Whitley v. State, 114 Ark. 243

Whitley v. State

114 Ark. 243 | Ark. | 1914

Wood, J.,

(after stating the facts). (1-2.) It was not error for the court to admonish the jury of the importance of the case and to express the hope'that they might be able to arrive at a verdict. After the jury had deliberated for six and a half hours, it was not error for the court to say to them, ‘£ There ought to be no difficulty in arriving at a verdict where the evidence is as plain and short as it is in this case.” The court, by this language, did not express an opinion upon the merits of the case as a whole, or upon any particular fact in evidence. It was a comment upon the character of the evidence as a whole, hut without any intimation of the opinion of the court-as to whether the evidence tended to show guilt-or innocence.

In Bishop v. State, 73 Ark. 568, we said: “It is entirely proper for a trial judge, and it is his duty at all stages of the deliberations of the jury, to make plain the obligation resting upon them, if possible, to agree upon a verdict consistent with the facts and the concurring individual convictions of each juror.” See, also, St. Louis, I. M. & S. Ry. Co. v. Devaney, 98 Ark. 83-87, where we said: “The trial judge may properly admonish the jury as to the importance or desirability of their agreeing on a verdict. ’ ’

The language used by the court in the case at bar was only an expression upon the part of the court of a desire to have the jury return a verdict in the case, but there was no intimation by the court that he was of the opinion that the evidence, as a whole, or any part of it, indicated appellant’s guilt.

(3) The court’s instruction on the good character of appellant for peace and quietude was in conformity with the law on that subject as announced by this court. See, Kee v State, 28 Ark. 164; Edmonds v. State, 34 Ark. 743; Rhea v. State, 104 Ark. 162.

The only doubtful issue in the case was as to who was the probable aggressor. According to the testimony for the State, the appellant brought on the fatal rencounter without any provocation whatever. The testimony introduced on the State’s behalf tended to show that the appellant armed himself and deliberately sought out Munn and shot him to death because he was a successful suitor for the hand of Miss Baty in marriage. Jealousy, according to the testimony for the State, was the only cause for the unfortunate billing.

On the other hand, according to the testimony of the defendant himself, he approached Munn for an explanation in regard to a letter which he, the appellant, conceived that Munn had dictated or caused to be written, and that thereupon Munn made a demonstration as if to draw a weapon, when the appellant began shooting him in .self-defense.

The only issue, therefore, that was determinative of the guilt or innocence of the accused was as to whether the defendant or the deceased was the aggressor. It was not error, in this state of the case, for the court to tell the jury that the evidence of good reputation prior to the commission of the crime was introduced for the purpose of throwing light upon the question as to who was the probable aggressor.

(4) Some of the prayers for instructions on behalf of appellant concerning good character told the jury that if good character was shown, it might of itself create such a reasonable doubt as would justify a verdict of acquittal; that “when proved strong enough, it will warrant- the jury in believing the defendant innocent;” and, again, that “it is a strong circumstance to determine who was the probab'le aggressor,” and, also, “to determine whether or not defendant shot in self-defense,” etc. Instructions in this form were clearly argumentative and expressly told the jury that the effect of the proof of good character would justify them in believing the defendant innocent. These prayers for instructions were an expression of the court on the weight to be given to the evidence -on this particular phase of the -case, and were erroneous.

So much of the prayers concerning good character as correctly stated the law were covered by the instruction which'the court gave..

The testimony of witnesses Horn and Staton tended to corroborate the testimony of the defendant himself to the effect that the deceased, during the shooting, had his hand at his hip pocket. The testimony of witness Austin Flynn tended to show that it was impossible for Horn and Staton to have seen what they claimed, on account of an iron column and -other obstructions in their line of vision.

Thereupon, the attorneys for the State and for the defendant requested that the jury be sent to the scene of the killing in charge of the sheriff, and the defendant requested that the court send witnesses Horn and Staton with the jury to the scene of the killing to -show or point out to the jury their respective positions at the time the shooting occurred, or else to send some proper person who knew where Horn and Staton claimed to have been at the time of the shooting to so point out their respective positions at the time of the shooting to the jury. The court refused to send either Horn or Staton, or any other person, with the jury to point out the positions of .Horn and Staton at the time of the shooting; to which ruling of the court the defendant at the time excepted.

The record shows that the court did not accompany the jury to the scene of the killing, and that he did not appoint any person to accompany the jury other than the sheriff and his deputy, nor did he appoint any person to point out to the jury the scene of the killing. The defendant was not with the jury while they were gone to inspect the scene of the killing, but remained in the custody of the officer. Neither he nor his counsel requested that he be permitted to accompany the jury to the scene of the killing.

Appellant made a request that the court postpone sending the jury to the scene of the killing until after witnesses Horn and Staton were called to the stand to point out on the drawing that had been introduced, and to testify as to their respective positions at the time the shooting was taking place. The court instructed the sheriff to proceed with the jury to the scene of the killing, saying that the above witnesses could be introduced later, and that the jury would be better able to understand the positions as pointed out to them. The appellant duly objected and excepted to the rulings of the court.

