Adkisson v. State

• Decision Date: 26 January 1920
• Docket Number: 140
• Citation: 218 S.W. 165,142 Ark. 15
• Parties: ADKISSON v. STATE
• Court: Arkansas Supreme Court

218 S.W. 165

142 Ark. 15

ADKISSON v. STATE

No. 140

Supreme Court of Arkansas

January 26, 1920

Appeal from Cleburne Circuit Court; J. M. Shinn, Judge; affirmed.

Judgment affirmed.

Bratton & Bratton, for appellant.

1. It was error to refuse the continuance. The court abused its discretion in so doing. 60 Ark. 567; 99 Id. 400; 71 Id. 180; 100 Id. 311; 110 Id. 251.

2. It was not proper for the court to usurp the province of the jury in passing on the credibility of the witnesses. 99 Ark 394; 110 Id. 256.

3. Immaterial and prejudicial evidence was admitted and instruction No. 23 was error. 93 Ark. 410; Wharton on Cr Law, §§ 622-5, 633.

4. It was error to refuse the challenges to jurors for cause and thus force defendant to exhaust his peremptory challenges. 102 Ark. 180 and cases cited.

5. The prosecuting attorney's remarks were clearly prejudicial. 30 A. & E. Enc. of Law, 1085-6, note 1; 5 Jones on Ev § 838; 114 Ark. 243.

6. The instructions refused should have been given and No. 23 modified as requested.

John D. Arbuckle, Attorney General, and Robert C. Knox, Assistant, for appellee.

1. There is no merit in the claim that objectionable testimony was admitted and excluded. No prejudice or error is shown.

2. Instruction No. 23 was properly given and there was no error in refusing No. 1 for defendant, nor No. 6.

3. The ruling of the court as to the qualification of the jurors was evidently correct. Mallory v. State, 141 Ark. 496.

4. The continuance was properly refused. 82 Ark. 203; 90 Id. 586; 91 Id. 497; 108 Id. 594; 100 Id. 180; 62 Id. 543; 125 Id. 269. The testimony of Rice was cumulative merely. 79 Id. 594; 86 Id. 317; 100 Id. 149; 120 Id. 562; 121 Id. 17; 125 Id. 269. There was no abuse of discretion by the court.

5. The remarks of the prosecuting attorney were not prejudicial nor erroneous.

OPINION

SMITH, J.

Appellant has assigned and discussed a number of errors, said to be prejudicial, occurring at the trial from which this appeal is prosecuted, and which resulted in a sentence of eighteen years in the penitentiary, upon a conviction for murder in the second degree.

The first of these assignments is that the trial occurred in an atmosphere of prejudice occasioned by the admission of testimony tending to show that appellant and members of his family who were indicted with him were disloyal, and that appellant was himself an evader of the draft. The testimony complained of was elicited, however, by witnesses who detailed the circumstances of the killing, it being shown that Porter Hazelwood, for whose murder appellant was convicted, was a member of a sheriff's posse, which was attempting at the time to arrest appellant, pursuant to direction of the military authorities, as an evader of the draft. The theory of the prosecution was that appellant and the members of his family, together with Leo Martin, his brother-in-law, had conspired together for the purpose of enabling appellant and Martin to evade the draft--that appellant and Martin had received orders to report for military duty and had failed and refused so to do, and were in hiding at the time, and that a part of the conspiracy was to resist with force, if necessary, any attempt to locate and arrest them. As tending to show this conspiracy, testimony was admitted to the effect that large quantities of provisions and ammunition were concealed near the home of appellant's father, this being the congregating point of the members of the alleged conspiracy. This testimony was competent, therefore, not only to show the conspiracy, but as tending to explain the circumstances under which the shooting commenced which resulted in Hazelwood's death.

Another assignment is the refusal of the court to continue the cause on account of the absence of Bill Rice, who was a member of the posse which attempted to arrest appellant at the time Hazelwood was killed and who was himself then wounded. In the motion for continuance it was alleged that Rice, if present, would testify that as the posse approached the house of appellant's father, where appellant was supposed to be concealed, Hardy Adkisson, appellant's brother, for whom the posse had no process, came near the posse, but, upon discovering them, and without knowing their mission, and without indication of violence, turned and started back to the house, whereupon the sheriff in charge of the posse gave a command to shoot, or stop, Hardy Adkisson, and just as a member of the posse was about to execute this order by shooting Hardy Adkisson, Tom Adkisson, the father of Hardy, appeared on the front porch of his home and hallooed something to the officer, who apparently was about to shoot his son, and, as the officer appeared not to have heeded--if, indeed, he had heard--this cry, Tom Adkisson entered his home and hastily reappeared with a gun and opened fire on the posse, and that no one else in or about the house fired upon the posse, and that appellant was not seen around the premises at any time. Members of appellant's family who were present during the shooting, including Mrs. Leo Martin, appellant's sister, detailed the circumstances of the shooting as stated in this motion for a continuance. But they were all highly interested witnesses, and the male members of the family were charged with the commission of the murder and it can not, therefore, be said that appellant was not entitled to the continuance because the testimony was cumulative of other testimony offered at the trial. Hall v. State, 64 Ark. 121. But no showing was made that the attendance of this witness could later be secured. At appellant's request a subpoena had been issued by the clerk of the Cleburne Circuit Court, where the cause was pending for trial, directed to the sheriff of Pulaski County, but the subpoena had been returned non est, and no showing was made as to where the witness had gone, or as to the time when he would likely return, and it was not error, therefore, to refuse the continuance.

Objection was made to the testimony of a Doctor Turner in regard to having examined appellant for military service. But this testimony was brought out during the examination of the witness, who was a member of the posse and had testified that appellant was one of the parties on the porch, who fired upon the...