Bell v. State

Decision Date08 November 1915
Docket Number216
PartiesBELL v. STATE
CourtArkansas Supreme Court

[Copyrighted Material Omitted] [Copyrighted Material Omitted]

Appeal from Conway Circuit Court; M. L. Davis, Judge; reversed.

STATEMENT BY THE COURT.

On the 5th of May, 1915, Hon. M. L. Davis, judge of the Fifth Judicial Circuit, called a special term of the Conway Circuit Court to meet on the 18th of May. The call recited that Sam Bell was accused of murder and confined in jail, and that the call was made for the purpose of investigating and disposing of the charge. The special term convened on the day ordered in the call, and a grand jury was empaneled, which returned four separate indictments against Bell, charging him with the crime of murder in the first degree by shooting different persons. Among the indictments was one charging him with the murder of Eard Bearden, and also the present indictment charging him with the killing of Mrs. Abbie Bearden by shooting her.

The indictment was couched in the usual terms of an indictment for murder in the first degree and no objection is urged to its sufficiency so far as the form of the indictment is concerned. The special term adjourned to and reconvened on June 1.

The appellant filed a plea of former conviction, setting up that at the present special term he had been indicted for the murder of Eard Bearden and Mrs. Abbie Bearden; that he was tried and convicted of murder in the first degree for the killing of Eard Bearden, and that the State was then proceeding to try him for the murder of Mrs. Abbie Bearden; that the killing of the two persons was but one transaction and constituted one offense; that the proof to sustain one would sustain the other; that his conviction of the killing of Eard Bearden was also tantamount to convicting him of the killing of Abbie Bearden, for which he was about to be tried. The plea of former conviction was overruled.

Appellant moved to quash the indictment, setting up that the record of the court did not show that the order calling the special term was entered on the record of the court ten days before the meeting of the special term. The motion was overruled.

Appellant was put upon his trial and the jury returned a verdict of murder in the first degree. Appellant filed his motion for a new trial, which was overruled, and judgment sentencing him to be electrocuted was rendered, and he duly prosecutes this appeal. Other facts will be stated in the opinion.

Appellant urges numerous grounds for reversal. Such of these as we deem necessary we shall consider in the opinion, and, for the most part, in the order presented by appellant's counsel.

Judgment reversed and cause remanded.

Mehaffy, Reid & Mehaffy and Sellers & Sellers, for appellant.

1. Capital punishment was abolished by the act of March 20, 1915. It is exclusive and covers the whole subject-matter, and repeals by implication all former acts. 107 Ark. 384; 82 Id. 302; 80 Id. 411; 65 Id. 508; 57 Id. 508; 31 Am. Dec. 323; 39 So. 509; 31 Ark. 236; 29 Id. 248; 64 Id. 83.

2. There is now no law providing for special terms, § 1532 and others having been repealed. 49 Ark. 111; 46 Id. 229; 32 Id. 677; 136 P. 52; 105 N.E. 916; 5 Cal. 112; 106 N.Y.S. 624; 88 Ark. 324. If not repealed the proceedings are void for informality. 2 Ark., Dunn v. State; 45 Ark. 453; 100 Id. 377; 176 S.W. 165.

3. The court could only try one case against appellant. 176 S.W. 167.

4. The motion to quash the special venire should have been sustained. Const. 1868, § 32; Acts 1871, 266; Crim. Code, § 191; Kirby's Dig., § 2345, 4508; 24 Cyc. 229; 26 S.W. 388.

5. It was error to sustain the State's challenge for cause, as capital punishment had been abolished. Authorities, supra; 76 N.W. 327; 60 Id. 119; 57 Id. 414.

6. The State's opinion evidence was incompetent. 87 Ark. 293; 103 Id. 196; 61 Ark. 246; 103 Id. 200; 54 Id. 588.

7. The conduct and arguments of the counsel for the State were improper and prejudicial. 62 Ark. 126, 516; 74 Id. 256; 70 Id. 306; 77 Id. 238; 65 Id. 625; 75 Id. 577; 80 Id. 23; 81 Id. 231.

8. The instructions for the State were involved, confused and conflicting, and do not correctly state the law. 50 Ark. 518; 64 Ark. 534; 98 Id. 138; 54 Id. 600. Especially is this true as to the charge on insanity. 94 Am. St. 432; 55 Ky. 592; 71 Id. 463; 68 Id. 362; 107 Id. 624; 55 S.W. 196; 75 Am. St. 537; 96 N.W. 424; 165 U.S. 373; 102 Ark. 630; 104 Id. 67; 100 Id. 433; 101 Id. 37; 94 Id. 282; 95 Id. 506; 96 Id. 311; 99 Id. 377.

9. It was error to refuse defendant's instructions. 60 Ark. 567; 59 Id. 431; 87 Id. 264.

10. Defendant's insanity was sufficiently shown to justify a reversal. Taylor on Med. Jur. 740, 784-5; Wharton & Stille, Med. Jur., Vol. 1, §§ 384-390; Blandford on Insanity, Vol. 12, p. 103.

