Dewein v. State

• Decision Date: 12 October 1914
• Docket Number: 160
• Citation: 170 S.W. 582,114 Ark. 472
• Parties: DEWEIN v. STATE
• Court: Arkansas Supreme Court

170 S.W. 582

114 Ark. 472

DEWEIN v. STATE

No. 160

Supreme Court of Arkansas

October 12, 1914

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

Judgment affirmed.

Charles P. Johnson, and Jones & Owens, for appellant.

1. The record, we think, conclusively shows the incompetency of the venireman, G. D. Smith, to sit as a juror, because of his having read in a newspaper what purported to be the original confession made by the defendant and had formed a fixed opinion as to his guilt. 45 Ark. 165, 170; 13 Ark. 720; 19 Ark. 156; 1 Bishop, Cr. Proc. § 910; 8 Cal. 359; 40 Cal 268; 56 Ark. 381, 402; 69 Ark. 322; 102 Ark. 180; 140 Am. St Rep. 1086.

2. Appellant was entitled to a new trial, and the cause should be reversed because the juror Dodson testified falsely upon his voir dire examination, as to any bias or prejudice he might have against the defendant, and his false statements were unknown to appellant and his counsel at the time of such examination. Fed. Cas. No. 5, p. 126; 3 U.S. 3 Dall., 515; 9 Cal. 298; 4 Ill. 412; 28 Tenn. 411; 41 Tex. 573; 25 Tex. 26.

3. It was within the province of the jury to say from the evidence whether the crime was murder in the first degree or second degree, and to this end they were entitled to an instruction as offered by the defendant, giving the distinction between the degrees of murder. 162 U.S. 313; 58 Pa. 17.

4. After the venireman Glass had qualified as a competent juror, and defendant had exhausted his challenges, it was prejudicial error for the court to sustain the challenge for cause interposed by the State.

Likewise it was error to permit the State to challenge peremptorily the juror Gunter, the next day after he had been examined, found qualified and accepted as a juror by both sides, and without assigning a reason therefor as this court has repeatedly held should be done.

5. The so-called confession should have been excluded because it was incomplete. This court has repeatedly held that a confession in part can not be received, but that the defendant is entitled to the whole of the confession. Moreover such confession "must be free from the taint of official inducement either from the flattery of hope or the torture of fear." 107 Ark. 568.

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

1. It was not error to accept the venireman Smith as a juror. Opinions formed from mere rumor or from newspaper accounts, do not render a juror incompetent, if, on his voir dire he declares that he can and will lay aside any opinion he may have formed and be governed only by the law and the evidence of the case. 85 Ark. 64; 101 Ark. 443; 104 Ark. 616; 109 Ark. 450.

2. The court properly refused to grant a new trial on the alleged ground of the incompetency of the juror Dodson. His affidavit to the effect that he had never had the conversations attributed to him, nor discussed the merits of the case until after he was chosen as a juror and the verdict had been rendered, is supported by the affidavits of several other reputable men, and justified the action of the court. 90 Ark. 400; 97 Ark. 92; 99 Ark. 407; 109 Ark. 476; 72 Ark. 158.

3. If appellant was guilty of murder at all, it was murder done in the attempt to commit robbery or in the completed act of robbery, which the statute makes murder in the first degree. Kirby's Dig., § 1766. There was nothing in the case on which to base an instruction on murder in the second degree. 52 Ark. 345; 74 Ark. 444; 85 Ark. 514; 88 Ark. 447.

4. The State had the right to challenge juror Gunter after he had been accepted by both sides, and there was no error in permitting it. 81 Ark. 589.

5. Appellant's confessions were properly admitted. 39 Ark. 379.

The court properly refused to give instruction 20 requested by the defendant, it being the province of the court to determine whether or not a confession shall be admitted.

OPINION

HART, J.

