Benton v. State

• Citation: 94 S.W. 688,78 Ark. 284
• Parties: BENTON v. STATE
• Decision Date: 31 March 1906
• Court: Supreme Court of Arkansas

94 S.W. 688

78 Ark. 284

BENTON v. STATE

Supreme Court of Arkansas

March 31, 1906

Appeal from White Circuit Court; Hance N. Hutton, Judge; affirmed.

STATEMENT BY THE COURT.

On June 10, 1905, the body of a man was found floating in the St Francis river, and taken out at Madison. It was temporarily buried in the sand. It was identified as that of Walter Gray a young man who had a store on the bank of the St. Francis River, about ten or twelve miles above Madison.

The body bore unmistakable evidence of violence. There was "a terrible wound on the body, and the head was split open." Around the neck was a barbed wire, to which was attached a piece of iron weighing about sixty pounds.

The appellant and Bob Martin, Berry Minor and John Davis were arrested, and afterwards indicted for murder in the first degree, the offense charged being the murder of Walter Gray. Appellant, on change of venue to White County, was tried and convicted of murder in the second degree, and sentenced to ten years in the penitentiary. It appears that appellant assisted Gray in his store. Neither appellant nor Gray were married, and they were constant companions, often eating and sleeping together. Customers of Gray saw him and the appellant in the store as late as nine or ten o'clock on the evening of June 6th, when Gray mysteriously disappeared. Gray was last seen in company with appellant.

Circumstantial facts were detailed in evidence which it is unnecessary for the purposes of this opinion to recite, tending to show that Gray was murdered in his room at the store, and his body taken to and cast into the river where it was afterwards found.

There was ample evidence, of a circumstantial character, aside from the testimony of the alleged accomplice, tending to connect the appellant with the commission of the crime. The testimony of John Davis shows that he and one Bob Martin were accomplices in the alleged murder of Gray. Davis, after having testified to all the details of the horrible crime further testified that he went with appellant when he took the clothes of Walter Gray to a certain deadening (Norfleet) and burned them.

The record then shows the following:

"Q. Who did you first tell about the burning of these clothes? A. I told Mr. Sweet about it. Q. He is a white man, is he? A. Yes, sir. Q. When did you tell him about it? A. I told him about it after that."

(The defendant here interposed objection to the questions propounded to the witness by counsel for the State, for the reason that the statements the witness and accomplice is called on to answer did not take place in a conversation with or in the presence of the defendant. That the proof shows heretofore, that the crime had been committed, and that these acts and declarations took place after the consummation and completion of the offense. And, secondly, that Davis was an accomplice and a conspirator in the killing; that the court has not passed upon the question as to whether or not it is a conspiracy; and for these reasons defendant objects. Said objection is by the court overruled, and defendant excepts. And the defendant here states that, in order to save the time of the court, he objects to all evidence of actions conversations, etc., transpiring after the commission of the offense related by this witness and accomplice. Objection overruled, and exceptions saved by defendant.)

The witness Davis, after having testified that Lucy Witherspoon washed for him and for Walter Gray, and that he carried her some clothes to wash, was asked the following questions:

"Q. Well, did you carry anything over there? A. Yes, sir; Mr. Benton's and Mr. Gray's clothes. Q. Who gave you Mr. Benton's clothes? A. Mr. Benton did." Here the record recites: "Objected to, as what the witness is now testifying to occurred subsequent to the alleged killing; overruled, to which the defendant excepts, and asks that his exception be noted of record, which is accordingly done." Upon the objections thus made and the exceptions thus saved to the ruling of the court, appellant based assignments of error as follows:

"6. Because the court permitted the witness, accomplice and co-conspirator, John Davis, to testify to facts with reference to the defendant Benton touching the alleged offense not within the presence of Benton, and after the consummation and completion of the offense charged in the indictment.

"7. Because the court allowed the witness, co-conspirator and co-defendant, John Davis, to testify as to conversation he had with the defendant, Gus Benton, about the clothes of Walter Gray [which] were burned after the completion and consummation of the offense charged in the indictment.