11. Appellant did not have a fair and impartial trial. 121 P. 58; Kirby's Dig., § 2422.

12. The plea of former conviction should have been sustained. It was in the record. Kirby's Dig., § 2333; 32 Ark. 203; 22 Cyc. 393; 32 Ark. 246; 61 Id. 88; 42 Ind. 99.

13. Having already been sentenced to life imprisonment, the sentence of death was void. 12 Cyc. 782, note 94; 17 Pa. S.Ct. 340; 101 Pa. 119; 28 Pa. Sup. 563; Endlich, Int. Stat., § 563.

14. Appellant was insane, and a jury should have been empaneled to inquire into his sanity before sentence. 77 Ark. 418.

Wallace Davis, Attorney General, Jno. P. Streepey, assistant, for appellee; W. P. Strait and Edward Gordon, of counsel.

1. Capital punishment has not been abolished. 101 Ark. 238. The act simply gave the jury discretion to impose a life imprisonment verdict instead of death.

2. The law providing for a special term of court has not been repealed. 24 Ark. 286-8; 1 Ore. 51; 2 Ia. 270, 275; 102 N.W. 885; Const. Ark., art. 7, § 12; 101 Ark. 238.

3. The proceedings are not void for informality. 53 P. 563; 169 Mo. 615; 176 S.W. 165.

4. The court had authority to try Bell in the second case. Kirby's Dig., § 1532; 2 Ark. 230.

5. The motion to quash the special venire was properly overruled. Const. 1868; Acts of 1871; Kirby's Dig., §§ 4500, 4504-6-99, 1533; 91 Ark. 582; 97 Id. 131-133.

6. There is no error as to the grand jury. Kirby's Dig., § 1533.

7. There was no error with regard to the State's challenges for cause. Kirby's Dig., § 2363, clause 7; 67 N.E. 453; 2 Cal. 257; 41 Tex. 86; 42 Neb. 503; 59 Miss. 19; 85 P. 948; 100 Ky. 133.

8. The court did not err with regard to the State's opinion evidence. 103 Ark. 165, 171; 106 Id. 362, 368.

9. The nonexpert testimony was proper. 106 Ark. 362; Dewein v. State, infra p. 302.

10. There was no misconduct of counsel which requires reversal. 103 Ark. 165, 171.

11. There was no incompetent testimony. 103 Ark. 171.

12. As to the insanity of the defendant, the verdict is conclusive. 109 Ark. 130; Ib. 138; Dewein v. State, infra p. 302.

13. The instructions were approved in 77 Ark. 426. They follow the law. 106 Ark. 362, 369.

14. There is no error as to the sentence. 12 Cyc. 782, note 94, and cases, supra.

15. The plea of former conviction was properly overruled. 52 Am. Rep. 295; 20 So. 632; 62 S.W. 915.

OPINION

WOOD, J.

I. The appellant contends that the judgment sentencing him to be electrocuted is void under the act of March 20, 1915, which is Act No. 187 of the Acts of 1915, at page 774. The act is entitled, "An Act giving the jury the right to render a verdict of life imprisonment in the State penitentiary in all cases where the punishment is now death by law." The act provides:

"Sec. 1. That the jury shall have the right in all cases where the punishment is now death by law to render a verdict of life imprisonment in the State penitentiary at hard labor.

"Sec. 2. That all laws and parts of laws in conflict herewith are hereby repealed."

At the time of the passage of this act the only punishment for murder in the first degree was death by electrocution. Kirby's Digest, Sec. 1775; Act 55, Acts of 1913. Prior to the passage of the act under review, if the jury returned a verdict of guilty of murder in the first degree the exclusive punishment as the result of such verdict was death.

The act under consideration conferred upon the jury a right that it did not have before, to-wit, the right to render a verdict of life imprisonment in all cases where the punishment under the then existing law was death. But this act was not intended to provide an exclusive method of punishment in those cases where, under the then existing law, the punishment was death.

Appellant contends that the act should be construed as if it read "The jury shall, in all cases where the punishment is now death by law, render a verdict of life imprisonment in the State penitentiary at hard labor." But this is not a correct version of the act, for it places upon it a meaning entirely different from that conveyed by the language actually used. Saying that the jury "shall have the right to render a verdict" is quite a different thing from saying that the jury "shall render a verdict." The very language "shall have the right" denotes that the Legislature intended to confer upon the jury the option or privilege of rendering a verdict, whereas saying that the jury "shall" render such verdict denotes that they would not have any option. Such is the plain meaning as gathered from the language used. The manifest purpose of the Legislature was not to abolish capital punishment, but to provide also another method of punishment if the jury so ordained. If the Legislature had intended to abolish capital punishment the title of the act doubtless would have been "An Act to Abolish Capital Punishment," etc., and in the body of the act the Legislature would have made it compulsory on the jury to return a verdict...

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