Burks v. State

• Citation: 82 S.W. 490
• Parties: BURKS v. STATE.
• Decision Date: 08 October 1904
• Court: Supreme Court of Arkansas

Page 490

82 S.W. 490

BURKS v. STATE.

Supreme Court of Arkansas.

October 8, 1904.

Appeal from Circuit Court, Hot Spring County; Alexander M. Duffie, Judge.

Al Burks was convicted of assault with intent to kill, and he appeals. Reversed.

On the 2d day of October, 1903, as W. W. Rieblin was returning from Hot Springs to his home in the country, he was shot by some one who lay in wait with the evident intention of taking his life. The shot was fired seemingly from a pistol or rifle, and took effect in the side of his head. Rieblin was stunned and rendered unconscious from the wound. Shortly afterwards some of his neighbors noticed the team and wagon in which he had gone to town going along the road without a driver, and they went to look for him, and found him weltering in blood and unconscious. He had been shot twice, once in the head and once in his leg, which was broken. His face had also been beaten, and his neck was cut, as if some one had endeavored to make sure of his death by cutting his throat. He was carried to his home, and finally recovered from his injuries. After he became conscious he charged Al Burks with having committed the crime, and Burks was indicted for the crime of an assault with intent to kill.

On the trial Rieblin testified positively that Burks did the shooting. Rieblin, after stating that he was running a little grocery store in the country and had gone to Hot Springs that day on business, said: "I was not feeling well, and started out home earlier than usual. I went on across the river, and just as I got to the slough something called my attention, and I looked around and saw defendant and another man standing in front of me. They both had pistols in their hands. I saw Al Burks as plain as I see you now. I saw the other man as plain as I see you now. Just as I looked up defendant, Al Burks, shot me in the side of the head. I became unconscious, and did not know anything more until 1 or 2 o'clock next morning." There was also testimony on the part of the state tending to show that Rieblin and the defendant were not on friendly terms, on account of some remarks made by Burks about Mrs. Rieblin, and which Rieblin resented. There was also testimony tending to show that Burks, who, though only 20 years of age, was married, had been paying more attention to Mrs. Rieblin than Rieblin approved of, and on that account there was a state of enmity between the two men.

On the other hand, defendant proved by a number of witnesses that on the day the crime was committed he was sick at home with chill and fever, and that he did not leave home until after dark, when he went away with his sister and one A. Martel, to be present at their marriage, which took place that night; the defendant being present. The facts supporting the alibi were proved, not only by the father and mother of defendant, at whose house he lived, but by other persons not connected with him, and, taken together, make out a strong defense; but it is unnecessary to set out that evidence.

The defendant was the owner of a 45-caliber Colt's pistol; but the evidence does not show the size of the balls which were fired at Rieblin, except that one Sherrill testified that a few days after the crime he went to the place of the shooting, and that, about 10 or 12 steps from where Rieblin was found, he found behind a big rock two No. 38 cartridges. He did not, before the trial, tell any one about finding the cartridges, except J. W. Burks, the father of defendant. When J. W. Burks took the stand and testified for defendant, he was asked when Sherrill told him about finding the cartridges, and cross-examined at some length about the matter, and asked if he did not know that Sherrill never found any cartridges, and that such story was a fabrication. He replied that Sherrill, some weeks after the crime was committed, informed him that he had found the cartridges, and witness said that was all he knew about it. The prosecuting attorney then put this question: "Now, Mr. Burks, what did you give Sherrill to testify in this case for you?" The attorney for the defendant objected, and said to the court: "I wish to say, your honor, that the prosecuting attorney, knowing as he does what answers will be given to these improper questions, is only seeking to get statements before the jury in the guise of interrogatories which can only serve to prejudice the jury against the defendant. I move the court to admonish the jury not to regard the questions objected to, and to instruct them that they are improper." But the only reply of the court was, "Proceed with the examination," and the defendant excepted.

Mrs. Jane Burks, mother of the defendant, testified on behalf of defendant that on the day the crime was committed defendant was sick at home with chill and fever; that in the afternoon of that day she at request of her husband went to Hot Springs, some 2½ miles away, to get ice and medicine for him. She further stated while there she visited her daughter, who was employed in the city, and who informed her that she would be married that night to one Martel, and that she desired that some member of her family should be present when the ceremony was performed; that in reply to this statement of her daughter she told her that Algy (the defendant) was sick and could not go; that she reached home on her return about 5 o'clock; that defendant was still there sick, but that shortly afterwards his fever began to go down; and that about 7 o'clock he left the house with his sister to attend her marriage. On the cross-examination the following questions were propounded by the attorney for the state: "Q. Where did you find your daughter when you got to town? A. I found her at the railroad restaurant. Q. What was she doing there? A. She was working in the restaurant for Martel. Q. Was she not in the back of the Choctaw saloon? A. No. Q. Did you not have to go in the Choctaw saloon to find her? A. No; I did not. She was at work in the railroad restaurant. Q. Now, is it not a fact, Mrs. Burks, that your daughter was occupying rooms over the Choctaw saloon? A. No. Q. Did you not have to go into the saloon to find her? A. No. Q. Well, where did you find her? A. I do not know the street. It was up from the railroad restaurant. Q. Now, Mrs. Burks, is it not a fact that your daughter was keeping a house of ill fame in the city of Hot Springs? A. No; she was not keeping a house of ill fame. She was working for Martel, waiting on the table, and doing other work in the restaurant." Nearly every one of these questions were objected to by counsel for defendant, who contended that it was immaterial where Mrs. Burks found her daughter, and that such evidence was incompetent and prejudicial to the rights of the defendant. But the court overruled the objections.

The bill of exceptions shows the following argument by the prosecuting attorney over objections by the defendant: "Gentlemen of the jury, innocence does not need perjured testimony to prove its innocence. If defendant was not guilty, why did those interested in his defense seek to prove his innocence by such testimony as was...