Jones v. State

58 Ark. 390 | Ark. | 1894

Bunn, C. J.,

i. Fonu of accessory to a murder. (after stating the facts.) The'motion m arrest oi judgment was properly overruled, the dictment properly charging a crime within the jurisdiction of the court, and which, if sustained by proof,would have been sufficient to base the j'udgment of the court upon. The obj'ection to the indictment is that it fails to charge that defendant, before the murder was committed, unlawfully, wilfully, feloniously, “and with malice aforethought, and zuith -premeditation and deliberation,” did advise and encourage the perpetration of the crime ; the contention of appellant being that the italicized words were necessary to the validity of the indictment, and, the same not having been employed, the indictment failed to charge an offense within the jurisdiction of the court. This is answered by the attorney general that, these appropriate words having been employed in that part of the indictment which charges the crime of murder as having been committed by the principals, Mitchell, Brewer and Brooks, the part charging the crime of being accessory before the fact to the murder upon the appellant, in terms that she unlawfully, wilfully and feloniously advised and encouraged the principals to commit the murder in manner and form as aforesaid, meets all the requirements of good pleading, because the charge as to the accessory, by apt and appropriate words, relates back to and adopts the words used in the principal charge; and this is sustained by Bishop, Starkie and Archbold. Bishop’s Directions and Forms, sec. 539; 1 Starkie, Cr. PI. 87; 1 Archb. Cr. Pr. & Pl. 16. While the indictment, in this respect, is held to be good, yet the admonition from the best authorities is to the effect that it would be best in all cases to use the more extended form.

There being no objection to the instructions of the court, the first ground, of motion for new trial is probably intended as formal merely.

„ , „ TCnuo.prOTe The second ground, to the effect that the verdict is against the evidence, is well taken in one respect at least, and that is that there is an utter want of proof of venue — a failure which, according to the uniform ruling of the court, can but result in a reversal of the judgment. Frazier v. State, 56 Ark. 242.

The same of course is to be said of the third ground, in part.

3. inadmisopinioneviThe fourth ground, is based upon the court’s admission of the testimony of Green Brewer, one of the principals. Much and most of his testimony consisted of opinions of his own as to the participation of defendant in the perpetration of the crime, and in so far was clearly inadmissible.

4. Evidence cesiory con-0' side Ted. The objection made in the 5th, 6th, 7th and 11th grounds of the motion for new trial all have reference to the testimony of J. M. King, Maria Mitchell and Millege Mitchell concerning the discovery in the latter’s trunk, with the photograph of defendant, of a certain “ white powder ” said by Millege Mitchell to have been strychnine. It seems that some five or six months before the killing, at the instance of the defendant, Mitchell applied to Dr. King for an emetic for .the deceased. This was given by King as requested.- What connection this had with the strychnine in - Mitchell’s trunk, or what connection the strychnine had, or was intended to have, with the commission of the .crime, no where appears. Hence, in the absence of such connecting proof, this evidence could have no other effect than to show an intimacy ■between the defendant and Mitchell, and was otherwise irrelevant.

The motion for new trial on the eighth ground was properly overruled, as no predicate was laid upon which to impeach the testimony of Brewer by the testimony of Lankford, which the court refused to admit for this purpose.

s. Examina¡ncapitiícaL. The ninth and tenth grounds of motion for new trial, were not well taken. The defendant is charged with a capital offense. Sections 1505-6 Mansfield’s Digest. This being true, it was altogether proper for the prosecuting attorney to ask the jurymen on their voir dire if they had any conscientious scruples that would preclude them from returning a verdict of guilty when the law and evidence would justify the same; and, on their answering the question in the affirmative, it was not error in the court to excuse them.

We deem it unnecessary, and even improper, to discuss the twelfth ground of the motion for new trial.

Por the error mentioned, the judgment of the court is reversed, and the case is remanded for further proceedings.

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