Capps v. State

• Decision Date: 14 July 1913
• Citation: 159 S.W. 193,109 Ark. 193
• Parties: CAPPS v. STATE
• Court: Arkansas Supreme Court

159 S.W. 193

109 Ark. 193

CAPPS v. STATE

Supreme Court of Arkansas

July 14, 1913

Appeal from Sebastian Circuit Court, Fort Smith District; Daniel Hon, Judge; reversed.

Judgment reversed and cause remanded.

Jesse A. Harp and G. W. Dodge, for appellant.

1. The misconduct of the jury in mingling with other guests of the hotel where they stayed, and in reading in both of the daily papers the sensational accounts of the case therein contained, is alone sufficient to reverse this case. The burden was on the State to prove that no prejudice resulted to the defendant. 44 Ark. 120.

Where a defendant in a criminal case has been prejudiced by the reading of newspapers by the jury, the verdict is vitiated. 42 Am. St. Rep. 102; 37 P. 207; 146 Cal. 561; 80 P. 681; 129 Ga. 425; 59 S.E. 249; 12 Ann. Cases, 176; 92 Ia. 455; 61 N.W 179; 124 Ia. 147; 111 N.W. 443; 71 Miss. 82; 14 So. 526; 9 Mont. 508; 24 P. 213; 9 Lea, 440; 20 W.Va. 713; 43 Am. Rep 799; 105 F. 371.

2. The verdict is not sustained by the evidence.

3. The verdict is defective and wholly insufficient to support a judgment of conviction. Kirby's Dig., § 2409; 26 Ark. 325; 2 Bishop on Crim. Proc., § 565; 7 Ia. 236; 11 Ala. 618; 1 Morris, 476; 7 Vt. 259; 3 O. St. 89; 4 Tex. 410; 12 Md. 514; 11 Gray, 438; Id. 8; 12 Allen, 170; 26 Ark. 333; 34 Ark. 649; 67 Ark. 27; Kerr's Law of Homicide, § 542; 58 Ark. 233; 71 Ark. 100; 57 Ark. 267 58 S.W. 350; 143 S.W. 935; 94 Ark. 548.

4. The court's action in refusing to grant a new trial on the ground of newly discovered evidence, consisting of a confession by Bertha Capps that she had sworn falsely in material matters at the trial of the defendant, was manifest error. 44 Tex. 642; 1 Ben. (U.S.) 145.

Wm. L. Moose, Attorney General, and Jno. P. Streepey, Assistant, for appellee.

1. The affidavit of the foreman of the jury, touching the alleged misconduct of the jury, was inadmissible. Kirby's Dig., § 2423; 29 Ark. 293; 59 Ark. 132, 140; 67 Ark. 266, 273. Inasmuch as the trial judge heard the testimony on this point, and was in a better position to judge of the truth of the charge of misconduct, than is this court, his action in overruling appellant's objections will not be disturbed unless there has been a manifest abuse of discretion. 40 Ark. 454, 469.

2. The verdict is sufficient to sustain the conviction because (1) the court instructed the jury that if they found the defendant guilty of murder in the first degree to return a verdict in the form which they adopted. 109 N. W. (Ia.) 1006. (2) This rule concerning the form of verdict in murder cases was adopted in an early case in this State. 26 Ark. 325. See also 7 Ia. 236; 71 Ark. 100; State v. Wiese, 4 N. W. (Ia.) 827, 828, and cases cited.

3. Where newly discovered evidence is merely cumulative or contradictory in its nature, there is no ground for a new trial. 66 Ark. 523; 69 Ark. 545; 72 Ark. 404, and cases cited.

SMITH, J. MCCULLOCH, C. J., dissenting.

OPINION

SMITH, J.

The appellant was indicted for the crime of murder in the first degree, alleged to have been committed in the Greenwood District of Sebastian County, after premeditation and deliberation, by tying Rose Capps and Priscilla Capps in the bed, upon which they slept, and by then and there perpetrating the crime of arson by setting fire to and burning a certain house which they occupied, and which said house was under the control of the said Marion Capps, and thereby wilfully and feloniously caused the death of the said Rose Capps and Priscilla Capps by then and there causing them to be burned to death. The venue was changed to the Fort Smith District, and, upon a trial there, appellant was found guilty and appeals to this court from the judgment sentencing him to hang. A number of exceptions were saved at the trial and are assigned here as error calling for the reversal of the case. Among other grounds upon which a reversal is asked are the discovery of new evidence and the insufficiency of the evidence, but in view of the fact that the case will be reversed for another reason, we do not discuss those assignments of error. No exceptions were saved to any of the instructions, and, as the other errors complained of are not likely to occur at another trial, we discuss only the error, which in our judgment calls for the reversal of the case, and this error is the misconduct of the jury in reading, and in being permitted to read, newspaper articles relating to the trial.

