Garner v. State

• Decision Date: 12 December 1910
• Citation: 132 S.W. 1010,97 Ark. 63
• Parties: GARNER v. STATE
• Court: Arkansas Supreme Court

132 S.W. 1010

97 Ark. 63

GARNER v. STATE

Supreme Court of Arkansas

December 12, 1910

Appeal from Logan Circuit Court, Southern District; Jeptha H. Evans Judge; reversed.

Case reversed and remanded.

J. H Carmichael, for appellant.

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

The admission of the confession after the case had gone to the jury was within the discretion of the trial court, and this discretion will not be interfered with unless it has been abused. 54 Ark. 124; 34 Ark. 383; 36 Ark. 629; 32 Ark. 585; Id. 562; 40 Ark. 511; 62 Ark. 365; 69 Ark. 558; 75 Ark. 325.

OPINION

KIRBY, J.

Appellant was convicted of murder in the first degree on an indictment returned on January 21, 1910, which, omitting the formal parts, is as follows:

"The grand jury of Logan County and Southern District, in the name and bye the authority of the State of Arkansas, accuse Will Garner of the crime of murder in the first degree, committed as follows: The said Will Garner, on the 15th day of October, 1909, in the county and district aforesaid, unlawfully, wilfully, feloniously, of his malice aforethought and with premeditation, did kill and murder one Floyd Springer by striking and beating him, the said Floyd Springer, in and upon the head and body of him, the said Floyd Springer, with a club then and there held in the hand of him, the said Will Garner, from the effect of which wound he, the said Floyd Springer, then and there immediately died, against the peace and dignity of the State of Arkansas."

The evidence in this case is voluminous and mostly circumstantial. The scene of the tragedy was a field belonging to Mr. Roberts, in Logan County, hard by a much-traveled public road and near the wire gate opening from the field into the road. Floyd Springer, the deceased, Will Garner, the appellant, and O. P. Hamm were at work in the field on the day of the killing. Appellant went to the house for dinner for the deceased, and was seen returning between 12 and 1 o'clock, and rode into the field and about thirty yards from the gate, reached down and handed him a bucket containing the dinner. About 1 o'clock a witness saw the deceased and appellant near the gate, and no one else was there, and the horses appeared to be done eating. Mr. Hamm, who went from the field to his dinner, returned about 1 o'clock, and found appellant at the gate sitting by the horses that Springer had been plowing, which were still eating, and asked where Springer was. Appellant said he was gone off with two men to look at some land and told him to watch his team. Witness told him to take this team and go on to work, that it was after 1 o'clock.

About 3 o'clock Mr. Roberts returned and drove out into the field, and when Mr. Hamm came out to the end of the row and waited till appellant drove out too, and asked him where Springer was, he said, "The last time I saw him he was standing over yonder" in a southwesterly direction from us. Mr. Roberts went down that way, and found Springer dead. His skull was crushed in on both sides, his breast considerably bruised, and some marks or little cuts on his throat and neck, all appearing to have been done with a stick or club, the little cuts with the end of it. He was lying on his back with his head on a rail, his hands across his breast, and his feet stretched out toward the west side by side. There were no signs of a struggle, and the blood ran down on the back of the head and neck--was scattered around in every direction from the body. A club or stick with fresh blood on it was found about fifty yards from the body in an old clay root. There was a bottle of morphine found on the body, but no money, and near it a paid note of Springer's to Levi Green, who saw him tear off his signature and put it in his purse a day or two before when he paid it. The body was lying in behind a briar thicket and tree top, from where they were plowing, which was the only place nearby which would hide a man from view from the public road.

Will Garner, appellant, testified: I am 13 years old; will be 14 the 6th day of May; was born in 1896, at Memphis, Tenn.; left Memphis when I was about 4 years old. I came down here from Shawnee to work in the barber shop. I first met Mr. Roberts at the courthouse. He was appointed to defend me here at the last term of court. After that I went and stayed at his house for about two months; was there when Mr. Springer began to work for him on Monday. Mr. Hamm was working with us. I brushed in oats that morning. I left before the rest of them to get Mr. Springer's dinner. I don't recollect whether I met any one going from the field to the house or not. I took the dinner back to the field. When I got back to the field Mr. Springer was sitting down by the gate with two men, whom I did not know. He ate dinner, and I shucked corn for the horses. The men got up and looked around while he was eating dinner, and he got up and walked off with them. He told me to watch the horses. They went around the branch, and turned the road. I don't know how far they went. Finally they came back, and Mr. Springer went with them. I did not see him any more until I don't know just how many minutes. Any way I laid down by a tree, and the horses went around the bend, and I saw Mr. Springer and the two men standing by them two racks of wood as I went to get the horses. I came back, and saw Mr. Hamm coming, and the men passed there with a bale of cotton and another man. I did not see Mr. Hamm walking back about this time. I did not see Mr. Springer any more until Mr. Roberts came down there and found him dead. At that time I was plowing. Mr. Hamm asked me where Mr. Springer was, and I told him, and he told me to take his team and come on and plow with it, and I did so. When Mr. Roberts came, I told him that Mr. Springer had gone off with the two men. I did not go to the body until Mr. Roberts called me and Mr. Hamm. Then I went with Mr. Hamm. I did not know he was dead until Mr. Roberts called me. Mr. Roberts told Mr. Hamm and I to stay there until he went to town, and we did so; never done anything but stayed there until 4 or 5 o'clock, and then I took the team out and carried them to the house. I heard Mr. Jones and Mr. McConnell say that that little negro was as liable to do it as any body."

The other circumstances tending to connect appellant with the killing were a speck of blood spattered on his cheek and a few specks on one pants' leg and perhaps a drop on his shoe and six half dollars that were found concealed in his shoe the next morning. Springer was shown to have been paid five dollars in half dollars a few days before the killing, and to have had some silver in his purse when he put the paid note in it after tearing off his signature. Mr. Hamm saw appellant tying his shoe when he put him to work after 1 o'clock, and another witness saw him about 2 o'clock "sitting over on his plow or by it working with his shoe some way," the day of the killing. Appellant made contradictory statements about how he came by the money, and was contradicted by people from whom he claimed he got it.

The court instructed the jury orally and fully on murder in the first degree, without objections or exceptions, after giving first the following instruction:

"1. If the accused is between the ages of 12 and 14, the presumption is that he is incapable of crime, and the burden is on the State to prove that he has mental capacity enough to know right from wrong in relation to the offense charged. This may be done by circumstantial evidence, as well as by direct evidence. If over 14 years of age, defendant is presumed to be capable of committing crime. The age and capacity of defendant to commit crime is for the jury to determine. If defendant is answerable to the law, then the law of the case is as follows:" etc.

The judge wrote in the bill of exceptions: "The defendant from appearance might be judged to be from 17 to 18 years old at time of trial, and jury might so have found."

The bill of exceptions recites further: After the jury had been out deliberating, they came in and asked the judge if they could convict the appellant of murder in the first degree, and give him a life sentence. The court told them that they could not do this, but that they might convict of murder in the second degree, and fix the punishment in the penitentiary not to exceed twenty-one years.

"Shortly afterwards the court, while the jury was out deliberating was at recess, and Governor Donaghey was speaking in the court room, and the jury-bailiff informed...