Brewer v. State

• Decision Date: 16 January 1904
• Citation: 78 S.W. 773,72 Ark. 145
• Parties: BREWER v. STATE
• Court: Arkansas Supreme Court

78 S.W. 773

72 Ark. 145

BREWER v. STATE

Supreme Court of Arkansas

January 16, 1904

Appeal from Greene Circuit Court ALLEN N. HUGHES, Judge.

Affirmed.

STATEMENT BY THE COURT.

The defendant, H. N. Brewer, was indicted by the grand jury of the Eastern District of Clay county, for the murder of Bud Dortch. Dortch was a bachelor, who lived in a cabin on a small farm in that county. On the night of the 19th of last August, J. L. Dortch, a cousin, went over to spend the night with him. Dortch was not at home when he arrived, but expecting that he would be there some time during the night the cousin remained there the entire night. As Dortch was still absent, the cousin, knowing that he seldom left home for a whole night without notifying some of the family became alarmed, and notified others of the family and the neighbors. Search was made, and his body was found about 150 yards from the house, lying face upwards, with several shot wounds in the face and head. Gun wads that were found near the body and the number of wounds indicated plainly that Dortch had been killed by a charge from a shotgun fired by some one lying in wait behind a fence near a pathway along which Dortch was walking at the time he was killed. Tracks were discovered where the assassin had crouched waiting for his victim. These tracks led from the place where the shot had been fired to the body, and then returned, and led off into the woods, where the nature of the ground prevented them from being traced. It was known to members of his family and to some others that Dortch was in the habit of keeping in a pocketbook which he carried in his pocket about $ 50. He kept the pocketbook fastened by a string tied around it. Neither the pocketbook nor money was on his person, but a string like the one he usually tied it with was found near. One of his pockets was partly pulled outward, as if something had been taken from it. There was no clue to identify the one who killed him except the tracks, and a proposition was made by someone to send for bloodhounds to follow them. Parties went to Rector, the nearest town, to telephone to parties to bring bloodhounds. The hounds were not obtained, but the rumor that they would be placed on the trail to run down the murderer led to a confession by the defendant and to his subsequent arrest and conviction. The defendant was a young married man who lived some three or four miles away from where Bud Dortch was killed, and was one of those who knew that Dortch was in the habit of carrying money on his person. He had previously borne a good character, and no one suspected him of the crime. But a short time after the body of Dortch was found one Williams, an acquaintance of the defendant Brewer, and who lived with the father-in-law of Brewer, went to the home of Brewer, and told him about the discovery of the body of Bud Dortch, and stated that they were going to put bloodhounds on the trail of the party that killed him. Williams was with Brewer several hours, going with him over to a mill, and they talked a great deal about the death of Dortch. During this conversation Brewer told him that he would tell him something, but he must keep it a secret. He then said that on the day Dortch was killed two men armed with double barrel hammerless shotguns came up to him while he was walking around his field, and compelled him to show them the way to where Bud Dortch lived; that he obeyed, and led them through the woods to where Dortch lived, but that they failed to find Dortch. These men told him, he said, that there would be three men killed there in three days, and then ordered him to leave, telling him if he ever mentioned it he would be killed. He told Williams he was afraid for this to be told, as these men might kill him for it.

When it became known that Brewer had made such a statement, an order was made for his arrest. The arrest was made by the coroner and the town marshal of Rector. After the arrest was made, these officers asked him about the parties that forced him to go to the home of Dortch. At first he denied knowing anything about them, or about such a circumstance; but, on the question being repeated, he stated that it was true. He repeated in substance to them the confession he had previously made to Williams, in addition thereto saying that as the men who had him in custody went along through the woods they frequently stopped to rub something on the bottom of their shoes. After he had repeated this confession they told him that he ought to tell who those parties were, and that if he would do so "it would help him out." After they had asked him several questions about the matter, he told them that he had something to tell them, and would do so if they would stay with him. They told him that they would do so, and he thereupon confessed that he shot Dortch, but stated that he was compelled to do so by parties who had him in custody.

