Bailey v. State

• Decision Date: 25 May 1942
• Docket Number: 4254
• Citation: 163 S.W.2d 141,204 Ark. 376
• Parties: BAILEY v. STATE
• Court: Arkansas Supreme Court

163 S.W.2d 141

204 Ark. 376

BAILEY v. STATE

4254

Supreme Court of Arkansas

May 25, 1942

Appeal from Mississippi Circuit Court, Chickasawba District; Z. B Harrison, Special Judge; affirmed.

Judgment affirmed.

Bruce Ivy, Reid & Evrard and W. Leon Smith, for appellant.

Jack Holt, Attorney General and Jno. P. Streepey, Assistant Attorney General, for appellee.

MEHAFFY J. SMITH, J., concurring.

OPINION

MEHAFFY, J.

The appellant was charged in the circuit court of the Chickasawba district of Mississippi county, Arkansas, with the crime of murder in the first degree for the killing of P. C Kitsmiller on September 30, 1941; was tried and convicted of the crime of murder in the second degree, and his punishment fixed at ten years in the state penitentiary. An appeal is prosecuted to this court to reverse said judgment.

The killing for which appellant was tried occurred on September 30, 1941. On that day there was held, in the city of Blytheville, Arkansas, the annual National Cotton Picking Contest. Many people attended this meeting. The killing occurred in what is known as the Midnight Inn, which is approximately one and a half miles north of Blytheville on U.S. highway No. 61. In leaving the scene of the cotton picking contest, it was necessary for appellant to pass the Midnight Inn on his way home in Pemiscot county, Missouri. On his way home appellant stopped at the Midnight Inn and went inside. The owners and operators of this inn were absent at the time of the killing and were operating a stand on the grounds at the Cotton Picking Contest, selling drinks and sandwiches. There were, at the inn, Edith Grizzell and Eloise Parks. The appellant did not know Kitsmiller before this time. At the time appellant entered the Midnight Inn there was no one in the cafe part except the two waitresses. The appellant ordered a bottle of beer, and it was served to him at the counter by the Parks girl. After drinking a portion of the beer appellant got up from the stool at the counter, went around the end of the counter and into the rest room. As he was going around the end of the counter he passed a man whom he did not know. He later learned that this was Kitsmiller. When appellant opened the door to the rest room the Grizzell woman was standing at the lavatory. The appellant owned and operated a place of business in Holland, Missouri.

It is alleged that the appellant has enemies who had several times sought to take his life, and that for that reason he went armed at all times. There is some conflict in the evidence as to what was said between the appellant and the Grizzell woman when he went into the rest room, but the Grizzell woman slapped the appellant, and about this time Kitsmiller came into the rest room, struck appellant in the back of the head, knocking him across the rest room and into the bathtub.

There is evidence that the appellant apologized both to the Grizzell woman and Kitsmiller and shook hands with the deceased, and shortly thereafter left the building and deceased took his seat at the counter. Appellant shortly thereafter returned and, as he entered the door of the cafe, brandished a pistol and stated, in effect, that he was taking charge, walked over to Kitsmiller and shot him and then leaned over him and fired two more shots.

Information was filed by the deputy prosecuting attorney charging appellant with murder in the first degree. No preliminary hearing was had in the municipal court where the information was filed, but the circuit court convened in Blytheville on October 27, 1941, and appellant was arraigned on a charge of murder in the first degree on information filed by the prosecuting attorney in circuit court.

Thereafter, the appellant filed in the circuit court a motion for a continuance in which he alleged in substance that he had not had reasonable opportunity between the date on which Kitsmiller was killed and the date set for his trial in which to interview material witnesses nor to make any proper investigation in the preparation of his defense, nor to properly prepare for his defense.

The motion for continuance is quite long, and after a hearing, it was overruled by the court.

The court did not err in overruling appellant's motion for a continuance. This court has many times held that the question of a continuance in a criminal case is within the sound discretion of the court, and its action will not be disturbed on appeal, except where there is a clear abuse of discretion, which amounts to a denial of justice. Smith v. State, 192 Ark. 967, 96 S.W.2d 1; Adams v. State, 176 Ark. 916, 5 S.W.2d 946; Martin v. State, 194 Ark. 711, 109 S.W.2d 676.