"10. Because the court erred in permitting the witness John Davis to testify about a conversation he had with the witnesses Sweet, Swan, Lucy Witherspoon, Potts and others, regarding the declarations, acts, and conversations made or had, not within the presence of the defendant Gus Benton, and after consummation and the completion of the charge and offense alleged in the indictment.

"11. Because the court erred in allowing the witness Swan to testify in regard to conversation had with the witness John Davis with reference to the clothes of Walter Gray being burned, said conversation having taken place in the absence of the defendant, and after the consummation and completion of the act charged in the indictment.

"12. Because the court erred in allowing Lucy Witherspoon to show conversations had with the co-conspirator and defendant and accomplice, John Davis, about the washing of clothes and to whom the clothes belonged, said Davis saying to Lucy Witherspoon that the clothes were the clothes of Gus Benton, that they were sent to her by him to be washed for the said Benton; the conversation taking place between witness Davis and Lucy Witherspoon, not within the presence of the defendant, Gus Benton, and after the completion and consummation of the offense charged in the indictment.

"13. Because the court erred in permitting the witness Sweet to testify to any conversation that he had with John Davis, the witness, accomplice and co-conspirator, about the defendant, Gus Benton, or any act or declaration of the said defendant, touching the alleged offense, not made in the presence of the said defendant and [made] after the completion and consummation of the offense alleged in the indictment; that the conversation of the witness John Davis had with the witness Sweet about the killing, or how it was brought about, or the act or declaration of the defendant, Gus Benton, not made within the presence of the said defendant, Gus Benton, and in his absence, and after a completion and consummation of the offense, was not competent.

"14. Because the court erred in permitting Francis Williams, Polk Simms and Lucy Witherspoon to testify to conversations of John Davis, the accomplice and co-defendant, as to acts and declarations of the defendant Benton, not made within his presence, and in his absence, after the consummation and completion of the crime alleged in the indictment.

"15. Because the court erred in permitting the witness Polk Simms to detail a conversation had with the co-defendant and co-conspirator John Davis, the said Davis relating in the conversation that the defendant, Gus Benton, told him that he was going to Madison to find out whether the body found was that of Walter Gray, and that he would return Monday evening to the Gray store and tell him, the witness John Davis, and co-conspirator, whether it was Walter Gray or not, said conversation having taken place between the co-defendant and co-conspirator and accomplice Davis and the witness Simms, not within the presence of Gus Benton, and after the consummation and completion of the crime alleged in the indictment.

"16. Because the court erred in permitting the witness Swan to testify that the witness Davis and co-defendant stated to him that a piece of iron that had laid about the store known as "the Gray store," on the night of the 6th of June, at the time alleged in the indictment that the crime was committed, that the codefendant saw thrown into the St. Francis river by the co-defendants Minor and Martin and the defendant Gus Benton, and that he said if the said Swan would go to the place where the co-defendant threw the iron, which was near the willow tree, he would find the same; that he, the said Swan, stated that he did go and hunt for the iron, and found it as directed by the co-defendant and witness Davis. All of this conversation took place between the witness Swan, and which was testified to by the co-conspirator and accomplice Davis, was not had within the presence of the defendant, and after the consummation and completion of the offense."

Other facts deemed necessary are stated in the opinion.

Judgment affirmed.

M. B. Norfleet, Chas. T. Coleman and Campbell & Stevenson, for appellant.

1. The court erred in admitting evidence of declarations and acts of alleged co-conspirators, made and done after the killing and in the absence of the defendant. 45 Ark. 165, 328, 332; 67 Ark. 234.

2. It was error to permit the prosecuting attorney to ask defendant if he had not been married to a negro woman and indicted for same. 2 Ark. 229, et seq.; 34 Ark. 649; 37 Ark. 261; 38 Ark. 221; 45 Ark. 165; 39 Ark. 278; 52 Ark. 33; 73 Ark. 152; 62 Ark. 126; 68 Ark. 577.

3. After deliberating for a time, the jury returned into court and asked for additional instructions, which the court gave them. Then a juror handed the judge a note which in substance asked the judge whether or not under the law the jury had the right to find the defendant guilty of murder in the second degree. The judge read it, and, without making known to defendant or his counsel its contents,...