Freels v. State

• Decision Date: 02 July 1917
• Docket Number: 78
• Citation: 196 S.W. 913,130 Ark. 189
• Parties: FREELS v. STATE
• Court: Arkansas Supreme Court

196 S.W. 913

130 Ark. 189

FREELS v. STATE

No. 78

Supreme Court of Arkansas

July 2, 1917

Appeal from Mississippi Circuit Court, Osceola District; W. J Driver, Judge; affirmed.

Judgment affirmed.

Rice Pearce of Tennessee and S. L. Gladish, for appellant.

1. Appellant did not get a fair and impartial trial. Any misconduct of the jury presumptively vitiates the verdict. The jury were permitted to ramble around in Violet Cemetery and look at the freshly-made grave of the deceased, etc. Mrs Sullinger also sat by the side of the State's attorney during the trial.

During the argument of counsel for the State, admonished the jury to go to Violet Cemetery and look upon the freshly-made grave of Edrington and think of his last words, "He shot me while I was begging him not to and I had my hands to my face." No one can know what influence this improper conduct and remarks had with the jury. 109 Ark. 193; 12 Am. & E. Ann Cas. 176; 129 Ga. 425.

2. The court improperly admitted dying declarations. 125 Ark. 209; 1 R. C. L. 537-9; 90 S.W. 311; 24 Id. 229; 23 So. 77; 11 Coxler C. 250; 1 R. C. L. 545; 12 A. 701; 36 S.E. 434; 46 S.W. 127; 12 Bush, 271. The statements or declaration were not made when deceased realized that death was certain and imminent.

John D. Arbuckle, Attorney General, and T. W. Campbell, Assistant, for appellee.

1. The affidavits of the three jurors were not admissible and can not be considered to impeach the verdict. Kirby's Digest, § 2423; 109 Ark. 193; 191 S.W. 226; Turner v. State, ms., June 18, 1917. The other affidavit shows no merit in appellant's contention that the incident vitiates the conviction. 12 Cyc. 669, b; 5 N.D. 516, 564; 126 N.C. 1095; 74 Mo. 292; 65 N.H. 221; 96 Iowa 188; 42 A.D. 392; 109 Ark. 149. Nobody was guilty of any culpable conduct. The whole matter was within the sound discretion of the court below. 26 Ark. 334; 28 Id. 155; 40 Id. 454; 29 Id. 248; 104 Id. 212; 84 Id. 572; 65 N.H. 221.

2. The dying declarations were properly admitted. Deceased was conscious of impending death. 2 Ark. 229; 58 Id. 47; 1 R. C. L., § 81; McKelvey on Ev., § 186; 127 Mass. 455; 121 Mo. 434; 89 Va. 171.

OPINION

WOOD, J.

Appellant was convicted of murder in the second degree under an indictment in proper form charging him with murder in the first degree, in the killing of one James Edrington.

The testimony on the part of the State tended to show that three men, one Ferguson, James Edrington and one George, had been playing at a game of dice. The men were drinking and Freels was drunk. They got into what is termed in the evidence as a "friendly drunken row." The men at the time were on a place occupied by Freels, and not far from Freels' house.

George testified that Freels had a bottle of whiskey and passed his bottle often. Edrington gave Freels $ 2 for the bottle of whiskey, just to keep it, not to buy it. Freels decided he wanted the whiskey back; so he pushed Edrington over and got hold of it. They had a scuffle. Edrington was laughing at the time. Freels seemed to be a little "sore." Edrington told Freels that he was a good friend of his, but wanted him to let him alone about the whiskey. Edrington hit him in the face, not very hard. Freels got up and came towards Edrington. Edrington shoved him back the second time and told him to behave himself, and hit him rather hard. Freels started down the road. Edrington overtook him, caught him by the arm, and Freels jerked loose from him. Freels went to his home and came back. Witness then tells about a controversy between himself and Freels, and continues: "About this time Jim Edrington was driving down the road in a buggy, and told Freels not to shoot him, and drove on down until he got within about twenty steps of him; then Freels leveled the gun on Edrington, Edrington threw his hands over his face, telling Freels not to shoot him, but kept going towards Freels, and when he got within twelve feet Freels fired."

Another witness testified that at the time the shooting occurred Edrington was not making any demonstration whatever. "When Freels shot Edrington had his hands over his face, laying over in the buggy; the top of the buggy was down."

