Kent v. State

• Decision Date: 03 July 1897
• Citation: 41 S.W. 849,64 Ark. 247
• Parties: KENT v. STATE
• Court: Arkansas Supreme Court

41 S.W. 849

64 Ark. 247

KENT v. STATE

Supreme Court of Arkansas

July 3, 1897

Appeal from Izard Circuit Court, JOHN B. MCCALEB, Judge.

STATEMENT BY THE COURT.

The grand jury for the southern district of Sharp county returned an indictment against William Kent, charging him with stealing $ 1,800 in money from Robert Wooldridge. Kent filed an application for a change of venue from said district on the ground that the minds of the inhabitants thereof were so prejudiced against him that a fair and impartial trial could not be had in said district. The prayer of the petition was sustained, and the venue changed to Izard county. Afterwards he filed in the Izard circuit court a motion to dismiss the action for want of jurisdiction, which motion was overruled. Upon the trial it was shown that Robert Wooldridge, an old man, had in his possession at the time of the larceny about $ 1,800, of which he was the owner. At the time of the larceny he was staying at the house of his son, Brownlow Wooldridge. The wives of Brownlow Wooldridge and Kent were sisters, and on the night of the larceny Kent and his wife stayed with Brownlow. The old man, Robert Wooldridge, retired early, and placed' his vest, containing his money, under his pillow between the feather-bed and mattress upon which he was sleeping. Brownlow Wooldridge and wife and also Kent and wife slept in the same room with Robert Wooldridge. During the night some one entered the room, and took the vest containing the money, and carried it away. Mack Johnson, a witness for the state, testified that he committed the larceny at the request of Kent, who was present, aiding and abetting. He stated that the larceny was suggested by Kent who told witness that old man Wooldridge had money, and was staying with his son, Brownlow; that he (Kent) had "fixed everything all right" by sending his wife there, and would spend the night there himself. Witness also stated that by arrangement with Kent he went to the house on the night of the larceny. Kent came out of the house, and met him. After some conversation Kent re-entered the room, and witness, acting on Kent's suggestion, followed him, and remained there about half an hour. He then went to the bed where the old man was sleeping, and took the vest and money. Afterwards he divided the money with Kent. The other evidence is sufficiently stated in the opinion.

Judgment affirmed.

Yancey & Fulkerson, for appellant.

The Izard circuit court had no jurisdiction. The venue should have been taken to the northern district of Sharp county. Acts 1893; p. 58, § 7. The act is constitutional. 53 Ark. 211; 35 id. 386. Defendant was entitled to a trial by a jury of Sharp county. Const. 1874; 32 Ark. 569; 30 id. 41. There was no evidence to base instruction No. 7 upon. 24 Ark 251; 58 Ark. 353, 366. It was error to give instruction 5 and refuse 8. The first is too narrow; the latter is in the language of the statute. 58 Ark. (353) 365; 22 Pick. (Mass.) 397; 1 Am. & Eng. Enc. Law (2 Ed.), 403. It was error to admit the testimony of Will Simpson; it was not competent. 68 Ala. 580.

E. B. Kinsworthy, Attorney General, for appellee.

The venue was changed on defendant's own motion. The two districts of Sharp county are as if separate counties. Acts 1893, § 7, p. 58; art. 2 § 10, const.; 53 Ark. 211. Instruction 7 was supported by ample evidence. Instruction No. 5 is the law. Sand. & H. Dig., § 2230; 50 Ark. 544; 57 Iowa 431; 19 id. 169; 56 F. 21; 40 Ala. 684; 68 id. 56; 73 Cal. 313; 53 Iowa 299. If the corroborating evidence tends to connect defendant with the crime, it is sufficient. 60 N.W. 66. Circumstantial evidence, if it is material, and tends to connect defendant with the crime, is sufficient. 52 Ark. 181; 75 Cal. 305; 92 Ga. 313. The testimony of Will Simpson strongly supports the evidence of Mack Johnson. 2 Hawks (N. C.), 449; 12 Wend. (N. Y.) 78. There is enough evidence to sustain the verdict.

RIDDICK J. Absent WOOD, J.

OPINION

RIDDICK, J., (after stating the facts.)

The appellant, Kent, was indicted by the grand jury for the southern district of Sharp county for larceny alleged to have been committed in said district. He afterwards made an application for a change of venue from said district, and the circuit court changed the venue to Izard county. Appellant now contends that, as his application for a change of venue applied only to the southern district of Sharp county, and not to the whole of said county, the circuit court had no authority to change the venue to another county, and that for this reason the circuit court of Izard county was without jurisdiction to try the case. But with this contention we cannot agree. The act of 1893, which divided the county of Sharp into two districts, provided, among other things, that the circuit courts of the two districts "shall be as distinct from each other, and have the same relation to each other, as if they were circuit courts in different counties, and may change the venue from one district to another, or to any other county, in the judicial circuit in like manner as changes of venue are granted in this state." It was further provided that for the purposes of the act the two districts should be considered as separate and distinct counties, and that citizens of the county should only be compelled to serve on juries of the district in which they reside. Counsel for appellant concede that the provisions of this act are constitutional. By virtue of such provisions the defendant had only the right to a trial by a jury of the district in which the crime was committed. Walker v. State, 35 Ark. 386. Had he been tried in the district where he was indicted, he could not have complained that the act limited the selection of jurors to persons residing in that district. Walker v. State, supra; Wells v. State, 53 Ark. 211, 13 S.W. 737. In other words, the provision of the constitution which guaranties him the right of trial by an impartial jury of the county in which the crime is committed is satisfied by a trial before a jury of the county selected from that district in which the crime was committed. But appellant waived the right to such a jury--the only jury of the county that under the constitution and statute he had a right to demand--by his motion for a change of venue. He had no right to a trial by a jury of the other district, and it was within the discretion of the circuit court to change the venue either to the other district or to another county. We are therefore of the opinion that the circuit court committed no error in overruling the motion to dismiss for want of jurisdiction.

Appellant further contends that the presiding judge erred in refusing to give to the jury the following instruction, to-wit: "A conviction cannot be had in any case of felony upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows that the offense was committed and the circumstances thereof." This instruction, copied from the statute (Sand. & H. Dig., § 2230), is correct, clear and easily understood, and might well have been given, but the circuit judge had previously given to the jury two instructions, on his own motion, which, although some longer, we think are in meaning the same as the instruction asked.

In one of the instructions given the jury were told that, in order to convict, it was necessary that the testimony of the accomplice should "be corroborated by other testimony tending to connect the defendant with the commission of the crime." In the other instruction the judge, speaking to the jury, said it is not necessary that the evidence of the accomplice "be corroborated, on every point on which he has testified, but if you believe that he is corroborated as to the commission of the crime charged, and on any point tending to connect the defendant with the commission of the offense, and if the evidence with this corroboration is sufficient to satisfy your minds...