Felker v. State

• Decision Date: 16 May 1891
• Parties: FELKER v. STATE
• Court: Arkansas Supreme Court

16 S.W. 663

54 Ark. 489

FELKER v. STATE

Supreme Court of Arkansas

May 16, 1891

APPEAL from Franklin Circuit Court, Ozark District, HUGH F THOMASON, Judge.

Judgment reversed and cause remanded.

J. V Bourland and W. L. Terry, for appellant.

1. It was error to refuse to permit appellant to prove that Dain had rejected the "test" of the sound of the guns. This was a relevant circumstance as affecting both the animus and credibility of the prosecuting witness.

2. The court erred in remarking "that a man charged with crime has no right to manufacture evidence in his own favor." 51 Ark. 147.

3. It was error to allow the State to cross-examine Dain for the purpose of showing that the proposed "test" was not made in good faith. 43 Ark. 104.

4. Proof of an attempt at arson was not competent. 15 N.H. 174; 55 N.Y. 81, 90; 37 Ark. 265; 39 id., 280; Wh. Cr. Ev., secs 31, 32 et seq.; Steph. Dig. Ev., art. 11, p. 18, and art. 12, p. 22; 1 Allen, 572; 9 Cush. 594; Wh. Cr. Ev., sec. 48, and p. 47; 51 Ark. 513; 3 So. 618; Wh. Cr. Pl. & Pr., secs. 801-2.

5. The first instruction is erroneous, in that it leaves out the question of intent, the very essence of the offense. Wh. Cr. Law, sec. 641; 24 Ark. 348. The second instruction erroneous, vicious and misleading. Sec 1521, Mansf. Dig. The third instruction was erroneous. Thomp. on Trials, sec. 2309. The fourth contained long recitals of facts which tended to confuse. 31 Ark. 666; 36 id., 117. It gave undue prominence to isolated parts of the evidence. Thomp. on Trials, sec. 2330; 37 Ark. 333; 30 id., 383. It is misleading, and does not state the law correctly. 24 Ark. 348; Mansf. Dig., sec. 2007; Wh. Cr. L., sec. 648. It is open to other objections--it was argumentative; Thomp. on Tr., sec. 2301--stated facts; ib., secs. 2324, 2295; 37 Ark. 598.

6. The record fails to disclose that the indictment was duly returned into court. This cannot be cured by nunc pro tunc order without defendant's presence. 39 Ark. 180; 24 id., 636.

7. The indictment is fatally defective. 24 Ark. 348. No felonious intent is charged. See also 34 Ark. 276.

W. E. Atkinson, Attorney-General, for appellee.

1. There was no error in refusing evidence of the proposed "test." It was merely an attempt to manufacture evidence.

2. The evidence of Dain of the alleged attempt at arson is within the exceptions to the rule, and admissible to show the motives of defendant. 2 Bish. Cr. Pro., sec. 628; 43 Ark. 371; 52 id., 309; 14 id., 560.

3. It is too late after verdict to object that the nunc pro tunc order was made in defendant's absence. 12 Ark. 260.

4. Milan v. State, 24 Ark. 348, states the common law correctly, but its strict rules have been modified by our code. Mansf. Dig., secs. 2106, 2107, 2121; 69 Ill. 526.

HEMINGWAY, J. Judge MANSFIELD did not participate in the consideration or determination of this cause.

OPINION

HEMINGWAY, J.

The appellant was tried and convicted of an assault with intent to murder one B. W. Dain, and prosecutes this appeal to reverse the judgment upon the verdict.

1. It is insisted on behalf of the appellant that it does not appear from the record that the indictment upon which he was tried was returned into court by the grand jury. There was no entry of record showing the return of the indictment. It bears the clerk's indorsement that it was "Filed in open court on the 22d of February, 1890." No point was raised as to the manner in which it was found or presented until after the jury returned its verdict, when an effort was made to arrest the judgment. Then there was an effort on the part of the State to supply the omission by a nunc pro tunc entry, as of the 22d of February, 1890, reciting the return of the indictment into court by the grand jury. So far as the transcript discloses, the proceeding to correct the record was ex parte. It is well settled in this State that the record must show a return of the indictment by the grand jury--that an indorsement by the clerk upon an indictment that it was filed in open court does not satisfy the requirement--and that an omission in that respect cannot be cured by a nunc pro tunc order made in the absence of the defendant. McKenzie v. State, 24 Ark. 636; Green v. State, 19 Ark. 178; Halbrook v. State, 34 Ark. 511; Holcomb v. State, 31 Ark. 427; Miller v. State, 40 Ark. 488. Such objections should be raised by motion to set aside the indictment (Mansf. Dig., sec. 2157); but whether a party, who fails to make such motion and proceeds to trial upon an indictment bearing the ordinary badges of regular and authentic origin, can raise the objection after conviction, is a question we need not decide. A just and speedy administration of the law favors the practice by motion to set aside, and whether it be the only method of reaching the omission or not, it should in practice be adopted by those who question the genuineness of indictments.

