Hamilton v. State

• Decision Date: 08 July 1896
• Citation: 36 S.W. 1054,62 Ark. 543
• Parties: HAMILTON v. STATE
• Court: Arkansas Supreme Court

36 S.W. 1054

62 Ark. 543

HAMILTON v. STATE

Supreme Court of Arkansas

July 8, 1896

Appeal from Logan Circuit Court JEPHTHA H. EVANS, Judge.

STATEMENT BY THE COURT.

The appellant, Charles Hamilton, on the 2d day of December, 1895 in the Charleston district of Franklin county, killed A. C McAbee by shooting him with a gun. He surrendered himself and was placed in jail at Ozark, in said county, to await the action of the grand jury. The day for the holding of the next regular term of the circuit court for the Charleston district of said county, after said killing, was the first Monday in February, 1896; but the judge of the circuit court, on the 12th of December, 1895, issued an order for a special term of said court, to be held on the 30th day of December, 1895, for the trial of Hamilton. The special term convened on that day. A grand jury was impaneled, and soon afterwards returned an indictment against Hamilton, charging him with murder in the first degree. The body of the indictment alleged that "the said Chas. Hamilton, on the 2d day of December 1895, in the county and district aforesaid, did unlawfully, wilfully, feloniously, and of his malice aforethought, and after deliberation and premeditation, kill and murder one A. C. McAbee, by shooting him, the said A. C. McAbee, with a certain gun which the said Chas. Hamilton then and there had and held in his hands, the said gun then and there being loaded with gunpowder and leaden bullets, against the peace and dignity of the state of Arkansas. Sam. R. Chew, Pros. Attorney."

The defendant filed a motion to quash this indictment, for the reason that the special term of court at which it was found was ordered at a time and under circumstances not authorized by law. The motion was overruled. The defendant thereupon filed a demurrer to the indictment, which was also overruled. A motion for continuance filed by the defendant was overruled, and then, on motion of defendant, the venue was changed to the Logan circuit court. On the 8th day of January, 1896, the case was called in the Logan circuit court. The defendant again filed a motion for a continuance, which was overruled, and the defendant placed on trial. From the evidence adduced at the trial, the following facts appear: The deceased, McAbee, was a farmer, fifty-three years of age, who lived upon his farm two miles distant from the town of Charleston, in Franklin county. The appellant, Hamilton, a young man about 26 years old, and a cousin of the wife of McAbee, cultivated a crop on McAbee's place in 1895, but during the summer he left the place, and went to Texas. After remaining there two or three months, he returned to this state. On the morning of December 2, 1895, he called at McAbee's house between 9 and 10 o'clock, and inquired for McAbee. Upon being told that McAbee was in the field, plowing, he walked over to the field. When Hamilton approached the field, McAbee was alone, plowing, and no one was present until after the killing, except McAbee and Hamilton. What then took place was told by Hamilton himself on the witness stand, as follows: "I told him [McAbee] that I was going to Mazzard Prairie to collect a debt, and that I had come by to get what he owed me for pitching up some hay. We stood there, and talked some time, and McAbee said it was too cold to stand there, and asked me to walk with him while we talked. So I walked several rounds with him, and finally McAbee said that he did not owe me anything, and would not pay me anything. I told him that he owed me $ 5.75, but that I would give him $ 2.00, and he could pay me $ 3.75. But he said that he did not consider that he owed me anything, and would not pay me anything; that I owed him for board while I stayed there and was not at work; that if anybody was to pay money I ought to pay him for my board. So I left, and went back to the house, where I had left my horse. This was about 9 o'clock in the morning. I told Cousin Mary [Mrs. McAbee] that the old man would not pay me, and that I was going to town, and see what I could do with the law. I got on my horse, and rode back up in the field, and told Mr. McAbee that, if he did not pay me, I was going to town, and attach a stack of hay, and he plowed on, and told me to go on and do what I was going to do, that he did not care what I did, but not to come bothering him; so I went on." Hamilton then stated that, on the way to town, he saw some ducks in a branch, and that he borrowed a shotgun from a man named Dawson to shoot the ducks. When he returned, the ducks had gone, and, after looking for them a while, he went again to the field where McAbee was plowing. "McAbee asked me," said Hamilton, "what I was doing with that gun. I told him about being after the ducks, and said to him that we could settle our differences some other way than by going to law with it. McAbee told me to get out of his field, and pulled out his knife, and came at me with it, waving his hands, and saying he would tear me all to pieces. I told him not to come, to stand back. At that time my gun was resting on the ground, on the butt end of the gun. He kept coming at me, so I raised the gun, and fired, when McAbee staggered, and fell backwards. I then walked up in about two feet of him, and stood there a moment or so, and heard him groan a time or two. Then I walked back to where I left my horse, and went up to Mr. Dawson's, and put the gun up, and then rode over to my brother-in-law, Mr. House, about twelve miles, and told him about it, and we came back to Charleston that night about dark, and I gave myself up to Mr. Carter, the deputy sheriff."

