Hodges v. State

• Decision Date: 12 January 1914
• Parties: HODGES v. STATE
• Court: Arkansas Supreme Court

163 S.W. 506

111 Ark. 22

HODGES v. STATE

Supreme Court of Arkansas

January 12, 1914

Appeal from Clark Circuit Court; Jacob M. Carter, Judge; affirmed on the merits; reversed on the petition for writ of error coram nobis.

STATEMENT BY THE COURT.

Appellant was tried and convicted upon an indictment charging him with the crime of murder in the first degree. He filed a motion for a new trial in which, among other grounds, it was alleged that appellant was insane at the time of his trial and that that fact was unknown to his counsel until after the trial. The motion for a new trial was overruled and this appeal was taken from the judgment of the court pronounced upon the jury's verdict. Thereupon appellant by his next friend filed in the court below a petition for a writ of error coram nobis, with numerous exhibits thereto, in which it was alleged that appellant was insane at the time of his trial and that this fact was not known to his attorneys until after the conclusion of the trial. The prayer of this petition was denied and a writ of certiorari was sued out, and upon its return we have that record before us.

These proceedings have been consolidated and briefed together and the questions there raised will be disposed of in this opinion.

It is contended in the main case that the evidence is insufficient to support the verdict and that the proof fails to show any premeditation. No objection is urged to the instructions.

It appears that appellant was arrested by Morgan Garner, a constable of Clark County, assisted by one J. E. Chancellor upon a charge of having stolen a pistol and some trinkets of small value. At the time of the arrest appellant inquired of Garner whether he had a warrant commanding his arrest, and upon receiving a negative reply, appellant declined to submit to arrest, whereupon Garner thrust a pistol in his face and directed him to throw up his hands and to submit to a search of his person. It appears that appellant was armed with a pistol at the time he was searched, but the officer failed to find the weapon and appellant retained it in his possession and shortly thereafter shot Garner with it twice, killing him, and these proceedings grow out of that homicide.

Appellant testified at the trial that when he was arrested, Garner insulted, abused and beat him, to all of which he submitted although he became angry, and quarreled with Garner, but did not attempt to resent the insult or to resist the assault upon him, further than to warn Garner against a repetition of his conduct. He testified that after submitting to the arrest and while in Garner's custody, en route to the town where he was being carried, that angry words passed between them and that Garner undertook to shoot at him, whereupon he drew his own pistol and fired it in the air to frighten Garner and then shot over him for the same purpose and without any intention of killing him. Chancellor testified that after the arrest he and appellant and deceased were in a buggy, when they came to a rough place in the road, and he asked deceased and appellant to get out of the buggy and walk across a little ravine, while he led the mule by the road; that he heard appellant tell deceased to throw up his hands and saw appellant fire two shots, when deceased drew his own revolver, which was in bad order but which deceased succeeded in firing one time. The general purport of Chancellor's evidence was that appellant killed deceased in making his escape, and he did make his escape, and was not rearrested for several days thereafter. These were the issues at the trial, and the evidence of Chancellor, which was evidently accepted by the jury as the truth, is sufficient to sustain the verdict of the jury.

In response to questions as to his residence and occupation, appellant testified he had spent two months in an insane asylum in Oklahoma, and on his cross examination the following questions were asked and answers given:

Q. Were you insane when you killed Mr. Garner?

A. I had my mind.

Q. You knew perfectly well what you were doing?

A. Yes, sir; but I did not know at that time I killed him. I didn't try to kill him; I wasn't trying to kill him and didn't shoot at him to kill him.

No proof was offered in support of the defense of insanity and no instruction submitted that question to the jury and it was not an issue in the case. The motion for a new trial set up newly discovered evidence, which could not have been known or have been produced at the trial, to the effect that appellant was insane, but no attempt was made to establish that fact further than to recite it as a fact in the motion for a new trial. But attached to the petition for writ of error coram nobis were a number of exhibits supporting appellant's plea of insanity as follows:

1. A certified transcript of a proceeding in Oklahoma in which appellant had been adjudged insane on the verdict of a jury.

2. The affidavit of a practicing physician residing at Idabel, Oklahoma, that he had examined appellant and knew him to be insane.

3. An affidavit in which the affiant stated he had known defendant for thirteen or more years during which time appellant had been considered insane.

4. The affidavit of eleven witnesses who described the fits or spells with which they said appellant was afflicted.

5. The joint affidavit of five witnesses describing the temper and conduct of appellant.

6. The affidavit of an employee at the penitentiary, where appellant has been confined since his conviction, stating that affiant had seen appellant having several convulsions in which he would become unconscious and remain so for from fifteen to forty-five minutes, and during which time he would almost stop breathing and his pulse beat would scarcely be perceptible.

7. The affidavits of five physicians responding to hypothetical questions in which they state their opinion that the person inquired about was insane.

8. The affidavit of appellant's father that affiant and his wife were first cousins and that there was insanity and epilepsy in his family, and that appellant was only nineteen years old and had never been intelligent.

The prayer of the petition as has been stated was denied, and that proceeding is before us on certiorari.

Reversed and cause remanded.

Smith & Haynie and Jones & Owens, for appellant.

On the main case:

1. The evidence does not support the verdict, and a new trial should have been granted for this cause. Where the evidence is legally insufficient to support a verdict, it should be set aside. 25 So. 287; 41 Fla. 77. A trial court, on a motion for new trial, is not bound by the rule as to the conclusiveness of a jury's finding on conflicting testimony, but it is its duty, when not satisfied with the verdict, to set it aside and grant a new trial. 60 P. 847; 128 Cal. 322; 36 S.E. 967, 111 Ga. 887.

2. A new trial should have been granted because of appellant's insanity, evidence of which was discovered by his counsel after the trial, but was not known to them, and could not by reasonable diligence have been discovered by them prior to the trial. This was newly discovered evidence, material to appellant's defense, which would have justified the granting of a new trial. Kirby's Dig., § 2422; Id. §§ 1550-1552; Id. § 2277; 69 Ark. 167...