2. But it is insisted that, conceding the indictment to have been properly found and presented, it is fatally defective in its allegations and insufficient to support a judgment. The defect relied upon is in the allegation charging the intent with which the assault was committed. The allegation as to the assault is full enough to satisfy the most exacting requirement, and seems to follow established precedents; instead of following the allegation as to the assault with the usual form of allegation as to the intent, which would be "with intent, him, the said Dain, then and there feloniously, wilfully and of his malice aforethought to kill and murder," it substitutes, "and him, the said Dain, unlawfully, feloniously, after premeditation, deliberation, and of his malice aforethought, did attempt to shoot, kill and murder." It is argued that the terms employed are not the legal equivalent of those used in defining the offense and found in approved forms, and that the variance is fatal to the indictment. To sustain this contention Milan v. State, 24 Ark. 346, is relied upon. But a marked and commendable change has taken place, since that case was decided, in the rules governing criminal pleading and practice, and many matters then deemed substantial are now treated as formal. In the case of Dilling v. State, ^[*] determined by this court in an unreported opinion by Judge SANDELS, we declined to follow Milan's case, and sustained an indictment which, after charging an assault to have been committed wilfully, feloniously and of malice aforethought, omitted those descriptive words in charging the intent to commit the higher crime. State v. Lynch, 20 Ore. 389, 26 P. 219. The elements of the crime charged are, (1) the commission of an assault with malice aforethought, and (2) an intent to commit the independent felony. As before stated, there is no objection to the form in which the first element is charged; and this narrows the consideration to the sufficiency as to the charge of intent. The indictment must charge an assault "with intent to kill and murder," either in express terms or in terms that import a legal equivalent. Is this requirement answered by the charge of an assault and attempt to kill and murder? An attempt to do an act necessarily implies an intent to do it, coupled with some other act designed to accomplish the intent. There is no such thing conceivable as an attempt to kill and murder without an intent to do it; so that the allegation, by the necessary signification of its terms, charges the criminal intent in terms as plainly expressing it as those found in the statute. This in reason is all that the defendant could ask; and the statute expressly provides that "the words used in a statute to define an offense need not be strictly pursued in an indictment, but other words conveying the same meaning may be used." Mansf. Dig., sec. 2119. We are satisfied that the variance in this indictment is one of form, wholly without substance, was not misleading, and is therefore no basis for an objection to the indictment. While we would not encourage an ignoring of precedents or a departure from the descriptive words of statutes, we do not think that a tolerance of such practice in instances like this imperils the rights or liberty of any citizen.

3. The appellant's next objections relate to the exclusion of evidence offered on his behalf, to a remark of the judge made in the hearing of the jury when ruling it out, and to the admission of certain evidence on the part of the State relating to the same matter. It is an undisputed fact that on the occasion of the assault charged, two shots were fired, one by the defendant and the other by Dain. The parties to the difficulty were the only persons who witnessed it, and each states that the other fired first. Neighbors heard the shooting and distinguished the order of the shots by the character of the report, but could not state which party fired the first shot. Before the trial outsiders proposed to Dain that the guns used by the parties on the night of the difficulty be fired in the hearing of the said neighbors, under as nearly the same circumstances as possible, by disinterested and reliable parties, who would observe which gun was fired first, so that the neighbors might determine which gun fired at this time was first discharged during the difficulty; but Dain declined to participate in the experiment. The appellant offered to prove this proposal and its rejection by Dain, but the court ruled the evidence inadmissible. If the experiment proposed had been of a kind that promised to furnish a true test as to the matter of difference, or if it had appeared that Dain so thought, its rejection by him would have tended to prove that he was the conscious author of a false narrative, and it would for that reason have been admissible to discredit him. ...