Clark v. State

• Citation: 276 S.W. 849,169 Ark. 717
• Decision Date: 02 November 1925
• Docket Number: 203
• Parties: CLARK v. STATE
• Court: Supreme Court of Arkansas

276 S.W. 849

169 Ark. 717

CLARK v. STATE

No. 203

Supreme Court of Arkansas

November 2, 1925

Appeal from Benton Circuit Court; W. A. Dickson, Judge; affirmed.

Judgment affirmed. Motion denied.

W. H. Spencer and Vol T. Lindsey, for appellant.

H W. Applegate, Attorney General, and John L Carter, Assistant, for appellee.

OPINION

HART, J.

Tyrus Clark appeals from a judgment of conviction of murder in the first degree where a sentence of death was pronounced in conformity with the verdict of the jury trying him.

The body of the indictment is as follows:

"The grand jury of Benton County, in the name and by the authority of the State of Arkansas, accuse John Burchfield, Boyd Jewel, Elva McDonald and Tyrus Clark of the crime of murder in the first degree, committed as follows; to-wit:

"The said John Burchfield, Boyd Jewel, Elva McDonald and Tyrus Clark, in the county of Benton and State of Arkansas, on the eleventh day of June, 1925, then and there being, and while acting and conspiring together and having a common purpose and design to perpetrate the crime of robbery and effect their escape, and while executing the purposes of said conspiracy aforesaid, did unlawfully, feloniously and violently take from the Bank of Sulphur Springs, a corporation, situated and doing a banking business in the town of Sulphur Springs, in the county and State aforesaid, the sum of nine hundred ($ 900) dollars, gold, silver and paper money--current and lawful money of the United States of America; the property of said Bank of Sulphur Springs, a corporation, and of the value of nine hundred ($ 900) dollars, in the presence of one S. O. Whaley, the lawfully authorized and acting cashier of said Bank of Sulphur Springs, a corporation, and having the care and control of said sum of money aforesaid, forcibly and against his will and by intimidating and putting fear in him, the said S. O. Whaley, and while perpetrating said crime of robbery as aforesaid, feloniously, wilfully, and with malice aforethought, and with premeditation and deliberation did kill and murder one Lou Stout, with a certain gun loaded with gunpowder and leaden balls and then and there held in the hands of him, the said Tyrus Clark; the said Boyd Jewel, John Burchfield and Elva McDonald being then and there present aiding and abetting and consenting to aid and abet the said Tyrus Clark in the commission of said homicide, from the effect of wounds so inflicted, he, the said Lou Stout, died on the 12th day of June, 1925, against the peace and dignity of the State of Arkansas."

The general rule is that an indictment upon a statute must state all the facts and circumstances which constitute the statutory offense so as to bring the accused within the provisions of the statute; but it is generally sufficient if it contains the substance thereof.

The indictment in the present case was returned under § 2343 of Crawford & Moses' Digest, and every element of murder in the first degree as defined by the statute is alleged in the indictment, and the court properly ruled that the indictment charged the crime of murder in the first degree and put the defendant on trial for that offense. The indictment fully charges the offense of murder in the first degree by alleging in proper words that Tyrus Clark and other named persons wilfully and feloniously killed Lou Stout while they were engaged in the commission of the crime of robbery. See Henry v. State, 151 Ark. 620, 237 S.W. 454, and Kelly v. State, ante p. 289.

It is claimed by counsel for the defendant that the court should have quashed the indictment because the defendant was tried at a special term of the court which was not called as provided by law.

A call for a special term of the court to be held in Benton County on the 29th day of June, 1925, was signed by W. A. Dickson, judge of the Fourth Judicial Circuit of Arkansas on June 18, 1925, and the call was entered of record. The call recites that it had been certified to the undersigned judge that John Burchfield, Boyd Jewel, Elva McDonald and Tyrus Clark were confined in the Benton County jail, charged with the crime of murder in the first degree for killing Lou Stout on or about June 11, 1925, and for the robbery and burglary of the Bank of Sulphur Springs, Arkansas, on the same day.

