Burks v. State
Decision Date | 08 October 1904 |
Citation | 82 S.W. 490,72 Ark. 461 |
Parties | BURKS v. STATE |
Court | Arkansas Supreme Court |
Appeal from Hot Springs Circuit Court, ALEXANDER M. DUFFIE, Judge.
Reversed.
STATEMENT BY THE COURT.
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 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 someone 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:
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, though only twenty years of age, was married, and had been paying more attention to Mrs. Rieblin than Rieblin approved of, and that 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 chills 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 calibre 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 ten or twelve steps from where Rieblin was found he found behind a big rock two No. 38 cartridges. He did not before the trial tell anyone 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 a 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: 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 the request of her husband, went to Hot Springs, some two and a half miles away, to get ice and medicine for him. She further stated that 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 five o'clock; that defendant was still there sick, but that shortly afterwards his fever began to go down, and that about seven 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:
Nearly every one of these questions was 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: (Counsel for defendant here made objection to the argument as improper, but the objections were overruled and exceptions saved.) The prosecuting attorney, proceeding with his argument, said: Here counsel for defendant said to the court: "I object to that as not being warranted by the record, and as being improper and prejudicial to the defendant." The objection was overruled and exceptions saved.
The other facts sufficiently appear from the opinion.
Judgment reversed and cause remanded.
M. S. Cobb, for appellant.
The third instruction was erorneous. 53 Miss. 410; 24 Am. Rep 703; 117 N.Y. 480; 86 Pa.St. 54; 27 Am. Rep. 683; 40 Kan. 482; 12 Ind. 670; 85 Cal. 421; 16 Oh. St. 583. The court erred in permitting the state to introduce the pistol in evidence by way of rebuttal. Sand. & H. Dig., § 2224. It was error to permit the prosecuting attorney to ask questions touching the chasity of appellant's sister. 34 P. 1078; 83 Cal. 138; 31 Neb. 566; 8 Cal. 457; 58 Ark. 473; 36 Mo.App. 29; 60 L. R. A. 716; 4 L. R. A. 296. It was likewise error to permit the prosecuting attorney to ask a witness what defendant had paid him for his testimony. The court erred in allowing the prosecuting attorney to make improper arguments, and, when objection was interposed, telling him to "proceed." 68 Ala. 476; 115...
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