Henshaw v. State

• Decision Date: 27 January 1900
• Parties: HENSHAW v. STATE
• Court: Arkansas Supreme Court

55 S.W. 157

67 Ark. 365

HENSHAW v. STATE

Supreme Court of Arkansas

January 27, 1900

Appeal from Poinsett Circuit Court, FELIX G. TAYLOR, Judge.

Affirmed.

J. J Mardis and N. F. Lamb, for appellant.

It was error for the court to refuse to reprimand the prosecuting attorney for his misconduct, and instruct the jury to ignore the question to the witness and the statement made by the prosecuting attorney. 61 Ill.App. 55; 12 Mo.App. 431; 2 S.W 585; 62 N.W. 572; 32 N.W. 849; 58 Ark. 473; ib. 353; 150 U.S 76; 64 N.W. 261; 34 S.W. 228; 24 N.W. 390; 39 N.W. 585; 1 Bish. New Cr. Proc., § 975a; 27 S.W. 1109; 11 Ga. 615, 628; 65 N.C. 505; 75 N.C. 306; 79 N.C. 589; 41 N.E. 545; 32 S.W. 1149; 5 S.W. 842; 8 Tex.App. 416; 41 N.H. 317; 8 S.W. 749; 11 S.W. 462; 61 N.W. 246; 27 S.W. 128; 65 N.W. 61; 2 N.E. 296; 8 Tex.App. 416. It was error for the court to compel the defendant to proceed with the selection of a jury from a venire of only twenty persons, when eleven were required to complete the jury. Sand. & H. Dig., § 2194; 68 Ala. 515; 11 S.W. 723; 4 S.W. 816; 9 So. 429; 9 Pac.. 925; 10 S.E. 979; 10 So. 433; 5 S.W. 251; 6 So. 368; 12 So. 906; 14 So. 111; 6 So. 395; ib. 396; 1 C. C. A. 53; ib. 286; 36 P. 7; 26 S.W. 388; 16 So. 264; 36 P. 7; 12 So. 906; 14 So. 111; 47 N.W. 306; 13 S.E. 73; 19 A. 376; 11 S.W. 1117; 2 S.W. 726; 23 N.W. 245; 5 S.W. 251, 254.

Jeff Davis, Attorney General, and Chas. Jacobson, for appellee.

Since the adoption of the code, a prisoner has no right to a list of the jury. 35 Ark. 639; 38 Ark. 304. The court may excuse a talesman for any ground deemed sufficient. 29 Ark. 17; 35 Ark. 639; 44 Ark. 115. Appellant was not entitled to an particular juryman; and the use of a peremptory challenge could not have prejudiced him, when he did not use all his peremptory challenges before the panel was complete. 30 Ark. 328; 35 Ark. 639; 45 Ark. 169. No prejudice having resulted to appellant, the irregularity complained of is not reversible error. 11 Nev. 108; 8 Tex.App. 398; 29 Ga. 483. Appellant should have moved to set the panel aside. 29 Ark. 17; 5 Ark. 444; 21 Ark. 213.

BUNN, C. J. BATTLE J., did not participate.

OPINION

BUNN, C. J.

This is an indictment for murder in the first degree; trial and conviction for manslaughter, and sentence to three years' imprisonment in the penitentiary; and the defendant appealed to this court.

The defendant admits that the evidence is sufficient to sustain the verdict, and relies for reversal on errors of law.

A brief statement of the facts, however, will possibly throw light on the rulings of the trial court, which are the subject of exception and complaint before us.