The call further recites that it is necessary and expedient that a special term of the circuit court of Benton County be called for the purpose of investigating and disposing of said charges, and it appearing that no term of the circuit court of the Fourth Judicial District in any county convenes prior to the first Monday in August, 1925, and that the regular term of the Benton Circuit Court convenes on the third Monday in September, 1925, it is by the undersigned judge on June 18, 1925, ordered that a special term of said circuit court be convened and held in the circuit court room in Bentonville, Benton County, Arkansas, on Monday, June 29, 1925, at ten o'clock A. M. for the purpose of investigating and disposing of said charges in the manner prescribed by law. It was ordered that the sheriff summon a grand jury of sixteen qualified electors to attend at said special term of the court, that the order for the call be entered of record, and that a certified copy be served upon the prosecuting attorney of the Fourth Judicial Circuit. The order was entered upon the records of the circuit court, and the record also showed that the prosecuting attorney acknowledged the service of summons upon him of the copy of the order on June 18, 1925. The certificate of the clerk shows that the call was placed upon the record by him on June 18, 1925, together with the acknowledgment of service by the prosecuting attorney.

Thus it will be seen that the special call was made by the circuit court under the provisions of § 2218 of [169 Ark. 722] Crawford & Moses' Digest, providing that the judge of the circuit court may at any time hold a special term for the trial of persons confined in jail by making out a written order to that effect and transmitting it to the clerk, who shall enter it on the records of the court.

Section 2220 provides that the judge ordering the special term shall cause a notice thereof to be served on the prosecuting attorney of the circuit ten days before the commencement of such special term.

The prerequisites of the statute were complied with in the case at bar, and the requirements laid down by this court as to a call for a special term to try persons in jail were complied with. Beard v. State, 79 Ark. 293, 95 S.W. 995; Hill v. State, 100 Ark. 373, 140 S.W. 576; Reece v. State, 118 Ark. 310, 176 S.W. 165; Bell v. State, 120 Ark. 530, 180 S.W. 186; and Harris v. State, ante p. 627.

The next assignment of error is that the court erred in refusing to grant the defendant a change of venue. The defendant filed a motion for a change of venue on the ground that the minds of the inhabitants of Benton County were so prejudiced against him that a fair and impartial trial could not be had therein. His petition was duly verified by his affidavit, and the affidavits of two qualified electors, actual residents of Benton County and not related to the defendant in any way were also filed as required by § 3088 of Crawford & Moses' Digest.

The statute requires that the petition be supported by the affidavits of two credible persons. This court has held that the supporting affiants are not credible persons within the meaning of the statute where they do not possess the necessary means of knowledge as to the facts to which they swear. In discussing the question in Price v. State, 71 Ark. 180, 71 S.W. 948, the court said:

"It may happen, and does frequently happen, that the line of demarcation between evidence as to the credibility and of sources of information is difficult to be observed. Therefore, it is necessary that the examination of such witnesses should be set forth in detail in the bill of exceptions. Otherwise, the appellate court must take the examination to have been made within the proper limits, and hold that the ruling of the trial court is correct. This is the status of this particular controversy, and under the rule we must hold that there was no error in this respect. A witness may be truthful and intelligent in the ordinary acceptance of these terms, and yet, on examination before the court, it may be made to appear that he has made his affidavit carelessly, without really possessing any definite and reasonable information as to the public feeling toward the defendant. Then the credibility of the witness is involved, for there is little difference between the effect of false testimony and testimony recklessly given."

In determining the credibility and means of knowledge of the supporting affiants, the circuit court was authorized to inquire, not only as to whether the affiants had sworn, or were likely to swear falsely; but into their motives, intent, feelings and their opportunities and means of knowledge as to the existing prejudice, in order that the court could determine whether they were credible persons under the statute in matters of this nature.

It cannot be said that the action of the court in overruling the defendant's motion for a change of venue was without legal evidence to support it. In this connection it may be stated that Benton County is a large county, containing thirty-four townships. Our Constitution provides for the division of the State into counties and the boundaries of the counties to be fixed by the Legislature under the restrictions provided for in the Constitution. Bittle v. Stuart, 34 Ark. 224. The division of counties into townships is made necessary by the Constitution of the State. St. L., I. M. & S. Ry. Co. v. State, 68 Ark. 561. ...