Green v. State

• Citation: 223 Ark. 761,270 S.W.2d 895
• Decision Date: 07 June 1954
• Docket Number: No. 4764,4764
• Parties: GREEN v. STATE.
• Court: Supreme Court of Arkansas

Page 895

270 S.W.2d 895

223 Ark. 761

GREEN v. STATE.

No. 4764.

Supreme Court of Arkansas.

June 7, 1954.

Rehearing Denied Oct. 4, 1954.

Jim Merritt, McGehee, Claude M. Cruce, Wilmar, for appellant.

Tom Gentry, Atty. Gen., Thorp Thomas, Asst. Atty. Gen., for appellee.

GRIFFIN SMITH, Chief Justice.

The defendant, who has appealed to this court, was convicted of grand larceny for the theft of a cow, the property of Annie Lyles. He was sentenced to serve four years in prison. This is a second appeal involving proceedings under an information filed in 1952. See Green v. State, Ark., 258 S.W.2d 56.

Thirteen assignments urged as errors are set out in appellant's motion for a new trial. The first three are those alleging that the verdict was contrary to the law, the evidence, and the law and the evidence. A supplement motion alleged (a) that while one of the attorneys for the defendant was arguing the case and referring to testimony given by Sheriff Towler, the sheriff, who was in a position to be seen by jurors, 'made a gesture with his right hand and a finger across his throat, indicating that he was being injured [by the attorney's argument] and [these gestures were particularly directed to the three colored jurors who were seated on the front left side of the jury box a few feet from the officer]. It was noted that [these three jurors] nodded their heads as if to accept the gesture made by the sheriff'.

The succeeding supplemental assignment (b) charged that Homer Matthews, a colored juror, had said that he had heard the sheriff discuss certain phases of the case, and during this conversation the sheriff had asserted he was going to send Green to the penitentiary, or kill him.

The third supplemental assignment was that during the day preceding trial the judge announced that he wanted three of four Negroes for jury service, and directed or suggested that their names be placed near the top of the list. The regular panel, according to appellant's motion, did not contain any Negroes, 'so the special panel was opened and contained nine [of that race]'. Then, according to appellant's contentions, the problem was '* * * as to which among the nine should be placed on the panel for trial of the action'.

The sheriff, it is charged, walked to the clerk who had the list, and '[without] speaking to any one in particular * * * stated that the first five should be chosen'. A further contention is that the clerk replied, in effect, 'I don't know about that', and did not attempt to make a selection. Then, says the motion, the sheriff walked to the dais, held a short conversation with Judge Golden, and the Judge told the clerk to take the first five, and this was done. The final complaint under this heading is that '* * * as to qualifications and standing in the community, the four that were omitted from the list did not compare with the five that were selected'--information well known to the sheriff.

We first dispose of matters raised in the supplemental motion, and to sufficiency of the evidence. As to the latter, substantial testimony was given tending to show that the cow had been stolen from Annie Lyles and that the defendant was feloniously implicated, hence a jury question was presented.

It is not shown that the defendant was in any manner injured by the sequence in which the Negro jurors were selected, and we fail to see wherein the court abused its discretion. There was no timely objection--no suggestion that the arrangement was unsatisfactory.

Whether the sheriff made gestures, to which there were inferential responses by the Negro jurors referred to by appellant, is not shown by any evidence. It is true that in the supplemental motion counsel for Green stated that he 'offers to prove the allegations' or conclusions, but the only record reference to the supplemental motion appears to be a docket entry and nothing in it shows that the court refused to consider any pertinent matters. We have held that docket entries are not evidence. In City of Monticello v. Kimbro, 206 Ark. 503, 176 S.W.2d 152, cases sustaining this rule were cited, including Baker v. Martin, 95 Ark. 62, 128 S.W. 579. In the Baker case Chief Justice McCulloch said that recitals in the bill of exceptions cannot be looked to in order to ascertain whether the motion for a new trial had been preesnted to and overruled by the court, [for] 'an order overruling a motion for a new trial is one which should appear on the records of the court'. See per curiam orders of Oct. 22, 1945, and Oct. 4, 1948--Hazelip v. Taylor, No. 7723, and Woods v. Pankey, No. 8655.

But irrespective of the procedural rule excluding docket entries as substitutes for court orders, we would reject the assignment as a mere conclusion of the movant.