In the case of Banks v. State, 185 Ark. 539, 48 S.W.2d 847, 82 A. L. R. 1051, this court said: "The first assignment of error is that the court erred in refusing to grant the defendant a continuance. The granting or refusing of continuance is within the sound legal discretion of the court, and this court will not interfere where there has been no abuse of that discretion." In support of this rule, the court cited the following cases: Golden v. State, 19 Ark. 590; Edmonds v. State, 34 Ark. 720; Jackson v. State, 54 Ark. 243, 15 S.W. 607; Goddard v. State, 78 Ark. 226, 95 S.W. 476; Morris v. State, 102 Ark. 513, 145 S.W. 213; Bruder v. State, 110 Ark. 402, 161 S.W. 1067; Sease v. State, 155 Ark. 130, 244 S.W. 450; Adams v. State, supra.

After the appellant had filed his motion for a continuance, he filed a petition for a change of venue.

Section 10 of art. 2 of the Constitution of the state of Arkansas, after providing for a trial in the county in which the crime shall have been committed, continues as follows: "provided that the venue may be changed to any other county of the judicial district in which the indictment is found, upon the application of accused, in such manner as now is, or may be prescribed by law; and to be informed of the nature and cause of the accusation against him, and to have a copy thereof; and to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor and to be heard by himself and his counsel."

Section 3917 of Pope's Digest provides that any criminal cause may be removed to the circuit court of another county whenever it shall appear, in the manner hereinafter provided, that the minds of the inhabitants of the county in which the cause is pending are so prejudiced against the defendant that a fair and impartial trial cannot be had therein. It is then provided how the application for change of venue shall be made.

Section 3918 reads as follows: "The application of the defendant for such order of removal shall be by petition setting forth the facts on account of which the removal is requested; and the truth of the allegations in such petition shall be supported by the affidavits of two credible persons who are qualified electors, actual residents of the county and not related to the defendant in any way. Reasonable notice of the application shall be given to the attorney for the state. The court shall hear the application and, after considering the facts set forth in the petition and the affidavits accompanying it and any other affidavits or counter affidavits that may be filed and after hearing any witnesses produced by either party, shall either grant or refuse the petition according to the truth of the facts alleged in it and established by the evidence."

The Constitution expressly provides that the venue may be changed to any other county of the judicial district in which the indictment is found upon the application of accused "in such manner as now is or may be prescribed by law." The court has a right not only to receive counter affidavits and consider them, but he has a right to hear the witnesses produced by either party, and shall either grant or refuse the petition according to the truth of the facts alleged in it and established by the evidence.

The Constitution having provided that the change of venue may be had in the manner provided by law, it was perfectly proper for the court to consider not only the counter affidavits, but to hear the witnesses offered. The court is authorized to determine the truth of the matter, and he is certainly better qualified to pass on the application for a change of venue than is any one else.

This court recently said: "This court has ruled that, in order for an affiant to qualify as a credible person under the statute, he must be cognizant of the prejudice existing throughout the whole county, and not merely in portions thereof." Hedden v. State, 179 Ark. 1079, 20 S.W.2d 119. The following cases are cited in support of the above rule: Dewein v. State, 120 Ark. 302, 179 S.W. 346; Speer v. State, 130 Ark. 457, 198 S.W. 113; Williams v. State, 162 Ark. 285, 258 S.W. 386; Mills v. State, 168 Ark. 1005, 272 S.W. 671. See, also, Avey v. State, 149 Ark. 642, 233 S.W. 765.

"The statute contemplates that the subscribing witnesses shall have fairly accurate information concerning the state of mind of the inhabitants of the entire county toward the defendant." Speer v. State, supra. This case also holds that it has been uniformly held that unless the trial court has abused its discretion in overruling a motion for change of venue, the order is conclusive on appeal. To support this rule the following cases are cited: Bryant v. State, 95 Ark. 239, 129 S.W. 295; Ford v. State, 98 Ark. 139, 135 S.W. 821; McElroy v. State, 100 Ark. 301, 140 S.W. 8. See, also, Dame v. State, 191 Ark. 1107, 89 S.W.2d 610.

"Where local prejudice rendering impossible an impartial trial is made a cause for change of venue only in case its existence is established to the satisfaction of the judge holding the court, it is the consensus of...