Ford v. State

• Decision Date: 06 March 1911
• Citation: 135 S.W. 821,98 Ark. 139
• Parties: FORD v. STATE
• Court: Arkansas Supreme Court

135 S.W. 821

98 Ark. 139

FORD v. STATE

Supreme Court of Arkansas

March 6, 1911

Appeal from Sevier Circuit Court; Jeff T. Cowling, Judge; reversed.

STATEMENT BY THE COURT.

John R Ford and Lelia Ford were indicted for the crime of murder in the first degree, charged to have been committed by killing W. F. Nichols. The views we shall hereinafter express render it unnecessary to make a detailed statement of the facts and circumstances attending the killing. It is sufficient to state that John R. Ford and Lelia Ford are husband, and wife and were at the time of the killing. They were tenants of W F. Nichols, and lived on his farm near Lockesburg in Sevier County, Arkansas. The testimony on the part of the State shows that for some time prior to the killing there existed ill feeling on the part of the defendants toward the deceased; that the killing occurred soon after dark on September 30, 1910, near the house where the Fords lived. The Fords came out of their house, and began to quarrel with Nichols about letting down the fence and driving through one of his fields, which they had rented. The killing was done by J. R. Ford cutting or stabbing Nichols with a barlow knife.

The defendant filed a motion for a change of venue, which was overruled by the court. The trial resulted in a verdict of guilty, and the defendants were sentenced to death. They have duly prosecuted an appeal to this court.

Judgment reversed and cause remanded.

Spriggs & Hardison (of Oklahoma), for appellant.

1. It was error to refuse a change of venue. Kirby's Dig § 2317; 54 Ark. 243; 25 Id. 444. The supporting affidavits were sufficient. Kirby's Digest, § 2318. 36 Ark. 286 and 54 Ark. 245 do not apply in this cause.

2. The evidence does not show murder. Kirby's Digest, § 1761; 37 Ark 238; 40 Id. 511. Premeditation must be shown. 36 Ark. 127.

3. Instruction No. 19 is not the law. 29 Ark. 248.

4. If one assails another with insulting words and blows and without the use of a weapon, and the assailed, without attempting to evade the fight, kills with a deadly weapon, he is only guilty of manslaughter. 16 Ark. 568.

Hal L. Norwood, Attorney General, and Wm. H. Rector, Assistant, for appellee.

1. The motion for change of venue was properly overruled. (1) It does not appear that the statute was complied with relative to giving notice to the State's attorney and (2) an examination shows the supporting witnesses swore recklessly and without real knowledge of the facts. Kirby's Digest, § 2318; 76 Ark. 206; 85 Ark. 518; 83 Id. 336; 80 Id. 360; 76 Id. 276; 86 Id. 357; 91 Id. 65; 1 Wigmore on Ev. §§ 105, 108.

2. The instructions were correct.

3. No error in refusal to grant new trial on account of affidavits of Glevis and Blackstock. 72 Ark. 158.

OPINION

HART, J., (after stating the facts).

The counsel for the defendants first assign as error the action of the court in overruling their motion for a change of venue. They petitioned for a change of venue on the ground that the minds of the inhabitants of Sevier County were so prejudiced against them that they could not obtain a fair and impartial trial therein.

The petition was supported by the affidavits of six persons. The court examined the affiants orally to test their credibility. This it had a right to do to ascertain whether they had sworn falsely or recklessly without sufficient information as to the state of mind of the inhabitants of the county as to the defendants. In such cases the order of the court overruling the motion for a change of venue is conclusive on appeal unless it appears that the court abused its discretion. Bryant v. State, 95 Ark. 239, 129 S.W. 295, and cases cited; White v. State, 83 Ark. 36, 102 S.W. 715; Duckworth v. State, 80 Ark. 360, 97 S.W. 280.

There are numerous decisions of this court upon this question, all of which are cited in the case of Bryant v. State, and the rule announced above is recognized in each of them. The proper application of the rule, however, depends upon the particular facts of each case. Where the examination of the affiants shows that their affidavits were based upon expressions of opinion by people in only one or two localities, or only in a few places in the county, as in the White and Duckworth cases, supra, and the trial court denies the motion for a change of venue, this court has held that there was no abuse of discretion. In the case at bar, however, the facts are essentially different. H. H. Darnell, one of the affiants, testified that he had lived in Sevier County for 11 years, and had lived in De Queen, the county seat, since the time of the killing; that he had peddled all over the county, and was acquainted with people all over the county; that he had heard expressions from parties from De Queen, Lockesburg, Brownstown, Ben Lomond, and various other places; and that from these expressions he did not believe the defendants could obtain a fair and impartial trial.

H. H Hunter in his affidavit swore that he had heard the case discussed by citizens from different portions of Sevier County, and from what he had heard in said discussions the defendants...