We find no error prejudicial to appellant in any of these rulings. The statute provides:

“When, in the opinion of the court, it is necessary that the jury should view the place in which the offense is charged to have been committed, or in which any other material fact occurred, it may order the jury to be conducted in a body, in the custody of proper officers, to the place, ■which, must he shown to them by the judge or a person appointed by the court for that purpose.

“Such officer must be sworn to suffer no person to speak or communicate with the jury on any subject connected with the trial, nor do so themselves, except the mere showing of the place to be viewed, and return them to the court without unnecessary delay, or at some specified time.” Kirby’s Digest, § § 2379, 2380.

(5) The direction by the court to the sheriff to proceed with the jury to the scene of the killing was sufficient to meet the requirements of the statute. The scene of the killing had been accurately described by the witnesses who had testified before the view was requested, and from the description that had been given of the place where the fatal encounter took place the jury must have been fully apprised of the scene of the killing. It was therefore unnecessary, under these circumstances, to send some one specially designated to point it out to them. Besides, the direction of the sheriff to proceed with the jury to the scene of the killing was virtually an instruction to him to point out the scene to the jury. See, Benton v. State, 30 Ark. 328-350.

The testimony as to the location of the scene of the killing was not controverted. Under the evidence, there was no possibility of any mistake being made by the jury when they were directed to view the scene of the killing.

The sheriff and his deputy had been specially sworn in relation to their duties of keeping the jury together during the progress of the trial, and had been instructed not to allow the jurors to communicate among themselves, and they had been specially instructed not to communicate with the jury themselves, nor to allow any one else to do so.

The objections here made to the rulings of the court are well settled adversely to the contention of appellant in Curtis v. State, 36 Ark. 284-289, where we held as follows : ‘ ‘ The place of the homicide, and its surroundings had been described to the court and jury, by the witnesses who had been examined, and it appears'that the sheriff, under the order of the court, conducted the jury to, and showed them the place to be viewed, by them. The sheriff was not only acting under his oath of office, but it appears had been previously specially sworn as to his duties in relation to keeping the jury together, etc., to their duties during the view, before proceeding to make it. * * *”

(6) True, no special oath was administered to the sheriff or his deputy on the particular occasion of sending the jury to make a view, but the record shows that the sheriff had the jury in charge the night before “under proper oath and instructions as to the guarding of the jury,” and that the court “instructed the officers that they were under the same oath and instructions about guarding the jury as they were the night before, and not to permit any discussion of the case while they were viewing the scene of the killing, or while they were absent from the court room.”

The requirements of the statute as to the oath to be taken by the officers and instructions to be given them were sufficiently met by the oath which the officers took and the instructions they received, as shown by the record in this case.

(7) The court did not err in refusing to postpone the sending of the jury to the scene of the killing until witnesses Horn and Staton had testified as to their respective positions at the time the shooting was taking place. As we said in Curtis v. State, supra, “Whether the view is necessary, and the time during the trial of ordering and conducting it are within the discretion of the presiding judge.”

(8) The record shows that appellant was in court, and that neither the appellant nor his counsel requested that appellant be permitted to accompany the jury while they were gone to view the scene of the killing. This was a right which appellant had. Benton v. State, 30 Ark. 328; Owen v. State, 86 Ark. 317. But when his attorneys, for him, requested the view, and he and they for him failed to request that he be allowed to be present during the view, this was tantamount to voluntary absence on his part, and he thereby waived his right. Davidson v. State, 108 Ark. 191-203; McVay v. State, 104 Ark. 629. It does not appear from the record that the court, either expressly, or by implication, deprived appellant of his substantive right to be present at the view. The court did not refuse to permit him to be present. In Benton v. State, supra, the record was sufficient to show a refusal by the court to permit the accused to accompany the jury to the scene of the killing, as held in Owen v. State, supra.

(9) The court did not err in admitting testimony to the effect that the deceased was joking and in a mirthful mood one or two minutes before the killing. It was not shown that Munn had declared any evil or serious design concerning the appellant on the morning of the killing, much less that he was bent on a mission of murder. On the contrary, the testimony of appellant himself shows that he approached the deceased for the purpose of an explanation of the letter, and that it was then that the deceased resented the inquiry. The proof showing that the deceased was in a mirthful mood two or three minutes before the fatal meeting, which he was not anticipating, although wholly irrelevant, could not have prejudiced the rights of appellant.

(10) The court did not err in refusing to give prayer for instruction No. 18, requested by appellant. The instruction was fully covered by other instructions which the court gave on that subject. The court correctly instructed the jury as to the principles of law embodied in the refused prayer by giving the statute concerning the burden of proving circumstances of mitigation that justified or excused the homicide, etc.

There is no error in the record, and the judgment is affirmed.