Morris v. State

Decision Date03 October 1921
Docket Number129
Citation233 S.W. 801,150 Ark. 1
PartiesMORRIS v. STATE
CourtArkansas Supreme Court

Appeal from the Stone Circuit Court; Dene H. Coleman, Judge affirmed.

Judgment affirmed.

S. W Woods, for appellant.

The motion for new trial on the ground of newly-discovered evidence should have been sustained, as it met all the requirements laid down in 2 Ark. 33.

Under our law the witness Shanks could not have been compelled to incriminate himself by his testimony in the case, but, after his expressed willingness to testify was made known to appellant, this testimony stood in the same position as newly discovered testimony.

The courts of some States have held that where several parties were jointly indicted and tried, and the defendants were not competent witnesses, and part were convicted and part acquitted, those who were convicted were entitled to a new trial, so that they could avail themselves of the testimony of the acquitted defendants. 41 Tex. 172; 19 Am. Rep. 38; 52 Tex.Crim. 465; 56 Tex.Crim. 202.

J. S Utley, Attorney General; Elbert Godwin and W. T. Hammock, assistants, for appellee.

Appellant in his motion for new trial did not meet the requirements laid down by 2 Ark. 33. Shanks could have been put on the witness stand, and if he had there denied that he had done the shooting, under § 4186, C. & M. Digest, appellant could then have introduced various witnesses to whom Shanks had stated that he had shot Taylor. It is worthy of note that these parties to whom Shanks made his statements were all close personal friends of the appellant.

The finding made by the court, after hearing the testimony of Shanks and Ware, that the affidavits made by them were not based on the truth, should have the same sanctity as the verdict of a jury.

OPINION

MCCULLOCH, C. J.

Appellant was convicted of the crime of assault with intent to kill, alleged to have been committed by shooting one Taylor with a gun. It is undisputed that Taylor was shot and seriously wounded as he was driving along a lonely part of the road late in the evening of March 26, 1921, returning to his home in Stone County from Mountain View, the county seat.

Taylor testified that appellant did the shooting. His statement was, in substance, that as he was driving along in a wagon he saw appellant come out into the road with a gun on his shoulder, and, after walking a short distance in the direction of the witness, he turned into the bushes, and as the witness drove by he fired the shot which took effect in the shoulder of witness. He testified that he saw appellant and recognized him as he fired the gun.

Appellant testified in his own behalf, and denied that he fired the shot or was present when the prosecuting witness received the wound. Appellant testified that he was out in the woods hunting for strayed goats, and upon hearing the shooting he went to the scene and ascertained for the first time that the witness, Taylor, had been shot. There had been previous difficulties and ill-will between the parties, and each one in his testimony placed the blame for their troubles on the other. There was other testimony in the case bearing with more or less force on the question as to who fired the shot, but all of the direct testimony on that issue came from the two parties to the encounter, the appellant and Taylor.

After the return of the verdict appellant filed a motion for new trial, setting up, in addition to other grounds, the discovery of new evidence. It was alleged in the motion that Taylor was shot by one Shanks, and there was filed with the motion certain affidavits tending to...

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