To quote the language of one of these witnesses, he said that "two masked men armed with hammerless guns caught him back of his field, and made him go with them over there to show them the way, and they made him go through the woods, and when they got over there one of them said, 'Yonder he comes now,' and they gave him a gun, and made him shoot Bud Dortch." He further stated in the confession that at the time he fired he was behind the fence kneeling on one knee and foot, and that he aimed at the head, but did not see Dortch after he fell; that the men ordered him to leave at once, threatening to kill him if he ever told it.

There was some other evidence showing that the defendant was out with a shotgun on the day Dortch was killed, and that on his return he had no game, but stated that he had shot at a very large horned owl, but did not kill it. This is, in short, the material part of the evidence upon which the defendant was indicted, tried and convicted of murder of the first degree. The case was tried in Greene county on a change of venue. The defendant appealed, and the other facts are stated in the opinion.

Judgment affirmed.

J. H. Hill, L. Hunter and J. D. Block, for appellant.

The court erred in not excusing for cause the jurors Troxell, Faulkner and Landrum. 69 Ark. 326. It was also error to allow the state to peremptorily challenge the juror Cathey after he had once been accepted. Sand. & H. Dig., §§ 2210-13; 63 Ark. 527. The court erred in giving the seventh and fifteenth instructions. Sand. & H. Dig., § 1448; 59 Ark. 392; 15 N.W. 98; 66 Ark. 506. Also in giving the eighth. 50 Ark. 305. It was error to admit the evidence as to the confession. 50 Ark. 305; 22 Ark. 336; 110 U.S. 574; 135 Mass. 269. There was no jurisdiction in the Greene circuit court, the crime having been committed in Clay county, and no record having been lodged in the Greene circuit court. 48 Ark. 94. The want of arraignment and plea avoids the judgment. 34 Ark. 273; 39 Ark. 108.

George W. Murphy, Attorney General, for appellee.

The confession was properly admitted. 25 Ark. 531; 50 Ark. 501.

OPINION

RIDDICK, J. (after stating the facts.)

This is an appeal from a judgment convicting the defendant of murder in the first degree and sentencing him to be hung. The crime was committed in Clay county, but the trial was had in Greene county on a change of venue. The first point made for a reversal of the judgment is based on the contention that the Greene circuit court had no jurisdiction, for the reason that the transcript of the record of the Clay circuit court for the Eastern District was never filed in the Greene circuit court. But the transcript of the record on file here from the Greene circuit court is complete, and shows a complete record of the proceedings in the case both in the Clay and Green circuit courts. The certificate of the clerk of the Greene circuit court attached to this record shows that the transcript of the Clay circuit court, which he has copied in the record, is on file in his office. It is true that there is no file mark copied in the record showing the exact date upon which the transcript from the Clay circuit court was filed. But while the indorsement of the clerk upon a transcript that it has been filed is evidence of that fact yet the transcript may have been filed, and no indorsement made, or the indorsement may have been made, and not copied in the record sent to this court. Whenever the transcript is duly deposited with the clerk in his office to be kept on file, it has been filed within the meaning of the law. 8 Enc. Plead. & Prac. 923. Now, the clerk should, we admit, have made this indorsement as a matter of evidence, and should have copied it into the transcript. But it does not follow because he did not do so that the transcript was not filed; on the contrary, we think the whole record, taken together, indicates that it was filed in due time. The record here shows that the order for a change of venue was made by the Clay circuit court on the 25th day of August, 1903, and the order among other matters directs that the clerk of that court "forthwith make out a full and complete transcript of all records," etc., "and immediately transmit the same, duly certified under seal of the court, to the clerk of the Green circuit court." The certificate of the clerk of the Clay circuit court, copied in the record here shows that this transcript was made and certified on the 28th day of August, 1903. The record of the trial in the Greene circuit court shows that the case had been placed on the docket of that court for trial, and was numbered 189, and that the trial took place on September 4, 1903. The defendant was present in person, as well as represented by able counsel. Both parties announced ready for trial. The charge was stubbornly contested, and after the conviction a motion for...