Gibson v. State

• Decision Date: 23 September 1918
• Docket Number: 129
• Citation: 205 S.W. 898,135 Ark. 520
• Parties: GIBSON v. STATE
• Court: Arkansas Supreme Court

205 S.W. 898

135 Ark. 520

GIBSON v. STATE

No. 129

Supreme Court of Arkansas

September 23, 1918

Appeal from Greene Circuit Court, Second Division; W. J. Driver Judge; affirmed.

Judgment affirmed.

W. W Bandy and Huddleston, Fuhr & Futrell, for appellant.

1. The indictment is defective as it does not allege that the pistol was loaded with gunpowder and balls. 2 Bishop New Cr. Proc § 514 (2); Bishop Div. and Forms (2 Ed.) 520 and notes.

2. Incompetent jurors were accepted. 79 Ark. 127.

3. The court erred in excluding testimony of B. R. Hopkins. 3 Wigmore on Ev. § 1730.

4. The court erred in refusing instruction No. 1 on the theory of self-defense. 86 Ark. 30; 73 Id. 126; 19 A. & E. Cases 118; 70 Kan. 241; 10 Enc. Pl. & Pr. 173; 40 N.E. 525; 46 S.W. 491; 107 Id. 739; 1 Bishop Cr. Proc. (3 Ed.) § 980, etc.

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

1. The indictment is sufficient. Kirby's Digest, §§ 2229, 2242-3.

2. There was no error in accepting jurors. The challenged jurors were competent. 114 Ark. 472; 109 Id. 450; 103 Id. 21; 66 Id. 53.

3. There was no error in excluding testimony of B. R. Hopkins.

4. Defendant's requested instruction on self-defense was properly refused. Appellant denied the killing outright. He provoked the difficulty and made no attempt to withdraw or avoid the necessity of the killing. 16 Ark. 568; 69 Id. 558; 104 Id. 397; 95 Id. 428; 77 Id. 141; 93 Id. 409; 99 Id. 576; 77 Id. 97.

OPINION

SMITH, J.

On Christmas day, 1917, about seven o'clock P. M., John Wise, the constable of Clarke Township, in Greene County, was shot and instantly killed in the Main Hotel in the City of Paragould, Arkansas. No one was present at the killing except John Wise, Croft Morris and E. T. Gibson, who was the owner of the hotel. Gibson was indicted at the May, 1918, term of the Greene Circuit Court for murder in the first degree, and at his trial was convicted of murder in the second degree and his punishment fixed at twenty-one years in the penitentiary, and he has prosecuted this appeal to reverse that judgment.

A demurrer was filed to the indictment on the ground that the "indictment does not allege with what the pistol was loaded, nor does it allege in fact that the pistol was loaded."

The allegation of the indictment was that Gibson had killed Wise by "shooting him, the said John Wise, with a dangerous weapon, to wit, a pistol, then and there had and held in the hands of him, the said Tom Gibson, with the felonious intent," etc.

The motion for a new trial assigned as error the action of the court in holding four members of the special venire competent to serve as jurors, thereby compelling appellant to exhaust his peremptory challenges. The ground of this objection is the same as to each of these jurors. They had each read the newspaper account of the killing written by one Griffin Smith, with whom the veniremen were acquainted, and who testified as a witness at the trial, and it is insisted that under the showing made, Smith's story as it appeared in the paper was not mere rumor, but had the weight and verity of a personal conversation with the witness. These veniremen admitted that they had formed opinions about the case, although they stated that they could and would disregard them if accepted as jurors and would return a verdict based alone upon the evidence heard at the trial.

Error was assigned in the refusal of the court to permit B. R. Hopkins to detail a conversation between Wise and Gibson on the morning of the killing, the purpose of the excluded testimony being to show the friendly feeling then existing between the men. The action of the court in refusing to give a requested instruction on the law of self-defense is also assigned as error.

We will discuss these assignments of error in the order stated.

The indictment was not drawn with the usual technical accuracy. But it is not defective. Our statute provides: "The words used in an indictment must be construed according to their usual acceptation in common language, except words and phrases defined by law, which are to be construed according to their legal meaning." Kirby's Digest, sec. 2242. And when the language of this indictment is so construed, no room for doubt is left that the pistol then and there had and held in the hands of him, the said Tom Gibson, was loaded as pistols are ordinarily loaded.

Shortly after the killing occurred, Smith, in company with certain officers, went to the jail, where Gibson and Croft Morris had been carried, and there undertook to interview both of those men in regard to the killing, for the purpose of writing an account of it to be published in his newspaper.

Wise, Gibson and Morris had spent a considerable portion of Christmas day together, during which time they had regaled themselves by drinking whiskey and playing poker. Morris accused Gibson of firing the fatal shot, and has since persisted in that statement. According to the story written by Smith and published in the paper, Gibson denied firing the shot and stated that Morris had done so, but later, during the same interview, Gibson contradicted that statement, and finally stated that he would not talk further about the case. Smith did not write the article on the night of his interview but on the following day, and it was then written in narrative form from memory.

It is earnestly insisted that the statements made by the veniremen on their examination touching their qualification as jurors from which the facts above recited were elicited brings this case within the rule announced by this court in the case of Sullins v. State, 79 Ark. 127, 95 S.W. 159, on the subject of competency of jurors. In that case the juror testified that he had not talked with any of the witnesses in the case, but had formed his opinion from reading a report of the homicide in a newspaper written by his brother-in-law, who was also a witness for the State. The juror stated that he had confidence in his brother-in-law and relied on his statement in the paper and had formed his opinion from this statement. In holding this juror incompetent, Judge RIDDICK, speaking for the court, said:

"Ordinarily, opinions formed from newspaper reports do not disqualify, but when the author of the report is known to the juror as a witness in the case, and is a person in whom he has confidence, then an opinion formed from reading his statement disqualifies, just as an opinion formed from talking with such witness would disqualify. In other words, if an opinion formed from talking with one known to be a witness disqualifies, then an opinion formed from reading a written report of the facts of the homicide made by one known to be a witness and in whom the juror has confidence must also disqualify, because in each case the juror knows that the statement on which he bases his opinion is not a mere rumor but a statement of the facts by a witness."

In the instant case, however, no attempt was made to show any special intimacy or friendship between Smith and any of the veniremen, and while the veniremen had formed opinions based upon the newspaper story, they stated that they regarded the article which they had read just as they would any other newspaper article which might or might not be true, and their testimony, taken as a whole, warranted the finding which the trial judge evidently made that the jurors did not regard the newspaper article as a narrative of one who had personal knowledge of the facts there recited. Indeed, it is not now contended that such is the case, for Smith was not present at the killing and knew nothing about it except what he had been told. It is true he had heard Gibson himself discuss the killing and make statements in regard to the circumstances of its commission, and he subsequently detailed these statements at the trial before the jury, but this evidence was of value chiefly as tending to refute the defendant's explanation of the killing.

We recognize the fact that the record presents an exceedingly close question as to the competency of these jurors. But our statute wisely...