| Ark. | May 7, 1906
(after stating the facts.) Learned counsel for appellant insistsHhat the cause should be reversed on account of the improper remarks of counsel, but the record presents nothing in this respect, when the remarks of counsel for appellant as well as counsel for the State are all considered, that can be said to be prejudicial.
1. When counsel for the State in his opening statement to the jury asserted that Will Preston was under indictment for the killing of'Count Gleghorn, appellant made no objection, and did not ask afterwards to have the remarks withdrawn from the jury, and the jury instructed not to consider them. Appellant chose to concede the fact as stated by the prosecuting attorney, and to answer same by saying that the evidence will show that Preston had.nothing to do with the killing, and that he had been indicted for the purpose of discrediting his testimony, rather than to object to the remark at the time and ask the court to instruct the jury not to consider same. Having taken this method of disposing of the remarks in the trial court, appellant must be held to have waived the error and prejudicial effect, if any, of'such remarks before the jury. Likewise, after appellant’s counsel had stated in his argument to the jury that “the evidence will show that Will Preston had nothing to do with the killing,” appellant could not complain that the counsel for the State answered the argument by saying :■ “I believe when he is tried the evidence will show that he is as guilty as the other defendant.” The same may be said of the remark of the prosecuting attorney that “the proof will show in the trial of Will Preston that the shot that killed Count Gleghorn was not fatal.” These latter remarks involved an inconsistency, a contradiction in terms and, literally speaking, really meant nothing. But if the State’s counsel meant by them, as seems probable, that Will Preston had something to do with the killing of Count Gleghorn, it was not error of which appellant could complain, because his counsel had invited such argument by stating that “the proof in the trial of Will Preston would show that he had nothing whatever to do with the killing of Count Gleghorn.” The counsel for appellant, it appears from the record, made the first reference as to what the proof would show in the trial of Will Preston. Whatever the prosecuting attorney said with reference to that was no more in effect than saying that on the trial of Will Preston for the killing of Count Gleghorn the proof would show that he was guilty. It was improper, of course, to refer to what the proof would show on another trial. But counsel for the State did not state any specific fact that the proof would show in the trial of Will Preston tending to connect him with the murder of Count Gleghorn. He simply answered the general statement of the counsel for appellant that Will Preston would be shown to be innocent by the general statement in effect that he would be shown to be guilty.
But since John and Count Gleghorn were killed in the same rencounter with appellant, under precisely the same circumstances and almost at the same time, we do not think it would have been improper for the State to prove that Will Preston was jointly indicted with appellant for the murder of Count Gleghorn. It was impossible to develop the circumstances of the killing' of one without the other. The two offenses were practically one and the same. The fact that Will Preston was jointly indicted with appellant for, the killing of Count Gleghorn, which appellant’s counsel conceded to be true, was a matter proper to be considered by the jury in passing upon the credibility of the witness Preston. The fact of such indictment would tend to show that he had an interest in the result of the verdict on the trial of appellant.
2. It was also not improper, we think, for the prosecuting attorney, under the proof disclosed by the record, to refer to Preston as the “friend and accomplice” of appellant. That was only the expression of an opinion upon the part of the prosecuting attorney that such was the fact. There was very little evidence, if any, tending to show that Will Preston was an accomplice of appellant, but the proof was all before the jury, and as intelligent men they could not be prejudiced by the conclusion of the prosecuting attorney that Will Preston was an accomplice, if there was no evidence before them to justify such opinion or conclusion. The mere opinion of counsel in argument, not warranted by proof, is not likely to make an impression upon the mind of an intelligent juror.
The witness Preston gave, it appears, conflicting' accounts of how the fatal rencounter began, which was .the most vital point of inquiry in the case. In the account he gave to witness Cantley (according to that witness) on the day of the killing and in a very short time thereafter, he made appellant the aggressor, saying that “Squire Smith accused them of stealing his dog. He came over there and raised it,” etc. But on the witness stand his testimony tended to exonerate appellant entirely, and to show that the Gleghorns were the aggressors, and that appellant acted only in self-defense. He stated also to another witness shortly after the killing that only two shots were fired., while on the witness stand he stated that there were four. Pie had blood on his hands, and gave conflicting statements as to the manner of getting same on his hands. These and other seeming contradictions in his testimony doubtless led the prosecuting officer to conclude that he was the “friend and accomplice” of appellant; and while we think the declaration that Preston was the accomplice of appellant was hardly warranted by the proof, yet we do not consider the expression of such opinion or conclusion on the part of the district attorney in argument as prejudicial error.
We have carefully examined the other remarks complained of, and do not find any of them obnoxious to the rule often announced by this -court prescribing the bounds for legitimate argument. See Kansas City Southern Ry. Co. v. Murphy, 74 Ark. 256" date_filed="1905-02-18" court="Ark." case_name="Kansas City Southern Railway Co. v. Murphy">74 Ark. 256, where the cases are collated. - While some of them, especially those denunciatory of appellant personally, are in bad taste, yet they do not so far offend in this direction as to indicate that the jury were likely to be prejudiced by them.
3. The jury might have found from the evidence that appellant, full of malevolence towards the Gleghorns on account of a fancied wrong which they had done him, deliberately sought them out on their own premises, where they were at work, provoked them to combat, and shot them to death. Plis previous ill-tempered declarations in the nature of threats against the Gleghorns, and the dying declaration of John Gleghorn, fully warrant the jury in finding appellant guilty of murder in the first degree.
Judgment affirmed.