Dewein v. State

• Decision Date: 27 September 1915
• Docket Number: 129
• Citation: 179 S.W. 346,120 Ark. 302
• Parties: DEWEIN v. STATE
• Court: Arkansas Supreme Court

179 S.W. 346

120 Ark. 302

DEWEIN v. STATE

No. 129

Supreme Court of Arkansas

September 27, 1915

Appeal from Saline Circuit Court; W. H. Evans, Judge; affirmed.

Judgment affirmed.

Charles P. Johnson, Jones & Owens and Gardner K. Oliphint, for appellant.

1. The court ought to have granted the motion for change of venue. Its denial was an abuse of discretion for which the cause should be reversed. The two supporting witnesses, whom the court found to be "reputable citizens of Saline County" and that "there is no question raised as to their credibility," testified to a state of facts showing their knowledge of the condition of the minds of the inhabitants of all parts of the county, and that it was such that appellant could not obtain a fair and impartial trial on the issue of insanity in that county. Kirby's Dig § 2317; 98 Ark. 141; 71 Ark. 180; 85 Ark. 574; Id. 536; 83 Ark. 36; 76 Ark. 276; 95 Ark. 241; 101 Ark. 441; 107 Ark. 31; 100 Ark. 218; 37 S. E. (W. Va.) 627.

2. The court erred in overruling appellant's challenges for cause against certain veniremen, thereby forcing him to exhaust his peremptory challenges and to submit to veniremen being taken on the jury who were disqualified by reason of opinions formed as to his being guilty of murder, for which he had been tried and convicted. 69 Ark. 322; 102 Ark. 183; 140 Am. St. Rep. 1086; 45 Ark. 165; 13 Ark. 720; 19 Ark. 156; 1 Bishop Cr. Proc., § 910; 8 Cal. 359; 40 Cal. 268; 66 Ark. 55; 113 Ark. 301; 3 U.S. 518; 9 Cal. 298; 2 N.H. 349; 10 Yerg. 241; 5 Ga. 85; 3 Scam. 412; 69 S.W. 778; 3 Humph. 377; 6 Baxt. 474; 12 Lea 443; 15 Lea 545; 52 S.W. 997; 60 S.W 968; 49 S.W. 83; 113 N.C. 711; 18 S.E. 515; 63 L. R. A. 814 815; Id. 872; 3 Bl. Com. 374; 27 N.W. 539; 60 Ark. 221; 70 Ark. 132; 56 Ark. 404; 21 Ark. 336; 61 Ark. 359; 85 Wis. 400.

3. The verdict is contrary to the law and the evidence, so much so as to shock the sense of justice of a reasonable person. The proof of appellant's insanity at the time of his trial for murder is clear and overwhelming, and opposed thereto was only the testimony of lay witnesses, many of whom were shown by their own testimony to be biased and prejudiced against appellant and all of whom were ignorant of the effect upon the mind of the disease with which he was afflicted, and the testimony of one physician who, by his own admission, had made no examination of him, and had written the Governor asking that appellant's sentence be not commuted. Such testimony amounted to no contradiction of the positive testimony of the experts who fully qualified themselves as such. 70 Ark. 385; Osborne v. Hittson, 118 Ark. 349, 176 S.W. 319, 320; 70 Ark. 116; 3 Witthaus & Becker Med. Jur. 182; 177 S.W. 362, and authorities cited; 101 Ark. 532; 53 Ark. 96; 67 Ark. 514; 80 Ark. 396; 96 Ark. 504; Id. 37, 131 S.W. 44, Am. Cases 1912 B, 383.

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

1. It is only for a gross abuse of discretion, amounting to a denial of justice, that this court will reverse on account of the trial court's refusal to grant a change of venue. 79 Ark. 594; 103 Ark. 352; 94 Ark. 169.

2. There was no error in the court's rulings on the qualifications of jurors. Appellant was being tried, not for murder, concerning his guilt of which they stated that they formed opinions, but upon the issue as to whether or not he was insane at the time the murder was committed, and upon that issue they stated that they could give him a fair and impartial trial.

3. The evidence sustains the verdict. The non-expert witnesses introduced by the State had all had the opportunity for personal observation of the appellant, and stated the facts upon which they based their opinions. 106 Ark. 362, 368.

OPINION

MCCULLOCH, C. J.

