Borland v. State

• Decision Date: 26 March 1923
• Docket Number: 260
• Citation: 249 S.W. 591,158 Ark. 37
• Parties: BORLAND v. STATE
• Court: Arkansas Supreme Court

249 S.W. 591

158 Ark. 37

BORLAND v. STATE

No. 260

Supreme Court of Arkansas

March 26, 1923

Appeal from Crittenden Circuit Court; R. E. L. Johnson, Judge affirmed.

Judgment affirmed.

Rudolph Isom and W. B. Scott, for appellant.

Court erred in overruling motion to quash indictment; a member of grand jury returning it not being a qualified elector. U S. v. Gale, 109 U.S. 65; Reich v State, 53 Ga. 73; Crawley v. U. S., 194 U.S. 461; Ex parte Reynolds, 53 Tex. Criminal, 437, 34 S.W. 120; Eastling v. State, 69 Ark. 489, rendered after passage of § 2245, Kirby's Digest, § 6333, Crawford & Moses' Digest; Calloway v. State, 120 Ark. 204, does not overrule Eastling v. State, supra. See also State v. Brown, 10 Ark. 78; sec. 2, art. 10, Const. Should not have permitted a nol. pros. entered as to two defendants after the severance in order to force appellant to trial first. Sec. 2513, Kirby & Castle's Digest; Sims v. State, 68 Ark. 189; McDonald v. State, 104 Ark. 317. Court erred in not excusing jurors for cause who stated they had formed opinions of guilt of accused. Polk v. State, 45 Ark. 171; sec. 10, art. 2, Const.; 2 Words and Phrases, 576; National Candy Co. v. Miller, 160 F. 51, 87 C. C. A. 207; Gammons v. State, 85 Minn. 103, 37 So. 607; Jackson v. State, 103 Ark. 21, distinguished in not allowing further examination of them. Also Polk v. State, 45 Ark. 71. Peremptory challenges exhausted. Stewart v. State, 13 Ark. 730; Meyer v. State, 19 Id. 156; 1 Bishop, Criminal Procedure, sec. 910; People v. Gehr, 8 Cal. 359; People v. Weil, 401 Id. 268. Challenges not exhausted. Wright v. State, 35 Ark. 639. Herman v. State, 188 S.W. 541. Jury should not have been allowed to separate. Confession improperly admitted. State v. Smith, 74 Ark. 397; Conley v. State, 50 Ark. 305; Greenwood v. State, 107 Ark. 568; Frazier v. State, 42 Ark. 70; Dewein v. State, 114 Ark. 472, 170 S.W. 582. Court erred in giving special instruction number 20, and 14, 15 and 19; Chowning v. State, 91 Ark. 503. Also in refusing appellant's requested instruction 6, 7 and 8. Harris v. State, 119 Ark. 85; Howard v. State. 82 Ark. 97; King v. State, 117 Ark. 82; Gilchrist v. State, 100 Ark. 330; Rosemond v. State, 86 Ark. 160. Instruction 6 exact copy of instruction held erroneously refused in Chowning v. State, 91 Ark. 503. See also 91 Ark. 505; 94 Ark. 75; 103 Ark. 33; 102 Ark. 511; 36 L. R. A. 465. As to 7, Thorpe v. State, 99 Ark. 188.

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

No error in denying motion to quash indictment. Sec. 3030, Crawford & Moses' Digest; Calloway v. State, 120 Ark. 205; Tillman v. State, 121 Ark. 322. Grand juror was a citizen and elector anyway. 9 R. C. L. 542; 17 Enc. of Procedure 290-4. Nor in allowing prosecuting attorney to nol. pros. cases. Secs. 3063, 3140, Crawford & Moses' Digest; Sims v. State, 68 Ark. 188. Record also shows agreement of counsel to put appellant on trial first. Norsworthy v. State, 149 Ark. 670; Morris v. State, 142 Ark. 297. Motion for continuance was not verified; §§ 3130, 1270, Crawford & Moses' Digest; Brinkley v. State, 148 Ark. 597. Said § 1270 not affected on this point by Graham v. State, 50 Ark. 161. No error in holding jurors qualified. West v. State, 150 Ark. 555; Crawford v. State, 132 Ark. 518; Branscum v. State, 134 Ark. 66; Gibson v. State, 135 Ark. 520; Mallory v. State, 141 Ark. 496. Challenges were unnecessarily exhausted on competent jurors. Scruggs v. State, 131 Ark. 320; Gibson v. State, supra; Adkisson v. State, 142 Ark. 15; Ruloff v. State, 142 Ark. 477; Reap v State, 143 Ark. 81; Hall v. Smith, 146 Ark. 579. Question of separation of jury not made ground of motion for new trial. Mabry v. State, 80 Ark. 345; Eno v. State, 91 Ark. 441; Johnson v. State, 84 Ark. 95; Jackson v. State, 108 Ark. 425; Barnes v. State, 149 S.W. 506. Sec. 3187, Crawford & Moses' Digest, permits separation of jury. Johnson v. State, 32 Ark. 309; Armstrong v. State, 102 Ark. 356; Reeves v. State, 84 Ark. 509. Carlton v. State, 109 Ark. 516. Confession was shown to be voluntary. Greenwood v. State, 107 Ark. 568; Dewein v. State, 114 Ark. 472. Question of admissibility of evidence for the court. Corley v. State, 50 Ark. 305; Smith v. State, 74 Ark. 397. No error in giving instruction 20 on self-defense, and it could not have been prejudicial. Mills v. Roberts, 136 Ark. 433; Haynes v. Gwin, 137 Ark. 387; National Union Fire Ins. Co. v. School Dist., 131 Ark. 547. Cannot complain of instruction in his favor. Bush v. Beason, 130 Ark. 569; Taylor v. State, 72 Ark. 613; Reed v. State, 141 Ind. 116, 40 N.E. 525; 10 Ann. Cas. 120; 13 1R. C. L. 813; 11 Enc. of Procedure 674. Law correctly declared in instructions 14, 15 and 19 relative to drunkenness, and no specific objections were made. No specific intent to kill required to constitute murder in second degree. Instructions 6, 7 and 8, requested were properly refused as incorrect or covered by those given. Case should be affirmed.

