Duckworth v. State

• Decision Date: 01 June 1908
• Citation: 111 S.W. 268,86 Ark. 357
• Parties: DUCKWORTH v. STATE
• Court: Arkansas Supreme Court

111 S.W. 268

86 Ark. 357

DUCKWORTH v. STATE

Supreme Court of Arkansas

June 1, 1908

Appeal from Ashley Circuit Court; George W. Norman, Special Judge affirmed.

Judgment affirmed.

William F. Kirby and Dan'l Taylor, for appellee.

HILL C. J. MCCULLOCH, J., dissents.

OPINION

HILL, C. J.

This is the second appeal of Duckworth. A former conviction under the indictment was reversed. Duckworth v State, 83 Ark. 192. On the second trial he was convicted of larceny, and his punishment was assessed at a year in the penitentiary; and from the judgment rendered thereon he has appealed.

1. The first question is as to the action of the trial court in refusing a change of venue. The petition for change of venue was filed the 28th of January, supported by the affidavits of T. W. Carlock, J. T. Davis and N. C. Thurman. The court examined each of these witnesses as to their knowledge of the matters concerning which they had testified in their supporting affidavits, and it developed that they had sworn recklessly in testifying that the minds of the inhabitants of the county were so prejudiced against the defendant that he could not obtain a fair trial, because their knowledge was limited to only a few people in a small hamlet. Under the decisions in White v. State, 83 Ark. 36, 102 S.W. 715; Duckworth v. State, 80 Ark. 360, 97 S.W. 280; Price v. State, 71 Ark. 180, 71 S.W. 948; and Jackson v. State, 54 Ark. 243, 15 S.W. 607, there was no error in overruling the petition.

2. When the court overruled the petition for a change of venue, the defendant's attorney withdrew from the case, and declined to have anything further to do with it. Other attorneys were selected by the defendant, and, after time given for consultation and preparation, the trial proceeded. The first step taken by these attorneys was the filing of a second petition for change of venue. It was to the same effect as the one heretofore passed upon, on the same day, and was supported by T. W. Carlock, W. R. Morrell, E. D. Days and Dennis Dailey. The latter three were not upon the former petition. The court declined to hear this petition, and overruled it without investigation.

The statute (sections 2317, 2318 of Kirby's Digest) permits a defendant to file a petition for a change of venue when he believes, for the causes therein mentioned, that he cannot obtain a fair and impartial trial in that county, and it requires the petition to be supported by affidavits of at least two credible persons, qualified electors and actual residents of the county, not related to the defendant in any way. There is nothing in the statute to indicate that a defendant is at liberty to continue filing petitions for a change of venue after one is acted upon. It might occur that an examination of the compurgators would develop that they had sworn recklessly, and yet the defendant still be entitled to a further opportunity of presenting his petition, but then he should show that he was surprised by the testimony of his compurgators...