The defendant is a young man, and at the time was looking after the business of his mother, who had rented land to the deceased for the year, who, as her tenant, had made and was about gathering a crop thereon. The defendant and deceased had had a difficulty concerning the rents due from deceased to defendant's mother, and one or more wordy conflicts had arisen between them. Each party was more or less incensed at the conduct and language of the other. Quoting from the brief and abstract of defendant's counsel: "The evidence adduced by defendant tends to show that Barker (the deceased) was a tenant on a farm belonging to defendant's mother; that a difficulty had arisen over the rent; that Barker had abused appellant's mother, and had threatened to do violence to appellant; that on the day of the killing appellant had been to Harrisburg (the county town), and consulted an attorney with reference to the rent; had procured papers to file before a justice of the peace the next day, with a view to enforcing his mother's lien for the rent; that on returning from Harrisburg he went over to Barker's house to see if a settlement could be made; called Barker out to the gate; moved away with him twenty or thirty steps; asked him if he would pay the rent without suit; that Barker thereupon became angry and abusive; struck at appellant with a large club; cut at him with his knife, cutting his shirt and suspender; and that appellant thereupon drew his pistol and killed Barker." As to what occurred between the defendant and deceased after the latter had gone out to meet the former, at his invitation, in front of the gate, the testimony for the state makes quite a different case from that made by the evidence on the part of the defendant, he being his only witness as to that.

The first error of the trial court, assigned and insisted on by the defendant, is the refusal of the court to properly instruct the jury as to improper remarks of state's counsel made before them, and its refusal to reprimand said counsel for making said remarks. It appears that, on cross-examination of Henry Moss, a witness for defendant, the prosecuting attorney interrogated the witness thus: "If he was not the same Henry Moss we had up for cattle stealing in Craighead county;" which being objected to by defendant's counsel, the same was, in words, withdrawn by the prosecuting attorney, who, apparently in explanation of his reason for asking the question, addressing himself to the defendant's counsel, but in the hearing of the jury, further said, "If you bring your jail birds here, I want the jury to know it." Objected to by the defendant's counsel, and objection sustained by the court, using the following language: "That is improper." The defendant, at the time of making the objection to the question and the remarks of the prosecuting attorney, also asked the court to reprimand the prosecuting attorney for asking the question and making the remark, and to instruct the jury to ignore the same, which the court refusing to do, the defendant excepted. The court might have been a little more emphatic in instructing the jury on the subject, but we do not think we can safely circumscribe trial judges to such minuteness of expression as asked in this controversy. They are present conducting the trial, and it is only in case of manifest abuse of discretion that they should be interfered with. The same may be said, but with still more emphasis, as to the court's refusal to reprimand the prosecuting attorney. The persistency in disobeying the rules of court, and contemptuousness in unbecoming conduct generally, which alone would call forth a reprimand of a public officer representing the state, are matters to be dealt with cautiously, for fear that the remedy may prove worse than the disease. Each judge ought to and does have a sound discretion when and where to employ this method of discipline, and this discretion ought not to be controlled by appellate courts, except in extreme cases, and where the control is clearly right and proper.

Not as a matter affecting the legal proposition, but rather to show that this whole controversy had a rather unnecessary origin, the witness Moss, having been permitted finally to proceed and give his testimony, said that he had heard deceased say on one occasion, when talking about the crop, that "he would take Henshaw by the heel and wear his head out against the ground;" and again within a month before the killing, he had heard deceased say he had a crop on Henshaw's place, and that they had some trouble, and that he had made him (defendant) take some calves out of the field, and "if that outfit [meaning the Henshaws] fools with me, I will go up, and throw the whole business out. They have fooled with me about all they are going to." This was evidence adduced on the part of the defendant to show that threats had been made by the deceased against the defendant, and as a defense against the charge against him. Such threats if threats they were, were not such as would justify a homicide, or even such as would induce the threatened party to put himself on his guard. They were, in fact, incapable of being carried into execution, or amounted to mere idle talk or boasting, indicating only that no good feeling existed between the parties. There was, however, some degree of prejudicial error, some unfairness, in the question and the subsequent remark. It does not appear that the witness had ever been convicted of cattle stealing. He was therefore innocent of such a charge, and it was improper to cast this reflection upon him, and through him upon the defendant and his cause. But the remarks of the court may have been all sufficient to give the jury to understand how to treat this matter. It is not easy to suppose that anyone is so ignorant as not to understand the meaning of words used by the court in this connection.

The assistant prosecuting attorney in his opening argument to the jury, used...