Cranford v. State
| Decision Date | 27 November 1922 |
| Docket Number | 4 |
| Citation | 245 S.W. 189,156 Ark. 39 |
| Parties | CRANFORD v. STATE |
| Court | Arkansas Supreme Court |
Appeal from Newton Circuit Court; J. M. Shinn, Judge; affirmed.
Judgment affirmed.
E G. Mitchell, for appellant.
J S. Utley, Attorney General, Elbert Godwin and Wm. T. Hammock, Assistants, for appellee.
The appellant, John Cranford, and Charlie Burns were jointly indicted by the grand jury of Newton County for the crime of murder in the first degree in the killing of one Lige Roberts. Burns was tried separately at a former term of the court and was convicted of murder in the first degree and sentenced to imprisonment for life in the State Penitentiary. He appealed to this court, and the judgment of the trial court was affirmed. Burns v. State, 155 Ark. 1, 243 S.W. 963. The facts and circumstances under which the killing occurred are fully set forth in that opinion, and it could serve no useful purpose to reiterate them here. Burns' connection with the killing was proved by the dying declarations of the deceased as follows: "I heard some one say, 'Now,' and then a gun fired, and Charlie Burns said 'G-- d-- him, I got him'." The deceased did not recognize the voice of the one who said "now," but his dying declaration shows that another was present. It was the theory of the State in the trial of Burns, and also its theory in the trial of appellant, that the appellant and Burns had formed a conspiracy to kill Roberts. The facts upon which the State relied to prove the conspiracy are substantially the same in the present case as they were in the case of Burns v. State, supra. The rulings of the court upon the objections to the admission of the testimony introduced by the State to prove the conspiracy in that case are controlling on the objections made to the introduction of testimony to prove the conspiracy in this case.
One of the principal grounds urged for reversal by learned counsel for appellant in his oral argument before the court was that there was no testimony whatever on the part of the State tending to connect the appellant with the commission of the crime. The burden was upon the State to prove that appellant was a particeps criminis in the killing of Roberts. This, it must be conceded, the State failed to do by the dying declarations of Roberts or by any other direct evidence. The missing link in the dying declarations which fails to connect the appellant with Burns in the killing of Roberts, it occurs to us, has been supplied by other circumstances and the testimony of the appellant himself. In the dying declarations of the deceased he further stated, This tends to prove that there was more than one present when the shooting occurred. The deceased further said that he saw Charlie Burns and John Cranford on the porch at Sol Burns' house that evening before the shooting occurred that night.
Mrs. Grace Estepp, a witness for the State, testified that John Cranford and Charlie Burns were at her home on the afternoon before Roberts was killed that night. They had a gun with them on that occasion. They left her place, going toward the Cranford home.
Denver Cowan, a witness for the State, testified that he was at the Cranford home the night Lige Roberts was killed, and that he saw John Cranford and Charlie Burns together at the Cranford home on that occasion.
The appellant himself testified that he was on the porch at Sol Burns' home, with Charlie Burns, at the time Lige Roberts passed in the afternoon preceding the night of the killing of Roberts. He was with Charlie Burns in the Cranford home on Saturday night until about one-thirty o'clock Sunday morning, after which the appellant, Chester Burns, and others stayed with Charlie Burns until about sunup. In fact, the testimony of the appellant himself shows that he was in the immediate presence of Charlie Burns from early Saturday morning until Sunday morning at sunup, and he testified that he knew that Charlie Burns did not kill Lige Roberts because he was with Burns all the time, and that if Burns did the killing witness was with him.
Now the dying declarations of the deceased were sufficient to warrant the jury in finding that Burns killed Lige Roberts, and these declarations were also sufficient to show that another was present, and since appellant himself testified that he was with Charlie Burns all the time during the night Roberts was killed, and knew that Burns did not kill him, it was within the province of the jury to believe, from Roberts' dying declarations, that Burns killed Roberts, and to accept appellant's statement that if Burns did kill Roberts he was with him, and to disbelieve him when he said that Burns did not kill Roberts.
The jury were the sole judges of the credibility of the witnesses and of the weight to be given their testimony. They had a right to say that appellant was swearing falsely when he testified that Burns was not present and did not kill Roberts on Saturday night, but that appellant was swearing the truth when he stated that he was with Burns all the time during the night Roberts was killed. Hence the jury had the right to conclude that appellant was present when Roberts was killed, and that he participated in the killing.
The appellant presented eleven separate prayers for instructions, which the court refused. Some of them were argumentative in form, and were therefore properly refused by the court. Such of these as were correct declarations of law were fully covered by instructions which the court gave. Counsel for appellant, in his oral argument, especially stressed as error the refusal of the court to give the prayer for instruction on the presumption of innocence. That prayer is as follows:
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