Fisher v. State, 5220

• Decision Date: 05 December 1966
• Docket Number: No. 5220,5220
• Citation: 408 S.W.2d 894,241 Ark. 545
• Parties: Deola FISHER, Sr., Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 894

408 S.W.2d 894

241 Ark. 545

Deola FISHER, Sr., Appellant, v. STATE of Arkansas, Appellee.

No. 5220.

Supreme Court of Arkansas.

Dec. 5, 1966.

Hall, Purcell, Boswell & Tucker, Benton, for appellant.

Bruce Bennett, Atty. Gen., H. Clay Robinson, Asst. Atty. Gen., Little Rock, for appellee.

WARD, Justice.

Appellant, Deola Fisher, Sr. was charged and tried for murder in the first degree for the killing of Peter Collier by shooting him with a pistol. The jury returned a verdict of murder in the second degree and fixed the punishment at fifteen years in the penitentiary.

Collier was shot about seven p.m. while he was standing in front of a cafe in Benton. Nearby witnesses saw the shooting. Collier was rushed to a hospital where he later died. Appellant makes no contention here that there is any insufficiency of evidence of sustain the conviction for murder in the second degree.

On appeal, appellant argues fourteen separate points for a reversal, however, we find that all issues raised can be more conveniently and just as adequately treated under the eight subdivisions hereafter discussed.

One. We find no reversible error in the trial court's failure to continue the trial. Appellant was charged on November 5, 1965, and the trial was set for December 7, 1965. On Motion of appellant the case was continued until January 3, 1966, but on December 27, 1965 appellant asked for a continuance until March 29, 1966 (the beginning of the next term of court). This request was denied, but the court did grant a continuance until February 14.

The granting of a continuance is largely in the discretion of the trial court, as we have frequently held. We are unable to say the court abused its discretion in this instance. The only specific cause urged by appellant for a continuance was 'that one eye witness, Robert Higgs, who was probably closer to the scene of the encounter than anyone else was absent * * *.' although he had been subpoenaed. However, no showing is made as to what the absent witness' testimony would have been or whether it would be corroborative, as is required under our decisions. Gallaher v. State, 78 Ark. 299, 95 S.W. 463 and Caldwell v. State, 214 Ark. 287, 215 S.W.2d 518. The record here discloses that the absent witness was only one of several who saw the shooting.

Two. During the trial appellant, on six separate occasions, asked for a mistrial, and each time the request was denied by the court. These are alleged to constitute reversible error, but we do not agree.

(a) At the beginning of the trial and in preparing to select the jurors, the judge asked the members of the special panel if there was any reason why they could not serve. He then said it would be to their benefit to serve because they would be excused from jury service for the next two years. It appears the judge was in error in the last statement, but even so we see no possible prejudice resulting to appellant, and none is pointed out by appellant.

(b) On voir dire examination of the jurors the court stated that both the deceased and appellant were members of the Negro race, and then the prospective jurors were asked if they knew of any reason why they could not give the defendant a fair trial. Their answer was in the negative. It appears to us that this information would tend to help and not to hurt appellant because the jury was certain to know he was of the Negro race.

(c) The Prosecuting Attorney asked one of his witnesses a question, and the answer received was a 'surprise'. Then the witness was asked: 'Do you remember telling me anything different from that, John'? The District Attorney then stated: 'Your Honor, I am surprised. This witness has made a different statement to me', but the trial court refused to allow the matter to proceed further. In the first place, since the witness appeared hostile, we think it would have been proper to allow further questioning. Ray v. State, 102 Ark. 588, 145 S.W. 190, and Shands v. State, 118 Ark. 460, 177 S.W. 18. Also, we think the matter tended to help rather than hurt appellant.

(d) During the closing argument of the State's Attorney he mentioned the fact that never before in that county had a member of the Negro race, upon conviction, received a life sentence. At that instant appellant moved for a mistrial, which was refused, and the court was not asked to admonish the jury. It is well settled by many decisions of this Court that the trial judge is vested with wide discretion in determining the propriety of counsel's remarks to the jury. Greene v. State, 38 Ark. 304; Lemuels v. State, 113 Ark. 598, 166 S.W. 741; Head v. State, 221 Ark. 213, 252 S.W.2d 617. Moreover, the verdict shows the jury was not persuaded by the remarks.

We have examined other contentions by appellant that a mistrial should have been granted, but find no reversible error in any of them.

Three. Appellant challenged two jurors for cause, but was refused by the trial court. The only basis for the challenge was that these jurors were employed at the same place where the deceased was employed. It is admitted by appellant that no actual prejudice was shown, and we think none was indicated.

Four. In preparing its case the State took a statement from one of its witnesses whose name was on the information. Appellant requested the trial court to compel the State to turn the statement over to him. The court refused the request, and we think properly so. In the case of Edens v. State, 235 Ark. 178, 359 S.W.2d 432, this same issue arose and we said:

'* * * The defendant was not entitled to receive copies of the statements that the Prosecuting Attorney had obtained...