It was also objected that the verdict of the jury was insufficient to support a judgment imposing the death sentence for the reason that it did not declare the degree of the homicide of which the defendant was guilty. Section 2409 of Kirby's Digest reads as follows:

"The jury shall, in all cases of murder, on conviction of the accused, find by their verdict whether he be guilty of murder in the first or second degree; but if the accused confess his guilt, the court shall impanel a jury and examine testimony, and the degree of crime shall be found by such jury."

The judge in his charge to the jury gave them the following directions:

"Gentlemen: If you find the defendant guilty of murder in the first degree, the crime with which he is charged in the indictment, write your verdict, 'We, the jury, find the defendant guilty as charged in the indictment.'

"If you find him guilty of murder in the second degree, write your verdict, 'We, the jury, find the defendant guilty of murder in the second degree, and assess his punishment at a term in the State penitentiary of not less than five nor more than twenty-one years, the time to be fixed by you, not less than five nor more than twenty-one years.'

"If you find the defendant not guilty, write your 'We, the jury, find the defendant not guilty.'

"If you find him not guilty on the ground of insanity, state that fact in your verdict."

The jury returned the following verdict: "We, the jury, find the defendant guilty as charged in the indictment. " It is contended that, although this verdict, read by itself, does not state the degree of the homicide, it is yet made definite and certain by reference to the charge of the court; that the verdict returned employed exactly the language which the court directed to be used in the event appellant was found guilty of murder in the first degree. The courts are divided on the question of the sufficiency of such verdicts, and eminent authority could be cited upon both sides of the question of the sufficiency of this verdict. Unquestionably the verdict would be insufficient except by reference to the charge of the court, but, as we are reversing the case upon another ground, we pretermit any discussion of its sufficiency here as that question is not likely to arise upon another trial.

The newspaper articles complained of were published in the Fort Smith Times-Record, and the Southwest American, daily papers published in that city, and each was shown to have had a large circulation. The foreman of the jury testified upon the hearing of the motion for a new trial that he and other jurors read these articles. But this evidence was not competent for that purpose and would be insufficient to support a finding that members of the jury had read these articles, because jurors are not thus allowed to impeach their verdict. Section 2423 of Kirby's Digest; Wilder v. State, 29 Ark. 293. Smith v. State, 59 Ark. 132, 26 S.W. 712; Hampton v. State, 67 Ark. 266, 54 S.W. 746. But the finding that the papers had been read by the jury did not depend alone upon the affidavit of the jurors, as the officer in charge of the jury and the proprietor of the hotel at which the jury was being entertained testified that the jurors bought these papers and some of the jurors read them, and that other jurors had access to the daily papers belonging to the hotel and read them as other guests did. These articles were very lengthy, extending over several columns of each of these papers, and we will not set them out, in extenso, but copy the following excerpts from them:

(Fort Smith Times-Record):

"HEARS HIS CHILDREN TELL HOW HE TRIED TO BURN THEM TO DEATH IN THEIR BEDS.

"Calmly and dispassionately Bertha and Ellis Capps told the jury in the circuit court this morning a story that, if not broken down, will send their father, Marion Capps, to the electric chair, that mode of capital punishment having been substituted by the present legislature for hanging.

"THE FLAME-SCARRED BROTHER.

"Ellis Capps, aged fourteen years, bore plainly the evidence of his close call from death in the flames in scars that disfigured his forehead and hands and mutilated one ear. His testimony did not materially differ from that given by his sister.

NEIGHBOR TESTIFIED TO ROPE--CAPPS FEARED MOB.

"Wiggington says Capps expresses desire for officer to make haste to get him to a place of safety, as it was horrible affair and was afraid neighbors do him bodily harm."

And the following excerpts are taken from the Southwest American:

"Children testify that father murders three by firing home, other witnesses for the State told of finding ashes held in perfect form of charred rope, across the breast of the children who met death in the house."

"Judge Harp was scored by the court by the non-arrival of a witness from Jenny Lind, whose absence caused a halt in the case. Shortly afterward, when counsel attempted to place on stand a witness who had been given the privilege of court room throughout hearing, Judge Hon again grew warm in his remarks to Judge Harp, and said condemned counsel's action in case of missing witness as well as in other case."

"ON CROSS EXAMINATION WIGGINGTON.

"Said he saw big oil can in the ruins. The top dented, no flames issuing from the holes. The prosecution contends that this...