There was testimony tending to contradict some of the statements of defendant.

After McAbee was killed, his body remained on the ground until late in the afternoon. It was then found by a boy sent to look for him. The horses were still standing hitched to the plow, which had fallen over, but apparently had not been moved. The body of McAbee lay face upwards, the feet within a few inches of the plow handles. In his left hand was his pocket knife, loosely grasped, the blade open. On his feet were a pair of coarse brogan shoes which he wore. Hamilton on that day wore a pair of sharp-toed shoes about No. 6 or 7 in size. The witnesses testified that the tracks made by these shoes of Hamilton on the plowed ground when he approached and left the body could be plainly seen. At one place about seventy-five yards from the body the tracks of deceased were seen where he had removed a loose stump from the plowed ground. With this exception, although the witnesses looked carefully, no other tracks of the deceased were found, except such as he made in the furrow following his plow, and at the ends of the furrows when he turned his team. Dawson, the man from whom Hamilton borrowed the gun, testified that Hamilton asked him for his gun to shoot some ducks in the branch. "I told him," said Dawson, "that he could have the gun. * * I got him some shells that I had loaded for bird shooting. The defendant said he wanted some larger shot, and asked me if I did not have some larger shot. I told him I thought so, and looked about in the closet, and found three shells that I had loaded last spring to shoot some geese. The shot were large duck shot. * * I handed the defendant the shells, and he asked me for a gimlet to draw the wads with, to see the size of the shot. I could not find the gimlet, and the defendant then took out his knife, and drew the wad, and looked in the shell, and remarked to me, 'These are the ones. These will do.' He took the gun, and left," etc. These were the main facts in evidence. Such other portions of the evidence necessary to notice are referred to in the opinion.

Judgment affirmed.

Rowe & Rowe, J. Frank Keith and Robert J. White, for appellant.

1. The indictment should have been quashed. (1) There was no reason for a special term of the court. (2) There was no person confined in the county jail subject to trial. (3) The holding of a special term must not interfere with the holding of the regular term. Sand. & H. Dig., 1312, 1130. The power to hold a special term being a special power, every circumstance necessary to its exercise must exist, and appear of record. 9 Ark. 326; 2 id. 230.

2. Defendant had no opportunity to object to the grand jury. Sand. & H. Dig., sec. 2067; 50 Ark. 534; 44 id. 332.

3. The indictment was bad. The word "malicious" is omitted entirely. 60 Ark. 567; Sand. & H. Dig., sec. 1644; 21 Ark 183; 43 id. 345.

4. It was error to refuse the continuance. 2 Bish. Cr. Pro. (3 Ed.), sec. 610.

5. It was error to excuse jurors Creekmore, Morris, and Henry. They were competent jurors. 47 Ark. 185; 40 id. 460.

6. The evidence is totally inadequate to sustain the verdict.

7. The court erred in its instructions. See 49 Ark. 542. The court assumed there was a difficulty. This should have been left for the jury to determine. Sackett, Inst. to Juries, sec. 16; 45 Ark 256; 52 id. 517. Instructions based upon a hypothetical state of facts, as to which there is no evidence, are abstract and erroneous. 54 Ark. 339. It was error to give instruction No. 12. Defendant was a witness and was entitled to have his evidence considered by the jury in the same way as the other witnesses. 58 Ark. 362-5. It was error to single out and give undue prominence to isolated parts of the testimony, while sinking out of view the theory of the defense. 2 Thomp. Trials, sec. 2330, 2331; Sackett's Inst. to Juries, secs. 13, 14; 37 Ark. 333; 14 Heisk (Tenn.), 197. If there is any evidence to sustain the theory of defendant, it is the duty of the court to instruct on this theory. Sackett, Inst. etc. to Juries, sec. 15; 50 Ark. 549. The definition of the judge of murder in the first degree leaves out the words "wil...