Halley v. State

• Decision Date: 12 May 1913
• Parties: HALLEY v. STATE
• Court: Arkansas Supreme Court

158 S.W. 121

108 Ark. 224

HALLEY v. STATE

Supreme Court of Arkansas

May 12, 1913

Appeal from Sebastian Circuit Court, Fort Smith District; Daniel Hon, Judge; affirmed.

STATEMENT BY THE COURT.

The defendant, Jim Halley, was indicted for the crime of assault with intent to kill, alleged to have been committed by cutting his wife with a razor. The defendant and his wife are colored people. The alleged assault occurred at the home of the defendant. The defendant and a companion named Arthur Hill came to the defendant's house one night after his wife had gone to bed. She got up and let them in and got back in bed. Her husband complained about her being so long in opening the door and then asked her if she had anything cooked. She replied that she had not and was not going to cook for him any more. The defendant and his companion soon left the house and in a few minutes Arthur Hill returned. The defendant's wife got up out of bed and it was discovered she had been cut. She dressed herself and, in company with Arthur Hill, went out on the streets in search of a physician. They met a policeman and the defendant's wife told him her husband had beaten her up and cut her with a razor. The policeman found that a place right over her spine was swollen as large as his wrist and that there was a cut in her shoulder from about four to six inches long. He went home with her and examined the condition of the bed she was in when she was cut. He found a cut place through three quilts and the sheets and pillows were bloody. The defendant was arrested and carried before the police judge of Fort Smith. The police judge testified that it was his recollection that the defendant admitted to him that he had cut his wife with a razor. The defendant's wife testified that she first believed her husband had cut her and so stated to the policeman. That on the next day Arthur Hill told her that he had done the cutting and she believed him. She said that no one was in the room at the time she was cut except Arthur Hill, her husband and herself, but that she had her head covered up with the bed quilts and did not see who cut her and does not now think that it was her husband who did it.

The defendant testified that he did not cut his wife, but made no other statement about it at all. The defendant and his wife were both placed in jail. Other witnesses for the defendant testified that before they were admitted to bail they examined the quilts on the bed in which the defendant's wife was lying at the time she was cut and could not discover any cut places on the quilts. They exhibited to the jury the quilts which they said were on the bed and there were no cut places on them.

In rebuttal, the State introduced the policeman who had examined the quilts and he stated that they were not the quilts which were on the bed, and which he examined almost immediately after the crime was committed.

The jury returned a verdict of guilty and from the judgment rendered, the defendant has duly prosecuted an appeal to this court.

Judgment affirmed. Motion for rehearing denied.

Jo. Johnson, for appellant.

Wm. L Moose, Attorney General, and John P. Streepey, Assistant, for appellee.

1. The demurrer was properly overruled. Kirby's Dig., § 1588; 65 Ark. 404.

2. The law only requires the presence of defendant in the examining court so that he may exercise the privilege of cross examination. 99 Ark. 507.

3. The wife was a competent witness. Kirby's Dig., § 3092.

4. No objections or exceptions were saved to the instructions. 95 Ark. 325.

OPINION

HART, J., (after stating the facts).

The indictment alleges that the assault was made unlawfully and feloniously, with malice aforethought, and after premeditation and deliberation. This was sufficient, and the court did not err in refusing to sustain the demurrer to the indictment. Section 1588 of Kirby's Digest; Dillard v. State, 65 Ark. 404, 46 S.W. 533.

The defendant in his motion for a new trial assigns as error the action of the court in admitting certain evidence. We do not deem it necessary to set out the testimony or more particularly refer to it. It is sufficient to say that we have examined the transcript and it does not appear that the defendant excepted to the ruling of the court in admitting it. Under our rules of practice, the defendant must first object to the introduction of evidence and, if the court admits the evidence over his objection, he must except to the ruling of the court. This the defendant did not do and we can not consider his objection. Walker v. State, 39 Ark. 221; Burris v. State, 38 Ark. 221; Green v. State, 38 Ark. 304; Misenheimer v. State, 73 Ark. 407, 84 S.W. 494.

The record shows that the defendant's wife first claimed that her husband cut her with a razor and afterwards testified in the examining court that he did not cut her and that she did not know who did cut her. Because of her change in testimony, she was indicted for perjury. At the beginning of the trial the defendant agreed to try this case at the same time and together with the perjury case against his wife. He now contends that, although he consented to do this, the action of the court in permitting it was error. The precise question has never been determined by this court and so far as our examination discloses, by any other court. In the case of McClellan v. State, 32 Ark. 609, two separate indictments were returned against the same defendant, and, by his consent, he was tried upon both indictments at the same time. The case was reversed for other reasons and the court said that the trial of the defendant upon both indictments at the same time was an irregularity, to say the least of it, and that such practice would certainly produce great confusion and uncertainty and should be condemned. It must be conceded that irregularities come at first by degrees and are tolerable because no perceptible injury has followed the first step, and such practice should not be allowed by the trial court. It does not follow, however, that the judgment below should be reversed alone on the ground of the irregularity here mentioned. The court had jurisdiction to try the charges made by the indictments against both parties, and had obtained jurisdiction over the persons of both of...