The above sets out enough of the testimony to show the circumstances of the encounter from the viewpoint of the State.

It was contended on the part of the appellant (and testimony was adduced by him tending to prove) that no row occurred between Edrington and Freels; that Freels, Edrington and George, who were in a buggy going to Freels' place, got out of the buggy when they arrived at a certain point on Freels' place for the purpose of engaging in a game of dice; that no row occurred between Edrington and Freels, but that Freels went to sleep soon after they got out of the buggy, because he was so drunk, and that when he woke he went to the house after his gun at the suggestion of Jim George for the purpose of joining one Pittman in a hunt on the following Sunday; that George had taken some money from Freels while he was asleep; that Edrington followed Freels for a distance and told him that George had taken his money, and told Freels to make George give it to him. Freels returned with his gun and demanded of George that he give him the $ 25 that he had taken from him while he was asleep. George pulled out the money to give it to Freels, but instead of giving it to him he grabbed the gun and in the scuffle that took place over the gun the same was accidentally discharged and inflicted the wound in James Edrington's arm and shoulder.

Edrington was taken to a hospital in Memphis. Two physicians and surgeons attended him. He lingered for thirty-nine days and finally died. One of the surgeons who attended him at Memphis testified that the cause of his death "was septicemia following the gunshot wound." This surgeon testified that the wound began about three and a half inches down from the shoulder and ranged upward through the shoulder. Witness didn't think it would have been in favor of the deceased to have cut his arm off at the shoulder.

A physician and surgeon introduced on the part of appellant testified, in answer to a hypothetical question setting forth the nature and condition of Edrington's injury, that the only treatment that should have been given and the operation that should have been made was to have taken the arm off at the shoulder and to have removed all foreign matter; that the fact that he lived so long would have been in his favor, and that he more than likely would have recovered had his arm been amputated. The lacerated flesh and foreign matter would have a tendency to bring about and set up septicemia. The witness, on cross-examination, testified that the doctors who treated Edrington in Memphis stood high as physicians.

The physician who administered first aid to Edrington on the ground after he was shot, testified that it was understood that they would take Edrington to Memphis. He administered a hypodermic to overcome the shock. It would probably last three hours, and was given him about thirty minutes before they started to Memphis. It would have a quieting effect on the patient. Edrington didn't think he would get well. Said Freels shot him, and shot him for nothing. He was under the influence of liquor at the time he made this statement, and it was such that those present would recognize it. The influence of the liquor lasted him until he got to Memphis.

A witness by the name of Goodman testified that Edrington made statements to the witness about dying; never did say anything except that he was going to die. When witness had this talk with him he was conscious. He told the witness that when witness met him at the train when he arrived at Memphis, and also the next morning when he was operated on. Witness tried to talk him out of it, but he insisted that he was going to die. Said the man shot him for nothing, and he asked him not to, and begged him not to shoot. Edrington never changed his statement, but repeated it. Witness did not know whether they gave him opiates or anaesthetics, and didn't know whether he was under the influence of those things at the time he made the statements or not. He talked rational to witness for ten days. After ten days his mind became flighty; didn't seem to be anything wrong with his mind the first ten days.

S.E. Edrington, the father of deceased, testified that he saw his son before he was taken to Memphis on the afternoon that he was shot, and went to see him at the hospital several days after the shooting, and talked to him about the result of his wound, and he said he was going to die; didn't express any hope of getting well at all. Said he was worse than they thought he was. Said Freels shot him for nothing; that when he saw he was going to shoot him he fell over in the buggy and threw his hands up to keep Freels from shooting him in the face. It was about two or three days after the shooting before witness had the conversation with Edrington in the hospital at Memphis. He never said he could get well. Witness was asked who brought the conversation up and answered as follows: "I talked to him this way: 'Was getting a lot better; going to get well; getting along all right.' He said, 'No, Papa, I can't get well. I will never get well.' That was possibly two or three days after the shooting."

The jury took the case under deliberation about 9:30 o'clock Wednesday evening. They considered of their verdict until about 12 or 12:30 o'clock that night, when they retired. On Thursday morning the jury was permitted to go through Violet Cemetery, at the town of Osceola, where deceased was buried. As they walked through Violet Cemetery, they saw one Mrs. Chas. E. Sullinger, a relative of the deceased, sitting on the curbing around the lot where...