Dillard v. State

• Decision Date: 18 June 1898
• Citation: 46 S.W. 533,65 Ark. 404
• Parties: DILLARD v. STATE
• Court: Arkansas Supreme Court

46 S.W. 533

65 Ark. 404

DILLARD v. STATE

Supreme Court of Arkansas

June 18, 1898

Appeal from Prarie Circuit Court, Southern District, THOMAS C TRIMBLE, Special Judge.

Judgment reversed and cause remanded for a new trial.

H. King White and J. G. Thweatt, for appellant.

The state should be held to its agreement, made pursuant to the recommendation of the grand jury, to nolle prosequi this case. The delay in bringing defendant to trial was not caused by "the application of defendant," and he should be discharged. Sand. & H. Dig. § 2161. All that is required of a duly qualified expert is that he state his opinion. 61 Ala. 98; 34 Ark. 520; 55 Ark. 593, 599. The court erred in excluding evidence of threats, made by the conspirators immediately before the killing. 43 Ark. 289; 48 Ark. 333. The court erred in overruling the defendant's plea to the jurisdiction of the court.

E. B Kinsworthy, attorney general, for appellee.

The evidence shows that appellant never asked for a trial, and that the cause was continued from time to time, either by consent or upon application of appellant. No abuse of discretion being shown, the presumption is in favor of the trial court's actions. Sand. & H. Dig., §§ 2157 and 2163; 26 Ark. 323; 54 Ark. 243. The special judge has the same power and authority in trying the case for which he is elected as the regular judge could have. Const. Ark. § 21, art. 7; 34 Ark. 569. The indictment need not allege that the assault was committed with premeditation. Sand. & H Dig., § 1477; 55 Ark. 439. It was appellant's duty to have submitted to the arrest, (18 Am. St. Rep. 89); and he is guilty of assault with intent to kill for shooting the officer to prevent arrest. 34 Minn. 361; 37 Kas. 369; 61 Ark. 592.

OPINION

HUGHES, J.

The appellant was indicted by the grand jury of Monroe county for assault with intent to kill, committed, as the indictment alleges, on the first day of September, 1888, upon J. W. B. Robinson, who at the time was the sheriff of the county, and was attempting as some of the testimony tends to show, to arrest the appellant, who was engaged in a fight.

The appellant contends that the indictment was insufficient because it did not charge that the assault was committed with premeditation. The indictment alleges that the assault was made unlawfully, feloniously, wilfully, and with malice aforethought. This is the language of the statute, and is sufficient.

The appellant also contends that the case against him ought to have been dismissed, because a former prosecuting attorney, upon the recommendation of the grand jury that it with other cases ought to be dismissed, had agreed to dismiss it. Of course, there is nothing in this contention.

Appellant also moved the court to dismiss the prosecution against him for the reason that he was not brought to trial within three terms of the court in which he was indicted. This motion was made under section 2161 of Sandels & Hill's Digest, which is as follows: "If any person indicted for any offense, and held to bail, shall not be brought to trial before the end of the third term of the court in which the indictment is pending, which shall be held after the finding of such indictment and holding to bail thereon, he shall be discharged, so far as relates to said offense, unless the delay happen on his application."

The cause, on application of appellant, had been removed from Monroe to Prarie county, where it was tried. When it was called for trial in Prarie county, evidence heard upon this motion, and it appears that there was no order of record in said cause at the March or September term, March or September term, 1895, March or September term, 1896, or March term, 1897; thus showing that seven terms of the court had passed without any steps having been taken in the case. But it appeared in evidence that the former prosecuting attorney, in consequence of the agreement above, had told the appellant not to appear in court again, that his case would be dismissed, and that, relying thereon, the defendant (appellee) had not been at the court since 1892, until the term at which he was tried, being the September term, 1897, at which term he was notified to appear. So it appears that the appellant was consenting to or acquiescing in the delay, and made no demand for a trial or disposition of the case against him.

In the case of Stewart v. State, 13 Ark. 720, where this statute is considered, discussed and construed, the opinion was delivered by Mr. Chief Justice Watkins, with his usual clearness and ability, and the conclusion was reached that "the spirit of the law is that, for a prisoner to be entitled to his discharge for want of prosecution, he must have placed himself on the record in the attitude of demanding a trial, or at least of resisting postponements." Said the learned Chief Justice: "We cannot shut our eyes to the fact, known to all who are acquainted with the administration of justice, that where the crime of magnitude, delays diminish the chances of conviction, and with that hope are usually sought or acquiesced in by the accused." We think the case of Stewart v. State, supra, is conclusive upon the question under consideration here, and so adjudge. There was no error in refusing to dismiss the cause on motion of the defendant.

The defendant (appellant) was arraigned, and pleaded "Not guilty," before the change of venue from Monroe to Prarie county. The Hon. James S. Thomas, judge of that court, being disqualified to try the case, the Hon. T. C. Trimble was elected special judge to try the same. The regular judge opened the court at the term when the trial was had, and the Hon. T. C. Trimble, special judge, sitting to hear the case, on the 8th day of October, 1897, adjourned the court to October 25, 1897. The appellant, by leave of the court, withdrew his plea of not guilty, and filed his plea to the jurisdiction of the court, on the ground that the special judge had no power to convene the adjourned session of the court. The next term of court in that circuit did not begin until November, so the adjournment did not interfere with any other term of court, and was ordered by the special judge elected on account of the disqualification of the regular judge, who had opened the term. The record is silent as to the presence or absence of the regular judge on the 25th of October, when the adjourned session was convened. But if he was absent, the special judge had the power to open the court and try the cause. Having been elected to try this case, he was the judge of the court for that purpose, and had the same power and authority in that case that the regular judge would have had, had he not been disqualified, and had he been trying the case. But when the term ends, the authority of special judge ceases. Const. of Ark. art. 7, § 21; Fishback v. Weaver, 34 Ark. 569.

There was no error in excluding from the jury the testimony of D B. Renfro, Willis Parks, J. W. Walker and R. N. West, because there is no evidence tending to show the connection of J. W. B. Robinson with the matters testified to by them. The testimony of these witnesses tended to show that threats had been made previous to the fight by...