OPINION

HUMPHREYS, J.

Appellant was indicted and tried for murder in the first degree, in the Crittenden Circuit Court, for killing Frank Heath, a negro, at Hulbert, Arkansas, on the 10th day of August, 1922. He was found guilty of murder in the second degree and adjudged to serve a term of ten years in the State Penitentiary for punishment therefor, from which is this appeal.

Appellant was indicted jointly with John J. Keeley, Will Townsend and Dudley Clegg, for said crime. They filed a motion to quash the indictment on the alleged ground that Lee Cook, a member of the grand jury which returned the indictment, was not at the time a qualified elector and citizen of Crittenden County, Arkansas. The motion was heard and overruled by the court, which ruling constitutes the first assignment of error insisted upon for reversal. It is provided by § 3030, Crawford & Moses' Digest, that "no indictment shall be void or voidable because any of the grand jury fail to possess any of the qualifications required by law." In the case of Calloway v. State, 120 Ark. 204, 179 S.W. 356, it was said, in construing the statute, that "on a motion to quash the indictment, its validity cannot be called in question on the ground that a member of the grand jury was not qualified to act."

After the motion to quash was overruled, the defendants in the indictment moved a severance and election of order for trial under § 3140 of Crawford & Moses' Digest, which is as follows:

"When jointly indicted for a felony, any defendant requiring it is entitled to a separate trial, and, when the trials are severed, the defendants may elect the order in which they shall stand upon the docket for trial, but, if no such election is made, they shall stand in the order in which their names appear upon the indictment."

The motion was granted, and, in keeping with the election, the separate cases were entered upon the docket in the following order: first, William Townsend; second, Dudley J. Clegg; third, Hugh Borland (appellant); fourth, John J. Keeley. Whereupon the prosecuting attorney entered a nolle prosequi in the cases against William Townsend and Dudley J. Clegg, and announced ready in the case against appellant. Appellant objected to this proceeding, on the ground that it deprived him of the benefit of his election to be tried after William Townsend and Dudley J. Clegg. The statute of severance and election does not irrevocably and absolutely fix the order in which cases of codefendants shall be tried when their cases are severed and entered on the docket for trial. The meaning of the statute is that they shall be tried in the order entered, unless some legal reason intervenes to prevent trial in the order named. A legal reason intervened in this case. The prosecuting attorney, by and with the consent of the court, entered a nolle prosequi in each of the cases against appellant's codefendants which preceded appellant's case on the docket for trial. The nolle prosequi in each case was authorized by § 3063 of Crawford & Moses' Digest, which is as follows: "The prosecuting attorney, with the permission of the court, may, at any time before the case is finally submitted to the jury, dismiss the indictment as to all or a part of the defendants, and such dismissal shall not bar a future prosecution for the same offense." Appellant's second assignment of error therefore cannot prevail.

Appellant's third assignment of error is the refusal of the court to grant a continuance in this case. He filed an unverified motion for a continuance. It was not error to refuse to grant a continuance where the motion was not sworn to by appellant or his attorney. Brickey v. State, 148 Ark. 595, 231 S.W. 549.

Appellant's fourth assignment of error is that he was forced to exhaust his peremptory challenges of incompetent jurors, and thereby compelled to accept Mr. Sweeney and other jurors that he desired to challenge. It is contended that W. W. Harris, J. B. Dulaney, George Spencer, W. F. Sloan, Will Gray, and H. P. Howard should have been discharged by the court for cause on their voir dire. When examined for qualification, each answered in substance that he had a fixed opinion of the guilt of appellant which it would take evidence to remove, formed from reading a verified confession of appellant in the newspaper. Each stated on cross-examination, however, that he could disregard the opinion formed by him and try the case fairly and impartially on the evidence and law, and would do so if chosen as a juror. Since the opinions were formed from reading newspaper publications, easily effaceable by sworn testimony given from the witness stand, they were not disqualifying opinions, when the parties holding them stated that they would disregard such...