*1 149 Thompson 202 2d v. Ark. Natl. Bank, 220 Ark. I reach these con- S. W. 2d if clusions: Elmo’s forfeited, life estate should be just then Robert’s life estate would come into existence the same as it would on that on the death; Elmo’s death of or Robert, the forfeiturе of life de- estate, his heirs, scent would then be cast to B. at law of.W. Harness. join and Robinson,
George in this JJ., Rose Smith dissent.
Rush v. State. 2d
Opinion delivered 18, 1964. Hardin, appellant. Barton Hartón, Attorney By Jerry Bruce Bennett, General, L. Pat- appellee. Atty. terson, Asst. Gen., Appеllant, Fred Associate Justice. Bobinson, Sam *2 Fred, has referred as hereinafter to Bush, sometimes degree appealed in first from a murder the conviction of penitentiary for the resulting in the a life sentence in step hereinafter alleged killing Bush, Paul father, his of Fred’s also was Paul, referred to as sometimes theory adoptive case is the The State’s Baymond father. Carolyn Brown, and Wood, Fred, his cousin conspiracy kill him did Paul, kill and entered a to into p.m. about on carrying con- in out the contends that part
spiracy, early night May Fred in factory by Company, & B a furniture went the V Sales operated by family intention- and the Bush in Ft. Smith, building; burning ally light left floor of the a the third conspira- plans accordance later, with by building his with tors, wife, drove his and рretended marriage, to dis- a former children apart- burning; light then that he went to cover the separated at time Paul, who was father, ment his going inveigled him into mother, from Fred’s factory investigate reason with to conspiracy, light burning; furtherance Baymond building with armed was hidden in the Wood Carolyn waiting a .22 kill Paul; caliber rifle to waiting Brown in an outside Wood automobile was escape having factory killed to enable him to after away Paul; Wood did kill Paul and driven was planned; by Carolyn from the that in addition scene by shooting .22 him in the with a neck allay Baymond caliber in the rifle, shot Fred shoulder suspicion any that Fred involved was manner killing. Immediately killing, after Fred taken to was hospital questioned and while there he was officers of the law. paramour living Taylor, Fred’s,
Pat Carolyn with Brown. The cousin, motel Ft. Smith her day, killing, Baymond Pat Wood next after questioned Carolyn by officers; and questioning Brown were months; continued from time time for they any knowledge killing. denied although appears pretty libertine; much a
Fred living he was wife, with he keeping married and was his Taylor. murder About after the Pat nine months quit began his to bestow Paul, Fred Bromley. Along about the first affections on one Louise February, of ley Brom- 1963, he left Ft. Smith with Louise They Houston, Texas, Brown. went to apartment. together where all in an lived *3 About a month after Houston with Fred left for Bromley, Brown and Louise and after first conferring professional with one bondsman Burnside, private engaged by and heirs who had been detective, and law enforcement authorities of Pat went to the Paul, Carolyn Brown Fred, told them that "Woodand plans conspired carry out Paul; had to kill that the apart- (Pat’s) conspiracy in her had been worked out presence. ment in her conviction Fred The arrest and followed. appeal, appellant
On the court first contends that refusing grant change erred in At the hearing petition chаnge on the it shown of venue was newspaper given coverage that a local extensive testimony of Pat and Bill Irons, witnesses preliminary for the State, who had’ testified at the hear- ing, great and that there all interest cаse over county. appellant’s petition Attached to for a of venue were the affidavits about twelve residents County of Sebastian not related to the defendant. The substance of the affidavit is that the defendant сould not get impartial county. a fair and trial in the The affiants appeared hearing gave at the on the sworn verifying what said in the affidavits. any There no indication that is the affiants not a person good character. The State offered no counter- testimony. affidavits no.rebuttal adopted adoption 3, Act No. Initiated tire Prior to read: by of venue statute our voters tbe applica- made be order of removal shall “Such petitiоn setting by the facts forth the defendant tion of applica- notice of if reasonable affidavit, verified attorney and the truth State, given for the tion be supported allegations in such persons are credible of two аffidavits county related residents of actual electors, Digest (1921), way.” & M. C. to the defendant § 3088. provisions that under has held
This court peti foregoing on a decided issue to be statute credibility of the affiants. tion for of venue is inability allegation fair trial could obtain a Ark. State, not be Dewein v. controverted. Strong It S. W. State, 536, 109 346; meaning person, held within was also that a credible feeling knowledge of the one who has statute, is merely people county throughout worthy person ordinarily of belief. to be considered Speer v. 280; 80 Ark. Duckworth State, Williams v. 113; 198 W. S. Hedden v. 258 W. *4 20 W. 2d 1079, S. change of venue statute mentioned, heretofore