Appellant, Clarence Lee Dewein, was convicted in the circuit court of Saline county, Arkansas, on April 25, 1914, of the crime of murder in the first degree, and on appeal to this court the judgment of conviction was affirmed. 114 Ark. 472, 170 S.W. 582. The crime which he was adjudged to have committed consisted of the killing of one L. H. Thompson, an aged man, in the town of Benton, and the proof showed that it was committed by appellant and one Joe Strong, and that they killed Thompson for the purpose of robbing him of his money. Both of the men were convicted and sentenced to death by electrocution. Subsequent to the affirmance of the judgment by this court, appellant filed in the Saline Circuit Court a petition for a writ of error coram nobis, praying for an inquiry into the question of his sanity at the time of the trial, and that the judgment of conviction be set aside on the ground that he was insane at the time of the trial and without capacity to conduct his defense. The writ was duly issued by the judge of the circuit court, and at the next term there was a trial of the issue before a jury, which resulted in a verdict establishing appellant's sanity at the time of his conviction. An appeal has been duly prosecuted to this court.

Appellant presented to the trial court a petition for a change of venue. The petition was in the form prescribed by statute and was supported by the affidavits of two qualified electors of the county, who, it is claimed, were credible persons. The statute provides that a petition for a change of venue in a criminal must be supported "by the affidavit of two credible persons who are qualified electors, actual residents of the county and not related to the defendant in any way." Kirby's Digest, § 2318. When the question of insanity of a convicted person is to be submitted to the jury on writ of error coram nobis, after conviction and sentence, the petitioner is entitled to a change of venue as in other criminal cases. Adler v. State, 35 Ark. 517. The supporting affiants were called before the court to testify on an inquiry as to their credibility, and they were examined and cross-examined at length. The court overruled the motion for change of venue, and in doing so the trial judge said that "the witnesses are reputable citizens of Saline County, and in passing upon the motion and in considering their testimony, only their knowledge of the conditions will be considered."

In a criminal case, when a petition for a change of venue and the supporting affidavits are in the form prescribed by statute, the only inquiry upon which the trial court may enter is as to the qualifications of the supporting witnesses; and if it be found that they come within the definition of the statute, as "credible persons who are qualified electors, actual residents of the county and not related to the defendant in any way," the court has no further discretion and the order for a change of venue must be made. The court may, however, in order to pass upon the credibility of the supporting witnesses, have them called before the court and examined. That is not the exclusive method of passing upon the question, but it is the familiar one more often pursued in this jurisdiction. The court may inquire into the means of knowledge of the witness and as to the probability of the petitioner being able to obtain a fair and impartial trial, but only for the purpose of reaching a conclusion upon the credibility of the supporting witnesses.

It is insisted, in the first place, that the trial court found as a matter of fact that the witnesses were credible persons, and that his order overruling the motion for change of venue was inconsistent with that finding. The argument is based upon the statement made by the trial judge to the effect that the witnesses were "reputable citizens of Saline County;" but the remainder of the sentence uttered by the court at the time shows that this statement was not meant as a finding that the witnesses were credible persons within the meaning of the statute, for the judge said in the same connection that there was no question raised as to the credibility of the witnesses "except as to their knowledge as to the condition of the minds of the inhabitants in the county." It is true that the word "reputable" is laid down by the lexicographers as synonymous with the word "credible," but the two words are not synonymous in the fullest sense and can not be treated as synonymous when considered in interpreting our statute on the subject of change of venue. A person may be of good repute in the community in which he lives, and yet, by reason of a reckless and inaccurate oath, based upon insufficient knowledge, fail to be a credible person within the meaning of the statute. A credible person is one who has the capacity to testify on a given subject and is worthy of belief; and one who lacks knowledge on the subject under investigation is not a credible person to be accepted as worthy of belief in that particular inquiry. So we are of the opinion that the trial judge did not mean to declare a finding that the witnesses were credible persons within the meaning of the statute, and that we must test the correctness of the court's conclusion on that issue by a review of the record as presented to the judge upon the inquiry as to their credibility.

Now the witnesses did not pretend to have a general knowledge of the state of the mind of the citizens of all portions of the county. Nor did their knowledge extend to the state of mind of the people with reference to the issues to be presented on the trial. On the contrary, they appear to have rested their conclusions entirely upon the fact that there was a widespread belief in the minds of the inhabitants of the locality, of which the witnesses were advised, that appellant was one of the parties who had robbed and slain L. H. Thompson, and the supporting witnesses seem to have drawn the conclusion therefrom that those who shared that belief...