Caughron v. State

• Decision Date: 26 June 1911
• Citation: 139 S.W. 315,99 Ark. 462
• Parties: CAUGHRON v. STATE
• Court: Arkansas Supreme Court

139 S.W. 315

99 Ark. 462

CAUGHRON v. STATE

Supreme Court of Arkansas

June 26, 1911

Appeal from Polk Circuit Court; James S. Steel, Judge; affirmed.

Judgment affirm.

Witt & Witt, Pole McPhetrige and Morris M. Cohn, for appellant.

1. Juror Hamilton should not have been excused by the court. 76 Ark. 84; Kirby's Digest, § 2360.

2. Defendant should not have been required to testify before the coroner's jury without first being informed of his right to decline to so testify and thereby be given an opportunity to elect. His evidence under the conditions could not be subject to impeachment. Kirby's Digest, § 3088.

3. The written statements of witnesses before the coroner's jury were at least quasi records. They would be primary proof and until their loss was established by competent proof no secondary evidence as to their contents would be admissible. Wharton's Crim. Evidence, chap. 4, pp. 135-141; 17 Cyc 465-471; 2 Ark. 229; 31 Ark. 411; 32 Ark. 117; 33 Ark. 539; 48 Ark. 156; Kirby's Digest, § 3139.

4. Alleged conversation inadmissible, first, because it occurred in absence of defendant, and, secondly, because immaterial.

5. Instructions numbers thirteen and thirty-three, given at appellee's request, were entirely wrong as postulates of law applicable to this case, 76 Ark. 110; 3 Wharton Homicide, p. 487; Wharton, Crim. Law. (10 ed.), § 309; 37 Ind. 432.

6. Instructions numbers fifteen and thirty-two, given at appellee's request, were entirely abstract. The thirty-second instruction was improper.

7. Instructions numbers twenty-three and twenty-seven, given at appellee's request, presume a condition that was not justified by the facts. 93 Ark. 409, 414.

8. The court erred in refusing to give instruction number fifteen requested by the defendant.

9. The court erred in refusing to give instruction number twelve requested by the defendant. 59 Ark. 132; 1 Wharton, Crim. Law (1O ed.), § 493; 1 Jones 190 (N. C.); 23 Ala. 17; 30 Cal. 312; 31 Cal. 357; 25 Gratt. (Va.) 887; 31 Miss. 504.

10. The court erred in permitting counsel for appellee, in its closing argument, to make a physical demonstration, unjustified by the facts, which was in effect the introduction of new evidence.

11. No instruction was given which told the jury that as to degree the doctrine of reasonable doubt had application as well as to the question of guilt. 85 Ark. 357, 359. Cf. Kirby's Digest, § 2386.

12. The court abused its discretion in refusing to grant time in which to file a bill of exceptions. Kirby's Digest, §§ 2429-2431; §§ 6222 to 6227. 5 Ark. 81, 85; 77 Ark. 417; 1 Pet. 46; 14 Am. Dig., Cent. Ed., Col. 2874, § 309; 18 Decennial Dig., pp. 1011, 1012, § 227; 106 Mo. 217, 225; 38 Ark. 283; 11 Tex.App. 110; 11 Tex.App. 148; 2 Thompson, Trials, §§ 2809, 2810; 15 S.W. 288; 63 Ind. 327; 49 Wis. 415; 1 Wall., Jr. 137; 136 Cal. 660; 22 Neb. 145.

Hal L. Norwood, Attorney General, and Wm. H. Rector, Assistant, for appellee.

1. The court did not err in excusing the juror Hamilton. Kirby's Digest, § 2360.

2. The testimony of Bowen and Mitchell, members of the coroner's jury, relative to testimony of Maples, appellant's witness, before that body, was competent.

3. Appellee's instruction number thirteen was not prejudicial. Kirby's Digest, § 1265; 98 Ark. 430; 76 Ark. 110; 76 Ark. 515.

4. Appellee's instruction number thirty-three was good. Wharton, Homicide, (3 ed.), § 313; 60 Ark. 76; 2 Bishop's New Crim. Law, § 637; 45 Ark. 464; 28 Ark. 160.

5. Appellee's instruction number thirty-two was correct.

6. Appellee's instructions numbers twenty-three and twenty-seven are the law. 93 Ark. 414; 26 Ark. 286, 307.

7. Appellant's requested instruction number fifteen was properly refused. 93 Ark. 414; 75 Ark. 350; 69 Ark. 649; 59 Ark. 132.

8. Appellant's requested instruction number twelve was properly refused.

9. The bill of exceptions does not contain any reference to the "illustrated argument" of counsel for appellee. It was not testimony.

