46 Ark. 141 | Ark. | 1885
In State v. McMinn, 34 Ark., 160, the defendant had been previously indicted, tried and acquitted upon a charge of stealing a cow and two heifers, the property of one Carroll. To an indictment which charged him with stealing a hull, the property of one Adney, he pleaded the former acquittal in bar. But it was held that, as upon the first indictment, he could not have been possibly convicted of the offense described in the last indictment, the plea presented no bar.
A similar result was reached in Williams v. State, 42 Ark., 35, where the defendant was first indicted for stealing the money of Mrs. Elliston, viz.': Two greenback bills, two national bank bills and two silver certificates, of the denomination of $10 each; also ten silver dollars, ten halves and ten quarters. The defendant having pleaded not guilty, a jury was impanneled and sworn ; and after witnesses were examined, and counsel had argued the case, and the court had charged the jury, a nol. pros, was entered. The defendant was afterwards indicted for stealing two greenback bills and two national bank bills, each of the denomination of $20, and one hundred silver dimes, and one' hundred nickels belonging to Mrs. Elliston. He pleaded former jeopardy, alleging that it was all one and the same larceny. But a conviction was sustained upon the ground that, under the first indictment, he could not have been convicted of stealing any piece of the money described in the second.
In Morgan v. State, 34 Texas, 677, the defendant had been acquitted of the theft of $8.50, alleged to have belonged to one Warwick, and to have been stolen from his dwelling-house and from his possession. He was again indicted, and this time convicted of the theft of $8.50, the money of Richard Peterson, and stolen from his house, but in the possession of Warwick. And it was ruled that the offenses were distinct.
These precedents suffice to show that there is no identity of accusation in the case at bar, and the one on which McCoy was acquitted. The injured persons were not the same; the grade and punishment of the two offenses were different. The indictments were not even founded on the same physical act; and their legal effect is different.
The testimony revealed a revolting instance of coldblooded assassination. McAllister and his family were seated around a winter fire in their own house. It was two hours after night had set in. The busy housewife was carding wool. Upon this peaceful scene, three men, with pistols in their hands, intruded. They effected an entrance by bursting open the door of the house, and immediately began an indiscriminate firing upon McAllister. His wife, in attemptiog to protect him, was struck over the head with a pistol, and received a shot in her arm, which rendered amputation necessary. McAllister was killed. The three men were recognized by Mrs. McAllister, her daughter and her three sons, as McCoy, Bookout and Osborne. They were neighbors, well known to all the family, and they wore no disguise. According to their testimony, McCoy fired the fatal shot. Bookout and Osborne had a private grudge against McAllister because he had recently sworn out a warrant against them. They had made an attack upon him on the public highway, when he was compelled to take refuge in the house of a neighbor. No motive was known for McCoy’s participation in the crime. He was supposed to be on friendly terms with the McAllisters. But he was a brother-in-law to Bookout and had evinced some excitement about the time that the writ was issued for the arrest of Bookout and Osborne, and had expressed an opinion that McAllister might as well select the place he wished to be buried in. In opposition to this testimony, McCoy and four other witnesses .swore that he was at the house of Nathaniel Eskridge, two and a-half miles from McAllister’s, at the time the murder was committed, and indeed until Osborne was brought there wounded, he having been shot in the neck by one of his comrades in the course of the conflict at McAllisters. But the jury chose to believe the witnesses for the prosecution, and to disbelieve the defendant’s witnesses. The state had in truth introduced' evidence tending to prove that three of the defendant’s witnesses were not of unimpeachable character.
We do not interfere with verdicts on the ground that they are not warranted by the testimony, unless there is a total absence of proof on a material point, or the proofs so eompletély fail to support the verdict, that, in order to arrive at their conclusion, the jury must have acted from prejudice or partiality.
The answer is, that McCoy appears here in the double character of an accused party on trial and of a witness. He opened the door to this cross-examination by first testifying voluntarily to matters which occurred subsequently to the killing. And a witness may always be discredited by proving that he has made contradictory statements on a former occasion, provided he is first inquired of concerning such former statement. Drennen v. Lindley, 15 Ark., 359.
A defendant in a criminal case takes the stand like any other witness. He is subject to the same liabilities on cross-examination as are other witnesses. His character for veracity may be impeached, though his good character may not have been previously put in issue. And he may be contradicted by proof of prior inconsistent statements. 1 Bish. Cr. Pro., sec. 1182, et seq.; Wharton’s Cr. Ev. 8th ed., secs. 429, 434, and cases, cited; Brandon v. People, 42 N. Y., 265; State v. Owen, 78 Mo., 367.
The court refused the following prayers of the defendant for directions:
“The charge against the defendant involves his presence at the time and place of the commission of the alleged murder, and if the jury have a reasonable doubt, from the whole testimony in the case, of the defendant’s presence at the time and place of the commission of the offense charged, it is their duty to acquit him.”
“ If the j ury believe from the evidence that Ben Bookout and Sam Osborne, on the night of the 26th of January, 1874, in the county of Pope, and state of Arkansas, killed and murdered William McAllister, and that the defendant Jas. McCoy, at the time of the commission of the said murder, was at the house of Nathaniel Eskridge, or the jury entertain a reasonable doubt of that from the whole testimony in the case, they will find him not guilty.”
“ The law presumes the defendant innocent; and this presumption remains, and is to be considered by the jury as evidence in the case until the contrary appears from the evidence.”
“It is competent for the defendant to introduce evidence •of his general good character as a peaceable and law-abiding man; and this is to be considered by the jury as a circumstance in the testimony tending to establish the improbability of his having committed the crime charged against him.”
“It is competent for the state to introduce evidence of a-grudge or bad feelings existing between deceased and defendant, or any testimony that would reasonably tend t,o-establish a motive for the defendant to do and commit the-crime charged; and if the absence of motive appears from the evidence, this is a circumstance to be considered by the-jury in determining the guilt or innocence of the defendant.”
' But the jury had already been instructed that the state-was bound to prove every material allegation in the indictment to their satisfaction beyond a reasonable doubt, and) the material allegations in this indictment had been pointed out. It had been explained to them that the defense was-an alibi; and that if the proof raised in their minds a reasonable doubt as to the defendant’s presence at the time and place of the killing, it was their duty to acquit. They had also been told that motive, or the absence of motive, to-commit the crime, was a circumstance to be considered by them in determining his guilt or innocence; and that previous good character was also to be taken into account;: but if the evidence showed his guilt, they should so find,, notwithstanding his good character.
Judgment affirmed.