Avey v. State

• Court: Arkansas Supreme Court
• Writing for the Court: SMITH, J.
• Citation: Avey v. State, 233 S.W. 765, 149 Ark. 642 (Ark. 1921)
• Decision Date: 26 September 1921
• Docket Number: 124
• Parties: AVEY v. STATE

233 S.W. 765

149 Ark. 642

AVEY v. STATE

No. 124

Supreme Court of Arkansas

September 26, 1921

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

Judgment affirmed.

E. G Mitchell, Earl C. Casey, Samuel M. Casey, for appellant.

Appellant's petition for change of venue, supported by witnesses who testified as to the state of feeling in regard to him, coming from parties who showed a knowledge of such feeling existing in at least three-fourths of the county, should have been granted. 98 Ark. 139; 121 Ark. 390; 95 Ark.; 83 Ark. 36; 80 Ark. 360.

The purpose of examining the supporting witnesses is not to determine whether or not the accused can obtain a fair trial but to ascertain the credibility of the supporting witnesses. 120 Ark. 302.

Because the witnesses could not remember the names of all the persons to whom they talked about the case does not detract from the value of their testimony. 98 Ark. 139.

It is not necessary to show beyond a reasonable doubt or even by a preponderance of the evidence that a fair and impartial trial cannot be had, to obtain a change of venue, but same should be granted if the showing is such as to raise a reasonable apprehension that the defendant cannot receive a fair trial. 16 C. J. p. 215; 262 Ill. 411, 104 N.E. 804, Ann. Cas. 1915 A. P. 1171.

It was error for the court to give instruction No. 19. Also to allow the impeachment of the witness Vada Avey and the defendant himself upon a collateral matter. C. & M. Digest, § 4187. A witness cannot be impeached by proof of specific acts of immorality, nor as to immaterial collateral matters. 53 Ark. 387; 91 Id. 555; 76 Id. 366; 120 Id. 458; 100 Id. 321; 132 Id. 522; 99 Id. 604; 101 Id. 147; Powell v State, ms. op.

Bad character of the accused cannot be resorted to from which to infer guilt. 88 Ark. 261.

As to the test of whether a fact inquired into on cross examination is collateral, see 99 Ark. 616.

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

The refusal of a motion for a change of venue, after hearing of testimony bearing on the credibility of the persons making supporting affidavit, is in the sound discretion of the court. 85 Ark. 536; 121 Ark. 302. The subscribing witnesses must have fairly accurate information concerning the state of mind of the inhabitants of the entire county toward defendant. Here the witnesses only showed such knowledge in eight of the twenty-four townships in the county.

Unless the trial court abuses its discretion in overruling motion for change of venue, the order is conclusive on appeal. 95 Ark. 239; 98 Ark. 139; 100 Ark. 301.

Testimony of the immoral conduct of the defendant and Vada Avey was not introduced for the purpose of impeaching them but to show a motive for the crime, and is not a collateral issue. 144 F. 14, 18, 75 C. C. A. 172, 7 Ann. Cas. 62.

Motive is an inferential fact, and may be inferred, not merely from the attendant and surrounding circumstances, but, in conjunction with these, all previous occurrences having reference to and connected with the commission of the offense. 86 P. 43, 12 Idaho 424; 4 Sou. 686, 85 Ala. 7, 7 Am. St. Rep. 17; 71 Ark. 112.

OPINION

SMITH, J.

At the trial from which this appeal comes appellant was convicted of the crime of murder in the first degree for killing one Garfield Norman. He was given a life sentence in the penitentiary.

Two points are insisted upon for the reversal of the judgment of the court below. The first is that the court erred in refusing appellant a change of venue. The second is that the court erred in admitting certain testimony, and that the error was accentuated by giving an instruction covering this incompetent testimony.

The affidavit for the change of venue was made by certain residents of Stone County, the county in which the killing occurred. To ascertain the credibility of these affiants, they were examined in open court. At the conclusion of this hearing the court announced its finding and decision as follows: "Gentlemen, the law provides that when a person charged with a crime files the proper affidavit, complying with the statute, and setting out that the minds of the inhabitants of the county, in which he is charged with the crime, are so prejudiced against him that he can not obtain a fair and impartial trial, and this affidavit of two credible witnesses, that a change of venue must be granted.

"Now, the Supreme Court, in a number of cases, has defined what credible witnesses are and among these definitions, or among the holdings of the Supreme Court, they say that the witness should have a sufficient knowledge of the facts to which he has made the affidavit to be a credible witness.

"Now, the witness Foster and the witness Roberts both show that they haven't sufficient information upon which to base the facts, and the further fact that Mr. Roberts stated that he didn't intend to say that this defendant couldn't get a fair and impartial trial. Mr. Foster didn't seem to understand the nature of the petition which he has signed, and he wouldn't say that the minds of the inhabitants of Stone County were prejudiced against the defendant. The witness Haley, however, has testified that in his community, that is, in Chalybeate Township, in the southeastern part of the county, such prejudice does exist. He states, however, that he hasn't been anywhere except at his own home town and to town and to mill. Now, according to my understanding, as to that section of the county, he would be a credible witness; however, as to the county at large and the feeling in the entire county he has shown no knowledge whatever. The witness Johnson, while he made an additional affidavit, shows on examination that the affidavit was prepared by one of the attorneys in the case, and then submitted to him, and he signed it. He shows that he has been nowhere but here and in Sylamore Township. The witness, Lamp, testifies to conditions on Northwest Township and Sylamore and Mountain View, the places where he has been. The witness Gower testifies that he has not been outside of Mountain View, and that he hasn't heard any one say that the defendant, Floyd Avey, can not get a fair and impartial trial in this county. The witness Herrington has heard the matter discussed in Sylamore and Northwest townships and seems to have heard very few people talk about it. The witness McGee says that the sentiment is usually against the defendant around Fox and Rushing where he has been. Now, there is no question, I think, of the witness Conditt in and around the three townships down there. Now, none of the witnesses in this case have shown a general knowledge of the conditions all over the county, and taking them all together, they have shown information--taking their affidavits and statements as true--they have shown more or less general knowledge of the conditions and of the prejudice existing in, I believe, all together they have shown the conditions in eight townships or communities in the county.

"I don't feel that unless a more general knowledge of the conditions existing in the county is shown--there being twenty-four townships in the county--that I would be authorized to grant this motion for a change of venue, and I would have to overrule it."

It appears from the court's statement that he was properly advised as to his duty and as to appellant's rights in the premises. The court limited the inquiry to an ascertainment of the credibility of the affiants as that term has been defined in frequent decisions of this court. He found the fact to be that these affiants, combined, were advised...