it is affirmed.