Fox v. State

• Citation: 144 S.W. 516,102 Ark. 393
• Parties: FOX v. STATE
• Decision Date: 19 February 1912
• Court: Supreme Court of Arkansas

144 S.W. 516

102 Ark. 393

FOX v. STATE

Supreme Court of Arkansas

February 19, 1912

Appeal from Washington Circuit Court; J. S. Maples, Judge; affirmed.

Judgment affirmed.

E. G McAdams, for appellant.

1. Appellant not having been brought to trial before the end of the second term of the circuit court having jurisdiction of the offense, the cause having been continued without his consent and after he had announced ready for trial, the court should have discharged him upon his motion. The statute is in keeping with the constitutional provision that one accused of crime shall have a speedy, fair and impartial trial, and is mandatory. Kirby's Digest, § 2313; 23 Ark. 270; 65 Ark. 406.

2. The court erred in overruling the demurrer to the indictment. The most that the indictment charges is that at some time somewhere not in Washington County, appellant advised and encouraged Gus Sartin to commit the crime. Kirby's Digest, § 2227; Id. § 2228, second div. Penal statutes must be strictly construed as against the defendant, and liberally in his favor. 38 Ark. 519; 59 Ark 314; 53 Ark. 344; 40 Ark. 97-9. See also 1 Bishop, Crim. Proc. §§ 79, 81 and authorities cited in note 1, 89, 92, 93.

3. The deposition of a deceased witness, taken in a different case and upon a different issue from the one on trial in which such deposition is offered, is not admissible. 13 Ark. 676; 80 Miss. 351, 31 So. 744; 54 Tex. Crim. Rep. 475; 130 Am. St. Rep. 901; 113 S.W. 533; 121 Cal. 495; 53 P. 1098; 25 L. R. A. (N. S.) 868. Izgregg's deposition was further incompetent because the acts testified to by him occurred in another State. 17 Ark. 561.

4. The misconduct of counsel for the State, in stating in the hearing of the jury that appellant had served a term in the penitentiary in Texas, and insisting on proving that fact, when appellant's character had not been put in issue, was reversible error, notwithstanding the trial court's attempt to withdraw the same from the jury's consideration. The prejudicial effect was such that it could not have been removed, even by a scathing rebuke from the court. 77 Ark. 214; Id. 19; 71 Ark. 415; 74 Ark. 489; Id. 210; 72 Ark. 461; Id. 139; 58 Ark. 473.

5. It was error to permit private counsel, not a deputy prosecuting attorney, to conduct the trial of the case on the part of the State, instead of the prosecuting attorney elected for the district.

6. The court should have granted appellant's motion for a peremptory instruction to acquit for want of proof.

The court also erred in refusing to instruct the jury to acquit if they found from the evidence that Carrie Winkleman was dead at the time the money was taken. The burden was on the State to prove beyond a reasonable doubt that Carrie Winkleman was a "person" at the time the money was taken. 6 Words & Phrases, 5322; 25 Fed. Cas. 695-697; 41 S.E. 484-485; 130 N.C. 299; 73 S.E. 250, 251; 87 Ga. 79; 49 Kan. 1; 30 P. 108.

7. The court committed reversible error in refusing appellant's request for leave to present his motion for a new trial and to present authorities in support of same, and in overruling said motion pro forma. 13 Kan. 211, 212; 15 Kan. 563; 17 Kan. 145; 32 Kan. 163, 4 P. 143; 44 Kan. 394, 24 P. 500.

Hal L. Norwood, Attorney General, and William H. Rector, Assistant, for appellee; J. Wythe Walker, of counsel.

1. There was no error in refusing appellant's motion to be discharged. 13 Ark. 720; 65 Ark. 406.

2. The indictment was sufficient.

3. The testimony of the witness Izgregg, given at a former trial, he having died since giving the testimony, was properly admitted. 1 Enc. of Ev. 904, 910, 914, 915, 916, 918, 919; 3 Dana (Ky.) 36; 28 Tex.App. 92, 12 S.W. 493; 1 Greenleaf, Ev., (16 ed.), §§ 163, 164; 16 Cyc. 109; 36 N.H. 575.

4. Any prejudice that might have resulted from the alleged misconduct of counsel in referring to appellant's having served a term in the Texas penitentiary was entirely removed by the court's admonition. 95 Ark. 321; 84 Ark. 131; 71 Ark. 62; Id. 403; 88 Ark. 62; 72 Ark. 461.

OPINION

HART, J.