Clarence Dewein was indicted, tried before a jury and convicted of murder in the first degree. From the judgment of conviction he has duly prosecuted an appeal to this court. The facts are substantially as follows:

L. H. Thompson, in November, 1913, resided in the south end of the town of Benton in Saline County, Arkansas, and was killed one evening something after 9 o'clock. He owned and operated a store and also resided there and ran a hotel or rooming house in connection with his business. On the evening he was killed his wife left him counting his money and went to an adjoining room to go to bed. After he finished counting his money he went out on the front porch to smoke. There was a lighted lamp in one of the front windows. A neighbor, who was also sitting on his front porch smoking, saw two men approaching the store of the deceased. Just before they got there, the neighbor testified, they separated and one of them, who was dressed in a dark gray shirt, with a cap pulled down over his face, walked up on the porch where Thompson sat and said something to him. Thompson got up and walked into the store and the man followed him. Just as the man followed Thompson into the door he nodded to his companion who had come up and was playing with a cat on the porch. His companion then followed him into the store and the light was put out. This neighbor further stated that he did not hear any commotion but became suspicious of the men from their actions and went into the house and procured his gun. When he came out he saw two men walking rapidly away and was unable to capture them. The second man had a long coat buttoned up, and also had his cap pulled down over his face.

Mrs. Thompson heard a commotion in the store room, returned there and found her husband sitting on the floor complaining of his head. A coupling pin was lying on the floor right beside him. A physician was summoned at once and upon examination of Thompson found the base of his skull crushed all to pieces. There was a stroke on the left side and another on the right about three inches long. The physician opened up Thompson's skull at the place where it was fractured and took out a piece of the skull about the size of a dollar. He then raised the skull and said that the old man's breathing became good. Thompson died the next day about 2 o'clock. The physician testified that blows from a blunt instrument caused his death and that the most severe blow was at the base of the brain. He found a coupling pin, which was all bloody and had hairs on it, near the body. The deceased was about seventy years of age at the time he was killed and was a strong and vigorous man for that age.

The manager of the electric light plant at Benton, which was near Thompson's store, testified that about twenty minutes before the killing was reported to him he saw defendant in front of the light plant, that he had on a pair of light looking pants, a coat and a black cap; that he had a companion with him who had on a gray shirt and a brown necktie; that the defendant's companion did not have on a coat but had on a pair of leggings. The light plant was about eighty yards from the store of the deceased.

Mrs. Sarah Ewing testified: At the time the killing occurred I was running a boarding house in Benton and the defendant boarded with me. Joe Strong assisted me in my work. My boarding house was about a quarter of a mile from where Mr. Thompson was killed. The defendant, on the night in question, had supper at my house and went away after supper. Later on he came back and stayed all night. He did not eat any breakfast. He went to Little Rock Sunday morning, came back that evening, ate supper and stayed all night at my house. On Monday, after dinner, I went to the defendant's room and began talking to him about the killing and asked him if he was not implicated in it. He first denied it and then said that he was. I then asked him to tell me all about it and asked him how he came to be in it. He said that he and some companions had gone to Mr. Thompson's store prior to the night of the killing and had seen him counting money; that on the night of the killing he went down to see if they could get the money; that when he got down there Mr. Thompson was sitting on the porch playing with a little eat; that Joe Strong was with him and that Strong grabbed Thompson around the neck; that Thompson got loose and ran into the house; that Joe Strong hit Thompson one lick with the coupling pin and that he then took the pin and finished him; that Joe got blood on his clothes and, after they left the scene of the killing, pulled off his shirt and leggings and threw them into a creek and that he pulled off his coat and gave it to Joe to wear until they got to the house.

On cross-examination Mrs. Ewing stated that she told the defendant that if he would tell her about the killing she would not say anything about it. Afterwards she reported the matter to the officers and her statement was written down by them. She said that the defendant had said to her that they did not intend to kill the deceased but that it turned out worse than they thought.

After the defendant was arrested it was reported to the officers that a shirt and some leggings would be found at a certain place in a creek near by. They made a search there and found the shirt and leggings which were all bloody. They also found a pocket book which had belonged to the deceased. The defendant's grip was also searched after his arrest and a pistol was found in it which Mrs. Thompson identified as being like one her husband owned. The pocket book found after the killing was empty when found but contained about ten dollars when last in Mr. Thompson's possession.

The defendant made a written confession which is substantially as follows: My name is Clarence Dewein; I will be twenty...