Bullen v. State

• Decision Date: 04 December 1922
• Docket Number: 24
• Citation: 245 S.W. 493,156 Ark. 148
• Parties: BULLEN v. STATE
• Court: Arkansas Supreme Court

245 S.W. 493

156 Ark. 148

BULLEN v. STATE

No. 24

Supreme Court of Arkansas

December 4, 1922

Appeal from Ashley Circuit Court; Turner Butler, Judge; affirmed.

Judgment affirmed.

William Beauregard Stuckey, for appellants.

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

OPINION

HART, J.

F. G Bullen, Duncan Richardson and Ben Richardson were separately indicted for the crime of murder in the first degree, charged to have been committed by killing Ira H. Culp in May, 1922, in Ashley County, Ark.

At the request of the defendants, the cases were consolidated, and the defendants were jointly tried before a jury. The jury returned separate verdicts, finding each defendant guilty of murder in the first degree, as charged in the indictment.

The court had told the jury that, under such a form of verdict, the law fixed the penalty at death by electrocution. The court also instructed the jury that, under the statute, it might find each defendant or all of them guilty of murder in the first degree, and fix the punishment at imprisonment for life in the State Penitentiary.

From the judgment and a sentence of death pronounced by the court the defendants have duly prosecuted an appeal to this court.

A verdict in this form was approved by the court in Kelley v. State, 133 Ark. 261, 202 S.W. 49. Besides this, under the instructions given by the court, there can be no doubt as to the punishment intended by the jury. The court expressly told it that the law would impose the penalty of death upon the verdict in the form returned by the jury, and that, if the jury intended to reduce the punishment, it might do so, under the statute, by returning a verdict fixing the punishment at imprisonment for life in the State Penitentiary.

Counsel for the defendants assign as error the overruling of the motion of the defendants to compel the State to elect upon which count or paragraph of the indictment it intended to rely for the conviction of the defendants.

In the first part of the indictment it is charged that the defendants killed the deceased by shooting him, and in the second part that they killed him by striking him with an ax. This court has held that, if the offense may have been committed in different modes and by different means, the indictment may allege the modes and means in distinct counts. Howard v. State, 34 Ark. 433, and Franklin v. State, 153 Ark. 536, 240 S.W. 708.

The next assignment of error is that the court erred in refusing to grant the request of the defendants to hear testimony in the absence of the jury on the question of whether or not Filmore Gaul and Bill Bowden were induced to give their testimony by bribes or threats.

The well-established rule is that confessions of guilt, to be admissible, must be free from the taint of official inducement proceeding either from the hope of gain or the torture of fear. The approved practice is to withdraw the jury while the evidence on this point is being heard. The reason is that, if the court should not admit the evidence, the defendant might not be prejudiced by the hearing. In the case at bar the confessions were admitted in evidence, and the defendants did not show that the testimony of the witnesses in question was given by any inducement of gain or fear. On the other hand, the deputy sheriff who had the witnesses in charge testified that no inducements were held out to them, either of hope or fear; and the witnesses themselves testified to that effect. Bowden was not charged with being implicated with the crime, and was only held by the officers to be used as a witness. Filmore Gaul was arrested as an accomplice, but gave his testimony as the result of being told by some of his relatives to tell the truth. It is true, Gaul made other statements, but he says this was done under threats made by the defendants. Therefore, no prejudice could have resulted to them from the action of the court. Greenwood v. State, 107 Ark. 568, 156 S.W. 427, and Dewein v. State, 114 Ark. 472, 170 S.W. 582. Moreover, Gaul and Bowden were not defendants, and their testimony was not a confession by them; but, on the other hand, it was the testimony of witnesses of matters and things they saw and heard and about which they had personal knowledge. Hence any promises or threats made to induce them to testify would only go to their credibility as witnesses. The witnesses claimed they were telling the truth at the trial.

