Henry v. State

• Citation: 237 S.W. 454,151 Ark. 620
• Decision Date: 13 February 1922
• Docket Number: 141
• Parties: HENRY v. STATE
• Court: Supreme Court of Arkansas

237 S.W. 454

151 Ark. 620

HENRY v. STATE

No. 141

Supreme Court of Arkansas

February 13, 1922

Appeal from Garland Circuit Court; Scott Wood. Judge; reversed.

Judgment reversed and cause remanded.

S W. Garratt and Wm. G. Bouic, for appellant.

Confessions must be considered in their entireties. 69 Ark. 599. Confession should not be received unless voluntarily made. 50 Ark. 501. Where improper influence has been used to obtain a confession, it will be presumed that the confession flows from that influence. 109 Ark. 322.

The court erred in instructing the jury that by reason of the fact that the indictment alleged that the killing was done in the attempt to rob, the only verdict that could be rendered was murder in the first degree or acquittal. 69 Ark. 107.

Instruction No. 3 should not have been given; it was not in keeping with the law. 58 Ark. 47; 104 Ark. 245.

The court erred in refusing to give the instruction asked by defendant, dealing with the confession. 107 Ark. 568.

J S. Utley, Attorney General; Elbert Godwin and W. T. Hammock, Assistants, for appellee.

The confession was voluntarily made. 34 Ark. 649. Whether or not the confession was voluntarily made was a question for the trial court, and his findings will not be disturbed unless it appears that he abused his discretion. 74 Ark. 397; 107 Ark 568; 94 Ark. 343; 99 Ark. 453.

A confession made without caution to the accused that it might be used against him, is not incompetent unless invalidated by statute. 107 Ark. 568; 114 Ark. 472; Logan v. State, 150 Ark. 486.

If the defendant was guilty at all under the indictment, he was guilty of murder in the first degree. C. & M. Digest, § 2343.

Under the indictment and evidence it was proper for the court to refuse to instruct the jury on murder in the second degree. 88 Ark. 447; 36 Ark. 284; 50 Ark. 506; 52 Ark. 345.

It was not error for the court to instruct the jury that all persons present aiding and abetting or ready and consenting to aid and abet in the commission of a felony should be deemed principals, and indicted hand punished as such. C. & M. Dig., sec. 2311; 58 Ark. 47; 10 Ore. 505; 149 Ill. 612; 90 Mo. 220; 11 Cush. 428.

Defendant did not request an instruction on circumstantial evidence, and it is too late to complain now. 89 Ark. 300; 110 Ark. 567; 129 Ark. 324.

OPINION

MCCULLOCH, C. J.

Defendant was convicted under an indictment charging murder in the first degree in the killing of one Aaron Dill with intent to rob. The language of the indictment (omitting the caption and formal part) is that the accused "did unlawfully, wilfully, feloniously and with malice aforethought, and after deliberation and premeditation and with a felonious intent then and there to rob Aaron Dill, did assault, kill and murder the said Aaron Dill by shooting him, the said Aaron. Dill, with a certain gun, which he, the said Ezekiel Henry, then and there held in his hands, the said gun being then and there loaded with gunpowder and bullet, against the peace and dignity of the State of Arkansas."

Dill was found dead in the city of Hot Springs, on a street near his home, on a certain Sunday night about 7:30 o'clock. His death resulted from a bullet wound in the right temple. The body was found in a few moments after he was shot, several witnesses having heard the shot fired. He was lying on his back, and the officer who first examined the body found a .45 caliber pistol inside of his vest, and his right hand was extended in under his vest. The lighted stump of a cigar found in his hand indicated that he was smoking at the time, and his clothing was burned by the lighted cigar, which was not entirely extinguished when the officer examined the body.