On the 26th day of August, 1909, Mrs. Carrie Winkleman was killed and robbed in the city of Fayetteville, Washington County, Arkansas. She was accustomed to carry $ 8,000 or $ 10,000 in a bustle on her person, and was robbed and killed to secure her money. The evidence tended to show that the crime was committed by Gus Sartin. The defendant was indicted for the crime of accessory before the fact to robbery. He was tried before a jury, found guilty, and his punishment assessed at three years in the State penitentiary.

The indictment (formal parts omitted) is as follows:

"The grand jury of Washington County, in the name and by the authority of the State of Arkansas, accuse N. H., alias 'Red, ' Fox, of the crime of accessory before the fact to the crime of robbery committed as follows, towit: that one Gus Sartin in the said county of Washington, in the State of Arkansas, on the 26th day of August, 1909, unlawfully, feloniously, and violently did by force and intimidation take from the person of Carrie Winkleman the sum of ten thousand dollars in money, gold, silver and paper money, current money, in the State of Arkansas, of the value of ten thousand dollars, the personal property of the said Carrie Winkleman. And the said N. H., alias 'Red,' Fox, not being present aiding, abetting and assisting, in said county of Washington in the State of Arkansas, on said 26th day of August, 1909, and before said crime of robbery was committed by said Gus Sartin, as aforesaid, unlawfully and feloniously did advise, and encourage the said Gus Martin to commit said crime of robbery, as aforesaid, against the peace and dignity of the State of Arkansas."

1. It is insisted by counsel for appellant that the court erred in not sustaining their demurrer to the indictment. They insist that the indictment only alleges that at some time and place not in Washington County, Arkansas, the defendant advised and encouraged Gus Sartin to commit the crime. While the indictment is susceptible of this meaning, it would be a strained construction to place upon it. We think that the indictment in plain terms alleges that the defendant, not being present aiding, abetting, and assisting, did, in the county of Washington in the State of Arkansas, unlawfully and feloniously advise and encourage the said Gus Sartin, etc. Therefore, the indictment alleges that he was in said county and State, and aided and encouraged the commission of the crime before it was committed.

2. It is urged by counsel for appellant that the court erred in refusing to discharge him upon his motion for the reason that he was not brought to trial before the end of the second term of the court having jurisdiction of the offense, which was held after the finding of the indictment. He bases his contention on section 2313 of Kirby's Digest. If it be conceded that the statute is mandatory, before a defendant would be entitled to his discharge for want of prosecution, he must have placed himself on record in the attitude of demanding a trial, or at least resisting a postponement. Dillard v. State, 65 Ark. 404, 46 S.W. 533; Stewart v. State, 13 Ark. 720. Here the defendant was admitted to bail, and did not either demand a trial or resist the order for a continuance. The court was correct in refusing to dismiss his case for want of prosecution.

3. The third assignment of error in defendant's motion for a new trial is that the court erred in admitting certain testimony which was alleged to be prejudicial to the rights of the defendant. Under this assignment the defendant complains of the introduction of the testimony of James Izgregg, a witness, who testified at the trial of this defendant in the Washington Circuit Court on the charge of accessory before the fact to the murder of Carrie Winkleman. It was proved at the trial that the witness had since died. The defendant agreed that, in the event the court should hold that the testimony was competent, the testimony taken by the stenographer at the previous trial should be read as his evidence, and agreed that the testimony as transcribed by the stenographer from her shorthand notes was a true and correct statement of his evidence taken upon the former trial.

It is contended by counsel for defendant that the testimony is not competent because it was taken under a different indictment and in a different case. We do not think that the objection is well taken. The record shows that the testimony was taken under an indictment charging the defendant with the offense of being accessory to the murder of Mrs. Carrie Winkleman, and the present indictment charges him with being accessory to the crime of robbery of Carrie Winkleman. The robbery and the murder were all parts of the same transaction, and were committed by the same persons at the same time for the same purposes. The identity of the issues was complete, and there can be no well founded reason why the testimony taken on the first trial should not be read as evidence on the second trial where it appears that the witness is dead. This precise question has not been passed on by the court, but in the case of Poe v. State, 95 Ark. 172, 129 S.W. 292, where all our earlier cases bearing on this question are cited, the court held: "Where an absent witness in a felony case is dead, beyond the jurisdiction of the court, or upon diligent inquiry can not be found, what such witness had previously testified upon the examining trial of the defendant may be proved at the trial of the case, provided the defendant was present at the examining trial, and had the opportunity of cross examination."

The reason given by the court in so holding was that the defendant was present and had a right and the...