Evans v. State
| Decision Date | 01 July 1893 |
| Citation | 22 S.W. 1026 |
| Parties | EVANS v. STATE. |
| Court | Arkansas Supreme Court |
Appeal from circuit court, Ouachita county; Alexander M. Duffie, Judge.
John S. Evans was convicted of the murder of Henry Wample, and appeals. Affirmed.
Bunn & Gaughan and Jesse B. Moore, for appellant. James P. Clarke, Atty. Gen., for the State.
The appellant, Evans, was indicted by a grand jury of the Union circuit court for murder. On his motion the venue was changed from Union to Ouachita county, where he was tried in the circuit court, and convicted of murder in the second degree, and his punishment was fixed at 21 years in the penitentiary.
On the 22d of November, 1892, A. M. Duffie, judge of the seventh judicial circuit, and C. W. Smith, judge of the thirteenth judicial circuit, of Arkansas, entered into a written agreement, by which they exchanged circuits from the 22d to the 24th day of November, 1892, inclusive, the said C. W. Smith agreeing to perform the duties of the seventh circuit, and A. M. Duffie agreeing to discharge the duties of the thirteenth, for said period. In this period of time Judge Duffie presided as judge of the Ouachita circuit court, and appellant was tried. Before his trial he protested against Judge Duffie presiding therein, because, he said, Judge Smith was "related within the fourth degree by affinity to Henry Wamble, the person charged in the indictment herein to have been killed by the defendant, the said C. W. Smith being the uncle by blood of the wife of said Henry Wamble, who is also deceased, leaving issue surviving each of them now living;" and because Judge Duffie was presiding under said agreement, which had been filed and made a part of the record of the court. The state filed a demurrer to the protest, and the court sustained it.
Appellant insisted that Judge Duffie had no right or was disqualified to preside in his trial, because of Judge Smith's relationship to the deceased. How this could disqualify Judge Duffie we are unable to understand. The constitution authorized them to temporarily exchange circuits or hold courts for each other under the regulations prescribed by law; and the statute empowered them to exchange circuits or hold courts for each other for such length of time as seemed to them practicable and to the best interest of their respective circuits and courts. The disqualification of one to preside in causes pending in his courts, or the impropriety of his so doing, might well have been a good cause or reason for the exchange.
In exchanging circuits, they had the right to fix the time according to what in that respect seemed to them practicable and to the best interest of their respective circuits and courts. When the exchange was made, the law did not limit the right of either to preside in trials to those wherein the regular judge was not disqualified. The disqualification of one did not attach to the other or affect his qualification.
The indictment of the appellant was as follows: "The grand jury of Union county, in the name and by the authority of the state of Arkansas, on oath, accuse the defendants, John Evans and Dick Neyman, of the crime of murder, committed as follows, to wit: The said defendant, on the first day of May, 1892, in Union county, Arkansas, did unlawfully, willfully, feloniously, and of their malice aforethought, and with premeditation and deliberation, assault, kill, and murder one Henry Wamble, in the peace of the state, by shooting him, the said Wamble, with a gun loaded with gunpowder and leaden bullets, which said gun was then and there a deadly weapon, and in the hands of them, the said John Evans and Dick Neyman, had and held, with the felonious intent, and with malice aforethought, and with deliberation and premeditation, him, the said Henry Wamble, to kill and murder, against the peace," etc.
Appellant demurred to it, for the following reasons: (1) "That in said indictment the defendant and Dick Neyman are accused of the crime of murder, but that only one of them is charged with the acts constituting the offense, and which one is not shown." (2) "That the defendant and Dick Neyman are alleged to have had in their hands only one gun, by and through the instrumentality of which only they are alleged to have taken the life of Henry Wamble." The demurrer was overruled.
The first ground points out what is obviously a clerical error. The indictment shows that "defendants" was unquestionably intended instead of "defendant." There can be no excuse for mistaking its meaning.
The second ground is untenable. The defendants, if they were present, aiding and abetting the killing, were principals, and were properly indicted as such. It is immaterial which of them is charged with having inflicted the mortal wound, because, both being present, aiding and abetting, the law imputes the injury caused by one to the other. They are accused of a murder committed by shooting with a gun held in their hands. This act, although improbable, is not physically impossible. The demurrer for its purposes admits it and the other allegations in the indictment to be true. If true, the defendants are guilty of murder, and the demurrer was properly overruled. State v. Dalton, 27 Mo. 13; State v. Blan, 69 Mo. 317; State v. Payton, 90 Mo. 220, 2 S. W. Rep. 394; Coates v. People, 72 Ill. 303; State v. Zeibart, 40 Iowa, 169; Kerr, Hom. §§ 276, 277.
In the trial, evidence was adduced tending to prove, among other facts, the following: On the 29th of March, 1892, and on the next day, about or little before sunrise, they went to the house of Neyman, and entered it, and found signs of its having been occupied the previous night. As they came out of the back door, the appellant and Neyman were discovered about 75 of 80 yards from the house, retreating to the woods. ...
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