The next assignment of error is that the court erred in permitting Mrs. Ira H. Culp to testify, on direct examination, that the relations between her and her husband were friendly. We do not think that this assignment of error is well taken, because it is not made a ground for a motion for a new trial by the defendants. An exception to the admission of testimony which is not brought forward in the motion for a new trial will not be considered on appeal. Ince v. State, 77 Ark. 418, 88 S.W. 818; Gooch v. State, 150 Ark. 268, 234 S.W. 33; and Freeman v. State, 150 Ark. 387, 234 S.W. 267. Besides this, there was nothing unfavorable to the defendants in allowing the wife to make the statement that she had been on friendly terms with her deceased husband. She was not present when the crime was committed and was not in any way involved in it. Therefore there was no prejudice in the introduction of the testimony. Shinn v. State, 150 Ark. 215, 234 S.W. 636.

The next assignment of error is that the court erred in permitting Filmore Gaul to testify that F. G. Bullen told him about taking an ax and cutting off the arms and legs of the deceased in the house, after he had been shot by Ben Richardson.

Filmore Gaul was a boy sixteen years of age, and, according to his testimony, accompanied the defendants to the scene of the killing on horseback, but remained on his horse and took no part in the killing. The defendants first called Ira H. Culp out on the porch, and he came out dressed in his night-clothes. The defendant, Ben Richardson, then shot at Culp and missed him. Culp shot back at Richardson twice and missed him. Ben Richardson then shot at Culp again, and Gaul saw Culp fall on the porch. The three defendants then went into the house. Duncan Richardson got a double-bitted ax in front of the woodpile and carried it into the house with him. Ben Richardson and F. G. Bullen got Culp by his arms and dragged him back into the house. Dunk Richardson followed them into the house. This much the witness saw. He then testified that the defendants cut off the arms and legs of Culp, and when asked why he knew this, he stated that F. G. Bullen told him so. He also testified that Ben and Dunk Richardson were present at the time. The witness also heard the sound of an ax cutting while they were in the house.

There was no error in the admission of the testimony. It was not testimony of the declarations of a coconspirator after a crime had been committed and the conspiracy ended, but it was testimony in the nature of a confession made by F. G. Bullen to the witness in the presence of his codefendants. Therefore this assignment of error is not well taken.

The next assignment of error is that the circuit court erred in refusing to exclude the whole testimony of Filmore Gaul, on the ground that his direct examination was extremely leading. In the first place, it may be said that his examination was not leading, and, in the next place, it is always within the sound discretion of the trial court to permit the witness to be asked leading questions, and it cannot be said that there was an abuse of discretion in this respect in the examination of Filmore Gaul.

The next assignment of error is that the circuit court erred in refusing to strike out the testimony of Filmore Gaul on the ground that he was a coconspirator, and that his testimony was not admissible to connect any others with commission of the crime. In support of their contention, the defendants cite cases to the effect that, when the object of the conspiracy has been accomplished, the subsequent acts and declarations of one of the conspirators are not admissible in evidence for the purpose of showing the guilt of the others. This well-known rule of law has no application to the testimony of Filmore Gaul. According to his own testimony, Filmore Gaul went with the defendant to the scene of the killing, but did not participate in it. Whether he did or did not participate in the killing has no bearing on the assignment of error now under consideration. The witness testified to matters which he saw and heard. Testimony of matters coming under the personal observation or knowledge of a witness are not acts or declarations of a coconspirator. They are admissible as a narrative of things heard and seen by the witness, and which come within his own personal knowledge.

The next assignment of error is that the court erred in permitting the prosecuting attorney to cross- examine the defendants as to whether or not they had been guilty of other murders in that vicinity. The defendants took the stand in their own behalf, and, for the purpose of testing their credibility as witnesses, they might be cross-examined as to other crimes committed by them. Shinn v. State, 150 Ark. 215, 234 S.W. 636.

The next assignment of error is that the court erred in refusing to give instruction No. 5-B, which is as follows:

"I charge you further that the jury must have an abiding conviction to a moral certainty of the guilt of the accused to justify a conviction."

The court fully and fairly submitted to the jury the question of reasonable doubt, and it was not required to multiply instructions on the same point.

The next assignment of error is that the court erred in refusing to give instruction No. 5-C. This...