Gill v. State

• Decision Date: 23 July 1894
• Citation: 27 S.W. 598
• Parties: GILL v. STATE.
• Court: Arkansas Supreme Court

27 S.W. 598

GILL v. STATE.

Supreme Court of Arkansas.

July 23, 1894.

Appeal from circuit court, Union county; Charles W. Smith, Judge.

Jim Gill was convicted of murder in the second degree, and appeals. Reversed.

Jesse B. Moore, for appellant. James P. Clarke, Atty. Gen., and Charles T. Coleman, for the State.

WOOD, J.

The appellant was jointly indicted with Jack Gill, in the Union circuit court, for the crime of murder in the first degree. The indictment is in two counts; the first charging appellant as principal with Jack Gill, and the second charging his as accessory before the fact to the murder by Jack Gill. It is permissible to charge one as principal and as accessory before the fact, in the same indictment. Lay v. State, 42 Ark. 105; Thompson v. Com., 1 Metc. (Ky.) 13; 2 Bish. Cr. Pr. § 7. The court did not err in overruling the demurrer, nor in refusing to require the state to elect, since the second count was only a different mode of charging the same offense. Lay v. State, supra.

The appellant was tried and convicted of murder in the second degree. The jury found him guilty as principal.

We find no error prejudicial to appellant in the first, second, third, fourth, fifth, sixth, seventh, eighth, and ninth instructions given at the request of the state. Of those relating to murder in second degree and manslaughter, the appellant cannot complain, since the deceased was killed by some one lying in wait. Mansf. Dig. § 1521.

The tenth and sixteenth are incomplete, and, taken alone, would be misleading, in not declaring the extent to which the testimony of an accomplice must be corroborated in order to justify conviction. But the necessary supplement to these is found in the fourth given at the request of appellant, which is a correct enunciation of the law. Vaughan v. State, 58 Ark. 353, 24 S. W. 885, and cases cited; Mansf. Dig. § 2259.

The court might very well have refused the eleventh, twelfth, and thirteenth given at the instance of the state, because there is nothing in this record to indicate that the state was seeking conviction upon circumstantial evidence alone. Vaughan v. State, supra. The giving of them, however, cannot be said to be error, if they are correct, since there was circumstantial as well as direct evidence in the case. The eleventh is correct. The twelfth tells the jury, "If the facts and circumstances proven by the preponderance of evidence are such as to satisfy the jury beyond a reasonable doubt, then such evidence is entitled to the same weight as direct or positive testimony." This was error. It would allow conviction in criminal cases upon a preponderance of the evidence. The guilt or innocence of the prisoner, in cases depending on circumstantial evidence, is always reached by a process of inference or presumption from certain facts proved by direct evidence. 1 Greenl. Ev. p. 22, note 1. If these facts, which form the basis of the inference of guilt, are only to be proved by a preponderance of the evidence, how can it be said that the prisoner's guilt has not been established by a preponderance? The foundation being unsound, the superstructure is necessarily incomplete; so that the vice of the first part is not removed by the latter part, which says, "such as to satisfy the jury beyond a reasonable doubt," and "that the evidence must be of such a character as to exclude every reasonable hypothesis, other than that the defendant is guilty." The jury might believe facts proved by a preponderance of evidence, and from these, so proved, have no reasonable doubt of the defendant's guilt; yet they might have a reasonable doubt as to whether the facts themselves, from which they had inferred guilt, had been established beyond a reasonable doubt. The facts themselves, from which the inference of guilt is drawn, must be proved beyond a reasonable doubt. 1 Greenl. Ev. p. 22, note 1; People v. Ah Chung, 54 Cal. 398; Com. v. Doherty, 137 Mass. 245. The instruction declares the law, with the words, "by the preponderance of evidence," omitted. Since there is no difference in the kind of probative force required, whether the case be one depending upon positive or circumstantial evidence, the thirteenth was improper and unnecessary, though we cannot say, in view of the other instructions, that it was prejudicial.

The fourteenth told the jury "that Will McGough was heretofore jointly charged and indicted with the defendant for the alleged murder of Simon P. Sherman, and that the state, by its prosecuting attorney, and leave of the court, have dismissed the indictment as to him, then this fact is not to be taken into consideration by the jury in determining the guilt or innocence of defendant." Will McGough was an accomplice. He says he was indicted with Jack and Jim Gill for the murder of Sherman; that he made the confession in the case because he believed he would be turned loose if he made the statements testified to by him. In view of this proof, this part of the fourteenth instruction was erroneous and prejudicial. McGough was offered by the state as the only eyewitness to the transaction. His testimony was very material, and very damaging to the accused. While he was an accomplice, and stood discredited by the law, to the extent that a conviction could not be had upon his uncorroborated testimony, yet his credibility was with the jury; and if they believed him, and found his testimony corroborated as the law requires, the effect was necessarily most detrimental to appellant. Therefore, the jury should have been allowed to consider any fact throwing light on the credibility of this witness. How strongly he was actuated to testify for the state by the hope of having the case against him...