60 Ark. 45 | Ark. | 1894
J. S. Johnson was indicted for murder in the first degree; was convicted of murder in the second degree; his conviction was set aside; he was tried the second time, and convicted of manslaughter.
He complains of three alleged errors in the second trial. First. While he was testifying in his own behalf, the prosecuting attorney asked him, on cross-examination, if he did not forfeit a bail bond which he had given to answer a charge of felony when he left Texas “a year or so” before the killing of the deceased. He objected to the question, but the court overruled his objection, and, saving exception, he answered that he had. After the prosecuting attorney had spoken about ten minutes in his first speech to the jury, the judge interrupted him, and said that the court would sustain the objection to the question as to his leaving Texas, and hold the answer thereto improper evidence to be introduced.
Second. On the 6th of July, 1894, the cause was submitted to the jury. At 5 o’clock in the evening of the next day the court sent for the jury, and inquired if they had agreed, and they answered they had not. On the 10th of July, 1894, about 8:30 in the morning, the court again sent for them, and asked if they had agreed, aud they replied that they had not, and the court said: “ This case has been a great expense to the county from which it came, and it ought to be decided ; and while I do not ask you to yield any question of conscience, you must not be obstinate or too tenacious of your views”— to which statement the defendant at the time excepted. At 4 o’clock in the.evening of the same day they returned a verdict in words as follows: “We, the jury, find the defendant guilty of voluntary manslaughter, and leave the assessing of the punishment to the court, and recommend the defendant to the mercy of the court.”
Third. One of the grounds of the defendant’s motion for a new trial was : ‘ ‘ The court erred in keeping the jury together in said cause ninety-four hours while some of them were ill, and wholly incapacitated by reason of sickness from considering said cause” — to support which he filed the affidavit of D. J. Cox, in which the affiant stated, substantially, as follows : McPherson, a member of the jury, became sick during the night of the 8th of July, 1894, and appeared to suffer considerably. On the day following he took medicine and was drowsy, and after this, on the same day, sent for a physician, who came at once, and administered to him a hypodermic injection of one-eighth of a grain of morphine, and left two more doses of one-eighth of a grain each which the patient took. He complained of being sick till the jury was discharged. -Taylor, Jolly and Blackburn, three other members, complained of being sick on Monday.
In this case the defendant objected to the question. Why ? Because it was not proper, and the witness should not be required to answer it. After overruling the objection, and when the prosecuting attorney was in the midst of his speech, the court stopped him to say that the defendant’s objection was sustained, and that the answer to the question was not admissible as evidence. What was intended by this remark, and how did the jury understand it? What the court meant is obvious. It intended that the jury should not consider the answer. Certainly, the jury, if they understood that it was inadmissible as evidence, could not believe or think that they had a right to consider it as such. As intelligent men, they could not reasonably come to such a conclusion. The time and manner in which the court announced its ruling were calculated to impress on their minds the importance of disregarding it as evidence. The defendant doubtless thought so, or he would have asked the court to instruct them to disregard it in more explicit language.
Judgment affirmed.