100 Ark. 180 | Ark. | 1911
Defendant, F. J. Walker, was convicted of murder in the first degree for killing one Sam Smith on May 4, 1911, at Dell, Mississippi County, Arkansas. The indictment against him for this offense was returned by the grand jury on May 15, and he was placed on trial May 25, after the overruling of his motion for a continuance in order to procure the attendance of an absent witness, Wilson Murray by name. It was alleged in the motion that Murray was present when the homicide occurred, and his testimony would, if given on the witness stand as set out in the motion, tend to excuse it, or at least to reduce it to a lower degree than murder. Murray is, as appears from the testimony introduced before the court at the hearing of the motion for continuance, defendant’s relative. They were intimate companions, and worked together in a lumber camp, and Murray was present when the killing occurred, and accompanied defendant to the jail at Blytheville when he was arrested, but he had not been seen in that locality by any one since then. A subpoena was issued for the witness, but the sheriff and his deputies were unable to find him at the place indicated in defendant’s motion, or elsewhere. No one could be found who knew anything concerning the whereabouts of the witness. Under those circumstances, especially when the intimate relationship of the witness and the defendant be considered and his sudden and unexplained disappearance, we cannot say that the court abused the discretion, always reposed in trial courts, in the matter of granting or refusing continuances.
Error of the court is assigned in permitting the State to introduce testimony not properly in rebuttal after defendant had rested his case. The statute (Kirby’s Digest, § 2378) authorizes the presentation of testimony in chief after the defendant has closed his case when that appears to be necessary “in furtherance of justice, ” and of that the trial court must be the judge. It rests within the sound discretion of trial courts to permit testimony to be adduced out of time, and the exercise of that discretion will not be disturbed by this court unless an abuse is shown.
The court gave the following instruction, which, it is now insisted, was erroneous:
“The jury are instructed that if the evidence shows beyond a reasonable doubt that the defendant unlawfully killed Sam Smith, the person named in the indictment, in manner and form as charged therein, the burden of proving the facts and circumstances which mitigate, justify or excuse the homicide devolves upon the defendant, unless such facts and circumstances sufficiently appear from the evidence offered by the State. If the defendant has failed to prove such facts and circumstances, and they do not otherwise appear, you cannot consider them as matters proved in this case. But if, upon the whole case, you have a reasonable doubt that the killing amounted to murder, you cannot find the defendant guilty of that crime. However, the burden of proving these circumstances, which make a murder murder in the first degree, can never devolve upon the accused. The burden rests upon the State throughout the case, whatever else may arise. ”
It is argued that this instruction took away from defendant all benefit of any reasonable doubt which might have arisen in the minds of the jury and placed upon him the burden of proving that he is not guilty of murder. Such is not the effect of the instruction, when read as a whole. It follows, in substance, the language of the statute (Kirby’s Digest, §1765), but contains a further statement that the burden upon the whole case is upon the State to prove the killing by the accused beyond a reasonable doubt. Cogburn v. State, 76 Ark. 110; Petty v. State, 76 Ark. 515; Childs v. State, 98 Ark. 480.
The evidence in the case fully warranted the jury in finding the defendant guilty of murder in the first degree, but to set it out here in detail would serve no useful purpose.
• We have examined the record carefully, and find no error of the court, so the judgment must be affirmed, and it is so ordered.