10. It was within the sound discretion of the trial judge as to whether or not the time should be extended for filing bill of exceptions. Secs. 2429-2431 and §§ 6222-6227, Kirby's Digest; see cases cited in 5 Words and Phrases, pp. 4818-4447; 27 N.Y.S. 980; Constitution 1874, Art. V, § 18; 10 S. L. 332; 63 ind. 327; 38 Ark. 283; 100 Mo.App. 311; 103 Wis. 98; 11 S.W. 594; Elliott on Appellate Procedure, § 622; 106 Mo. 217; 24 Ky. (J. J. Marshall) 55; 7 Lea (Tenn.) 62; 38 Ark. 216; 58 Ark. 110; 53 Ark. 415; 66 Ark. 312; 72 Ark. 254.

OPINION

MCCULLOCH, C. J.

Appellant, A. J. Caughron, was indicted by the grand jury of Montgomery County for the crime of murder in the first degree for killing one Allen Stacy, and he obtained a change of venue to Polk County, where he was tried at the October term, 1910, of the court, and convicted of that degree of homicide. The trial was concluded on Friday, October 28, 1910, and he filed a motion for a new trial on October 29, which the court on that day overruled. He asked for time in which to present and file a bill of exceptions, but the court refused to grant it. On that day the court was adjourned without day, and the term of the Honorable James S. Steel, the judge of that circuit, expired and he was succeeded by the Honorable J. T. Cowling. On December 15, 1910, counsel for appellant presented a bill of exceptions to Judge Steel, and, notwithstanding his prior refusal to grant time, he signed the bill, and it was filed with the clerk, and has been duly certified in the transcript as a part of the record. Counsel for appellant and the Attorney General have also joined in a written stipulation, filed here, that the bill of exceptions as filed and certified is a correct record of the trial, showing all the testimony in the case, the instructions and rulings of the court and all the objections of appellant. The record did not originally show that time for presenting the bill of exceptions had been requested and refused, but at a subsequent term of the court an order was entered, nunc pro tunc, showing those facts. The transcript was presented to one of the judges of this court, and an appeal was granted within the time prescribed by statute.

Counsel for appellant insist that the trial court abused its discretion in refusing to grant time for filing the bill of exceptions, and a majority of the judges are of the opinion that this contention should be sustained. The record should be looked to, according to the views of the majority, in order to determine whether time should have been granted, and the size of the record made by the bill of exceptions convinces them that it was impossible to prepare the bill of exceptions without additional time, and that it was erroneous to refuse to grant time. The statute provides that "the party objecting to the decision must except at the time the decision is made, and time may be given to reduce the exception to writing, but not beyond the succeeding term." Kirby's Digest, § 6222. The act of May 31, 1909, provides that on appeals or writs of error to the Supreme Court in capital cases "all errors of the lower court prejudicial to the rights of the appellant shall be heard and considered by the Supreme Court, whether exceptions were saved in the lower court or not." Acts 1909, P. 959; Harding v. State, 94 Ark. 65, 126 S.W. 90. The only vehicle by which a complete history of a trial can be brought upon the record is a bill of exceptions, yet the apparently anomalous situation is presented of this court being required by statute to consider errors without exceptions having been saved at the trial, but no other means are provided for bringing the history of the case upon the record. The only construction of the statute, as amended, which will carry out the will of the lawmakers is to hold that in capital cases no formal exceptions need be saved at the trial, but that a bill of exceptions must be presented to the presiding judge and signed and filed in order to make a record of the proceedings; otherwise there is no record for this court to review. Garner v. State, 97 Ark. 63, 132 S.W. 1010.

It being determined that the court erred in refusing to extend the time for filing bill of exceptions, the next question that presents itself is, what action is required in order to correct the error? Must the case be remanded for a new trial? The presiding judge, notwithstanding the expiration of his term, is competent to sign a bill of exceptions. O'Neal v. State, 98 Ark. 449, 136 S.W. 936. When it appears that he has erroneously refused to grant time to prepare a bill of exceptions, this court can correct the error by granting time and by compelling him, by mandamus, to sign a bill of exceptions which meets his approval. The aggrieved party cannot be made to suffer by an erroneous ruling of the court, and is entitled to a bill of exceptions when he has without fault proceeded with due diligence and within the terms of the statute. Springfield v. Fulk, 96 Ark. 316, 131 S.W. 694. It appears from the record that a bill of exceptions was presented to the presiding judge within a reasonable time, and that he signed it. Hence it would be useless to compel him to repeat that which he has already done. The error is therefore corrected by accepting the bill of exceptions thus signed and filed as a part of the record, and the appellant cannot rightfully insist on more than that he be heard on the merits of the case as presented in the record which he has caused to be made and which he has expressly stipulated is correct.

The first assignment of error is as to the ruling of the court in excusing a juror after he had been accepted by both sides. The juror stated to the court that he was subject to spells and was liable to be sick, especially if he...