As provides now for Act No. 3. The statute was revised taking filing and the of testi- of сounter-affidavits mony original set out on the truth facts provides grant or that the court shall affidavits, petition according truth of the facts refuse alleged in it and the evidence. Ark. established Stat. (1947). Ann. 43-1502 And the method that has this is § adoption No. been used since the of Act. 3. Lauderdale v. Perry Coggins 343 W. 2d S. & 342 W. 2d 95. State, 232 Leggett 299 S. W. 2d In trial had been examined for the of veniremen hundreds petition filing for before the merits complete. From the and the was almost venue, previously heard, thе court veniremen, could that the defendant able to reach the decision county. impartial a fair and trial obtain 2d In Robertson v. jurisdiction trial courts court . . The 748, the “. said: permit inquiry enlarged been which before has permissible. adoption of Act Initiated No. 3 was enlarged authority the court heard Pursuant testimony this support- of other that of the Avitnessesbesides ing appellant affiants and announced the that conclusion jurisdiction. may could obtain a fair trial in that We judicial therefore revieAv the exercise of the discre- tion vested the court and in view the conflicts testimony, say arewe unable that abuse (Emphasis added.) discretion this was shown.” In the bar there no conflict the testi- case at mony on the for As heretofore venue. produced affidavits and no wit- mentioned, no say question, and we cannot the court nesses denying not abuse did discretion its change of We, therefore, venue. hold entitled to examination, Laws, C. E. the talesman voir dire
On building & R to the V Sales Com- that he rented stated Company), (the pany and had discussed the case Rush company; employee employee such with an venireman) (the аnd that witness, he Avaslisted opinion take evidence to but that remove, which would opinion try case on he could set aside at the trial and the evidence introduced instructions challenged defense the venireman the court. The qualified; exceptions the court held that cause; Avas Averesaved. although held court has this
In numerous cases opinion, rumor from an formed a venireman has re- newspapers, take evidence reading that would jury go qualified box can into the if he he is move, impar- fair a the defendant give both 154
tial intro trial and base his verdict on the evidence duced in the case and instructions of the court. Hardin State, v. 48 904; State, S. W. Ham v. 179 Ark. 20, 13 State, S. W. 2d 234 805; West v. S. W. 997; Niven v. 2d 644. There S. W. pointed it was out that venireman had talked not with witness; Howell v. 220Ark. 278, 247 S. Leggett 2d 952; 2d 59. In Lauderdale v. State, 233 Ark. it S. W. 2d 422, pointed out that the venireman had talked witness.
But we have been cited to no
we
found
ease, and
have
holding
qualified
none,
thаt one is
serve on a
has talked with a
witness
case and
formed
has
opinion
that would take evidence to remove. We have
holding
at
contrary.
least two cases
Caldwell
State,
. The State concedes that ballistic tests been made pistol weapon and the was not the used Rush. But the State contends thаt the fact that pistol way Brown and Woods had the in some Taylor, pistol corroborates Pat and that the there- was, pointed admissible fore, evidence; but nowhere is it pistol any way out in what manner the corroborates and we have discovered from record pistol pistol question her. how the corroborates very heavy it caliber; for a .22 has 9-inch barrel, and *6 pistol very looking. rather wicked The fact that is tendency conld had a to was admitted evidence have jury, notwithstanding there contention no confuse part pistol that was used in pistol killing. In not think the these circumstances we do was Everett v. admissible evidence. W. 2d 233.
According was, she accessory аnd after the .an before law, a matter as preparations killing. were testified fact to the She killing; apartment for the made in her appel- dyed by Carolyn Brown; hair was Wood’s tape put strips on automobile lant of adhesive cut disguise license tracks, an automobile tires the tire apartment; changed, all in her that after the number was removing dye which evidence she assisted had been on Wood’s hair. These facts constitute she said aсcessory. her an Froman acces- W. 2d 601. There no distinction an
S. sory between principal. or after the fact Ark. Stat. before (1947). Ann. 41-118 § requirement dealing
By with the Instruction No. 7, accomplice court left corroborated, be an must jury say an accom- whether Pat it to the plice. appellant have argues the court should ac- a matter of law she was told the that as inherently complice. erroneous is not The instruction specific objéction; therefore, made no appeal. point preserved for consideration points argued not discuss are which we do Other likely trial. at a new are not occur because judgment is reversed indicated, Por the errors for a new trial. and the cause remanded McFaddin, J., concurs. (concurring). McPaddin, Associate Justice
Ed. P. judgment should agree Circuit Court that the I juror, also Laws; E. (a) C. because reversed (b) pistol. because of tbe оf these admission of tbe Both clearly Opinion. Majority matters are stated holding Majority agree I with the But do *7 firmly regard I of venue. am of the view for a that when á defendant moves of venue fail burden; has the and if his witnesses to establish his change, then Court can hold. In claimed so this case I think the defendant’s witnesses failed to establish the right change of venue; defendant’s to a and I think the refusing Court was correct Circuit Herrington v. Hall.
5-3277 2d 529
Opinion delivered 18, 1964. [Rehearing September 21, 1964.] denied appellant. Max K. Roberts, Smith George George ap- H. Holmes N. Holmes, pellee. September, Robinson, Associate Justice. In Sam adopt countywide an initiated stock signed by purported been to have
law, County filed with the Clerk of Cleveland electors, was Acting authority County. under of Ark. Stat. Ann. (Repl. 1956), the Clerk certified the § 2-303 County Board Election Commission- sufficient