Butler v. State

• Decision Date: 17 June 1907
• Citation: 103 S.W. 382,83 Ark. 272
• Parties: BUTLER v. STATE
• Court: Arkansas Supreme Court

103 S.W. 382

83 Ark. 272

BUTLER v. STATE

Supreme Court of Arkansas

June 17, 1907

Appeal from Jefferson Circuit Court; Antonio B. Grace, Judge affirmed.

Affirmed.

Sidney J. Hunt and Hardin K. Toney, for appellant.

1. It was error to permit the written statements of witnesses Johnson and Hamilton to be read to the jury, since they contained only the substance of their testimony before the magistrate, and not their testimony in its entirety. 66 Ark 545; 68 Ark. 441.

2. On cross-examination it was error to permit the State's attorney, over the objection of the defendant, to ask the witness Stansell about new matters not responsive to his examination in chief. 38 Ark. 322-3. It was mere secondary evidence at best, and no sufficient foundation for its introduction was laid. Specific objection being made assigning among other reasons that it had not been shown that the witnesses were beyond the jurisdiction of the court, the same should have been sustained. 58 Ark. 371.

3. Defendant, although present in person at the magistrate court's examination, being ignorant and without counsel, was not confronted by witnesses within the meaning of the Constitution. Art. 11, § 10, Const.

William F. Kirby, Attorney General, and Daniel Taylor, Assistant, for appellee.

The proof was ample that the absent witnesses were without the jurisdiction of the court, and that their attendance could not be procured. The written testimony having been identified by the justice, it was proper to admit it. 60 Ark. 400; 47 Ark. 180; 40 Ark. 454; 29 Ark. 17; 58 Ark. 353; 68 Ark. 441; 76 Ark. 515.

OPINION

MCCULLOCH, J.

Appellant was convicted of murder in the second degree, and his punishment fixed by the jury at a term of fifteen years in the penitentiary.

The killing occurred while appellant and deceased, John Lewis, with other persons, were engaged in a game of "craps".

The State introduced an eyewitness to the killing, who testified that during the progress of the game Lewis demanded of appellant the return of seventy-five cents which the latter won from him, and that appellant shot him. The shot struck Lewis in the neck, and he fell and expired in a few moments. Appellant ran away and attempted to escape, but after he ran several hundred yards and had been fired upon by bystanders he returned and gave himself up. Appellant testified that when he declined to return the money won from Lewis the latter put his hand under his coat as if to draw a pistol, and that he then fired. He also testified that earlier in the day he had seen Lewis put his pistol on. After the death of Lewis a pistol was found in a scabbard on his body, and his vest was buttoned over it.

The court, over the objection of appellant, allowed the State to introduce the alleged testimony of Ulysses Hamilton and Wash Johnson, previously given at the examining trial before a justice of the peace. The substance of the testimony of these witnesses had been reduced to writing at the time it was given upon the request of the justice of the peace, and was subscribed by said witnesses. The justice of the peace before whom the examination was held identified the several writings purporting to be the testimony of these witnesses, and testified that they contained the substance of all their testimony, that the statements of the witnesses were reduced to writing in his and their presence and read over to them, and that they subscribed and swore to it. Appellant was present at the examining trial, and was given an opportunity to cross-examine the witnesses. It was shown by testimony which the trial court found to be sufficient, and which we now find to be sufficient,...