Carroll v. State

• Decision Date: 06 June 1903
• Citation: 75 S.W. 471,71 Ark. 403
• Parties: CARROLL v. STATE
• Court: Arkansas Supreme Court

75 S.W. 471

71 Ark. 403

CARROLL v. STATE

Supreme Court of Arkansas

June 6, 1903

Appeal from Pike Circuit Court WILL P. FEAZEL, Judge.

Affirmed.

Affirmed.

Kirby & Carter, for appellant.

It was error to deny the motion for continuance. Sand. & H. Dig § 2157; 60 Ark. 564; 62 Ark. 286; 62 Ark. 543; 67 Ark 290. The indictment was insufficient. 26 Ark. 324. It was error to exclude the testimony with reference to statements of the deceased before the killing. Sand. & H. Dig §§ 2113, 2958; 42 Ark. 542. The remarks of counsel were improper. 62 Ark. 516.

George W. Murphy, Attorney General, for appellee.

The indictment was sufficient. 1 McClain, Cr. L. § 382; 60 Ark. 564; 29 Ark. 225.

OPINION

BUNN, C. J.

This is an indictment in the Pike circuit court for murder in the second degree against Lee Carroll, the appellant. The indictment, omitting mere formal parts, reads as follows, to-wit:

"The said Lee Carroll, in the county and state aforesaid, on the 2d day of November, A. D., 1901, did feloniously and with malice aforethought kill and murder W. B. Porterfield by shooting him on the head and body of him, the said W. B. Porterfield, with a pistol loaded with gunpowder and leaden bullets, from the effect of which wounds he died on the 2d day of November, 1901, against the peace and dignity of the state of Arkansas."

To this indictment defendant interposed a demurrer in short upon the record, which the trial court overruled. The grounds of the demurrer are not stated therein, but in their argument and brief counsel for defendant say that the grounds were that it is not stated in the indictment that the killing was either unlawfully or wilfully done. It is sufficient to say that the word "feloniously" includes unlawfully in its meaning, for we can not say that an act feloniously done is not also unlawfully done. When an act is charged to have been done with malice aforethought, it certainly follows that it was wilfully done, for there can be no malice without an exercise of the will, in the perpetration of the deed through malice.

On the call of the case for trial, the defendant announced not ready on account of the absence of a witness, Velpole Loshly, and filed his motion for a continuance on account of the absence of said witness. The motion sets up that "the witness was then at Whittington, Garland county, Arkansas, where he had been residing for six months past, although he resided at Nathan, in Pike county, at the time of the killing, and was present, and saw it; and that if he were present at the trial, he would testify that he saw the difficulty between defendant and the deceased, Porterfield, in which the latter was killed; that deceased raised the row with defendant; that deceased told defendant that he did say that he intended to cut his liver out, and that he would do it if he could, and made for the defendant, shaking his fist in his fact, and that when he got in reach he struck the defendant in the face with his right fist with all the power he had, and then caught him around the neck with (his) right hand and arm, and jerked him off the gallery; and at that time Pierce Porterfield, son of the deceased, jumped off the gallery onto defendant's back; caught defendant by the back of the neck, and hit him in the back, at which time deceased was holding defendant with his right hand, and trying to get his left hand in his left pocket; and immediately after he saw deceased trying to get his hand in his pocket, he saw the defendant draw his pistol and commence shooting," etc. In most respects this was merely cumulative of what was in evidence on the trial.

This indictment was found February 19, 1902, and the matter was postponed until the next term of court, at the instance and on the motion of the defendant, and set for trial on the 20th of August, 1902, and defendant was permitted to stand on his present bond for his appearance. On the 19th day of July 1902, at the instance of defendant, the clerk issued a subpoena for the said absent witness, directed to the sheriff of Garland county, and the same was returned in due time by the sheriff, without indorsement, and at once, at the instance of defendant an alias subpoena was issued by the clerk, directed to the sheriff of Garland county as before, and this writ was returned by the...