One witness testified that she lived close to Dill's home, that she heard the shots fired about 7:30 o'clock and saw two men running from the scene of the shooting; that the men separated, one going up Palmetto Street and the other going up Grove Street. Another witness living nearby testified about hearing the shooting and then seeing two men running from the spot immediately after the shooting. Neither of these witnesses could identify either of the persons that they saw running from the scene of the killing. Another witness, Bell by name, testified that he was acquainted with appellant, and that on the night of the killing he met appellant and another man on the street close to the spot where Dill was killed and recognized appellant, and that shortly afterwards he heard the report of a gun, and then saw appellant and the other man running from that direction. This witness gave a description of the manner in which appellant and his companion were dressed. Still another witness testified that she saw two men answering the description given by Bell running from the scene of the killing immediately after the shot was fired. This witness stated that she was not personally acquainted with appellant, but she described the manner in which appellant was clothed, and said that she knew that he was a man commonly called "Zeik,"--appellant's name being Ezekiel.

The State then proved by William Brandenburg, the city detective, a confession by appellant made to him, and the confession was introduced in evidence over the objection of appellant's counsel. In this confession, which had been reduced to writing by a stenographer and which was elicited by questions propounded, appellant stated, in substance, that just before the killing of Dill he went to the home of John Davis, and that Davis there made a proposition to him that they would go out together and "get some jack," to which offer he finally acceded; that he and Davis walked down a certain street together and met Dill, and that Davis commanded Dill to "hands up." He stated that he (appellant) then started to run away, and as he did so he heard the shot fired. He testified that Davis had a .45 caliber pistol, which he carried when he left home.

The principal ground urged for the reversal of the judgment is that the confession of appellant was obtained by promises made to him by witness Brandenburg, and that it should have been excluded.

Before introducing the confession, Brandenburg was examined and cross-examined concerning the circumstances and conversation which led up to the confession. He testified that he took appellant to the office of the chief of police and remained in the room with him, holding appellant's hand. He stated that he used no violence, and was merely holding appellant's hand in an affectionate way, and that in this attitude they talked together for a considerable time, and that appellant broke down and told the whole story about his participation in the killing of Dill. Brandenburg was asked the direct question whether or not he had used any violence or threat or any kind of a promise to obtain the statement from appellant, and he replied that he had not done either of those things, but that, after appellant had made the confession, he said to appellant that if they caught the other man (Davis) and it was proved that Davis committed the crime, it might be lighter on him (appellant). Brandenburg was positive in his statement that this was said to appellant after he had made the confession

The appellant did not testify, and no other testimony was introduced as to the confession.

We think that under the circumstances the court was justified in permitting the confession to go to the jury. The fact that appellant was not previously warned of its use against him did not render the confession incompetent. Greenwood v. State, 107 Ark. 568, 156 S.W. 427; Dewein v. State, 114 Ark. 472, 170 S.W. 582; Logan v. State, 150 Ark. 486, 234 S.W. 493. Nor was the alleged confession rendered incompetent by the fact that the officer to whom it was made stated, after it was made, that under certain circumstances it might be lighter on appellant. The confession being already made, it was competent as proof of appellant's guilt, and nothing which thereafter occurred could have rendered it incompetent.

It is next contended that the court erred in giving the following instruction:

"If you believe from the evidence in this case beyond a reasonable doubt that the defendant in Garland County, Arkansas, in an attempt made by the defendant, or the defendant and some other person acting together, to rob the deceased, Aaron Dill, shot and killed the said Aaron Dill with a pistol or gun, then you should find the defendant guilty of murder in the first degree."

The indictment in this case was preferred under the statute (Crawford & Moses' Digest, § 2343) which declares that murder "committed in the perpetration of, or in the attempt to perpetrate, arson, rape, robbery, burglary or larceny shall be deemed murder in the first degree." In Rayburn v. State, 69 Ark. 177, 63 S.W. 356 the court held that under an indictment charging the crime of murder committed by an act of wilful, deliberate, malicious and premeditated killing, without charging that the killing was done in the perpetration, or in the attempt to perpetrate, one of the felonies mentioned in the statute, there could be no conviction of murder in the first degree without proof of the elements of the crime charged in the indictment, and that the giving of an instruction identical with the one quoted above was erroneous and prejudicial. In the present case, however, it will be observed that the indictment charges the commission of the offense in the attempted perpetration of the crime of robbery, and, as held in the Rayburn case, supra, this of itself constitutes murder in the first degree without proof of the other elements mentioned in the statute. In other words, the statute itself makes homicide committed in the perpetration of, or the attempt to...