Sheppard v. State, 120 Ark. 160

Sheppard v. State

120 Ark. 160 | Ark. | 1915

Kirby, J.,

(after stating the facts). (1) It is contended that the court erred in giving said instruction numbered 2, and this contention must be sustained. The indictment did not charge the offense to have been committed in the perpetration or attempt to perpetrate the crime of robbery, and the jury should not have been told to find the appellant guilty of murder in the first degree, if they found deceased was killed in the perpetration of the robbery. There are two classes of murder in the first degree, separate and distinct, in one of which it is necessary only to allege that the killing was done in the perpetration of or attempt to perpetrate one of the felonies named in the statute, while in the other it is essential that the usual technical words, showing the killing was done after premeditation and deliberation be employed. Cannon v. State, 60 Ark. 564; Rayburn v. State, 69 Ark. 184; Powell v. State, 74 Ark. 355.

The giving of an instruction of like kind was held to be reversible error in Rayburn v. State, supra, where the offense was charged by the usual common law indictment.

The accomplice upon whose testimony the conviction was had did not see the offense committed, if his statement be true, and was surprised that killing had been resorted to by appellant, whom he had expected only to scare and intimidate the old man into giving up his money.

The case is not like that of Powell v. State, supra, where the court held there was ample evidence outside of that tending to show an offense committed in the perpetration of one of the statutory felonies and it was there also held that the remarks of the prosecuting attorney, objectéd to and not required withdrawn by the court, did not amount to the giving of an instruction by the court of the kind complained of herein.

It is next contended that the court erred in striking out a portion of one of the instructions relating to the accomplice’s testimony, but the instruction as given contained the language of the statute relative thereto and was sufficiently full to cover the point. Neither was there error in striking the clause out of the other instruotion, relating to the credibility of witnesses which has l>een held to he erroneous when specifically objected to.

(2) It is next contended that the court erred in refusing to allow the ten other witnesses produced to testify in support of the alibi. Their testimony would have been cumulative and it is not disclosed that any of said witnesses had any special or peculiar knowledge that would have tended more strongly to convince the jury of the truth of their statements of the whereabouts of appellant than that already given by the numerous witnesses who had testified, nor that any of them were of such standing that their statements would have 'carried more weight than that of the others, and the court 'did not err in refusing to permit'them to testify. It is within the sound, judicial discretion of the trial court to limit the number of witnesses permitted to testify about a particular fact and to decide where and when the introduction of cumulative testimony shall stop and, while in capital eases this discretion should be cautiously exercised, it will not be controlled unless it appears to have been manifestly abused. Hall v. State, 64 Ark. 121; Jack Bayou Drainage District v. St. Louis, 1. M. & S. Ry. Co., 116 Ark. 30, 171 S. W. 867; State v. Lamb, 42 S. W (Mo.) 827; note 8 Ann. Cases, 828.

It is unnecessary to discuss the other matters complained of, which will not likely occur upon a new trial.

For the error in giving said instruction the judgment is reversed and the cause remanded for a new trial.