The next assignment relates to the court's rejection of a juror for cause. When Wiley Baker's name was called he stated, in response to a court question, that he had served during the last court term. Judge Golden seriously doubted Baker's eligibility, in view of the limitations fixed by Act 205 of 1951, Ark.Stats. Supplement, § 39-225. Baker was accepted by each side, but was later excused by the court through fear the ineligibility might be assigned as error. Assuming, without deciding, that the disqualification could be waived, appellant has failed to show that he was prejudiced by the ruling. Insistence is that when the juror was removed the defendant had exhausted his challenges. He does not, however, show that the person accepted in lieu of Baker was objectionable, or that the court on request would not have excused a questioned substitute under a rule of fairness if the person objected to could with reason be regarded as unfit, or favorable to the state's view of the transaction.

We have often said that a litigant is not entitled to a particular juror. Rose v. State, 178 Ark. 980, 13 S.W.2d 25.

Inadmissibility of statements made by the witness Brown Calhoun is strongly urged. Calhoun operates the Drew County Auction Sale, where livestock is dealt with. He testified that Raymond Donaldson had been buying and selling cattle. The prosecuting attorney asked Calhoun whether, about June 26, 1952, he had bought a red heifer (with white face) from Raymond Donaldson. Calhoun's reply was that he didn't buy the animal, [but] 'I gave him his money back and held the heifer to see if I could find the owner'.

Donaldson, said Calhoun, came to the sales lot during the morning bringing some calves, including the one alleged to have been stolen. Donaldson commented that he wanted to sell that calf. Calhoun got on the truck, made his inspection, and (in his testimony) said that he remarked that the calf was too gaunt. He also asked Donaldson where he got it. When Calhoun was about to testify what Donaldson told him the questioning was interrupted by an objection that the answer would be hearsay, and the objection was sustained. The court's remarks were: 'You can't tell what Donaldson told you, [but] you can tell what he did'.

After being told a second time that it was not permissible to repeat anything that Donaldson had said, the witness replied, 'Well, I told Donaldson the calf was 'hot". When an objection was offered to this statement the court ruled: 'This is not hearsay. It is not what Raymond Donaldson said. He is saying what he told Raymond'. The final objection was that Calhoun's remarks to Donaldson were made in the defendant's absence; that Calhoun was merely assuming that the calf was 'hot', and that the testimony was irrelevant, incompetent, and immaterial. When the court again held that the witness could repeat what he, himself, had said, the objection was renewed, with exceptions when the court reasserted Calhoun's right to tell what his statements had been.

While it is the better practice not to permit a witness to relay his own conversations, the objection does not come within the hearsay rule.

Hearsay is defined as evidence which derives its value in part or in whole from the veracity and competency of some person other than the one who is testifying. It has been held that where it becomes relevant to show that certain statements or declarations were made, such testimony is not hearsay and should be admitted. It is evidence of what is sometimes spoken of as verbal facts. State v. Corbin, 117 W.Va. 241, 186 S.E. 179. In Spivey v. Platon, 29 Ark. 603, it was said that where a witness testifies to a fact without disclosing the source of his knowledge, such testimony will not be excluded on the presumption that it is hearsay; but the court [or jury] will attach less weight to it than would be the case if the means of information were made to appear, with a showing that the factual matter came from personal knowledge of the witness.

Even if the testimony should fall within the hearsay rule, its admission may be rendered proper by the difficulty of obtaining other proof, and because of the peculiar circumstances under which the declarations were made. St. Louis, I. M. & S. R. Co. v. Gibson, 113 Ark. 417, 168 S.W. 1129.

In Motors Insurance Corp. v. Lopez, 217 Ark. 203, 229 S.W.2d 228, 230, the plaintiff procured a judgment on a contract indemnifying the insured under an automobile collision policy. An error urged by the appealing insurance company was that prejudicial hearsay evidence was admitted when Lopez was permitted to testify, immediately after he had signed the loss or damage agreement, that the garage operators told him that the car--after receiving the repairs contemplated--would not be in as good condition as it was before the wreck: that 'anybody would be able to tell it was a wrecked car, and that it would never again be as good a car as it had been before the wreck'.

In the opinion, written by Mr. Justice Leflar, this statement appears: 'If the evidence was received or considered by the jury for the purpose of establishing the truth of what was asserted in it, that is, for the purpose of proving the...