Hogue v. State

• Decision Date: 17 January 1910
• Parties: HOGUE v. STATE
• Court: Arkansas Supreme Court

124 S.W. 783

93 Ark. 316

HOGUE v. STATE

Supreme Court of Arkansas

January 17, 1910

Appeal from Perry Circuit Court; Guy Fulk, Judge; affirmed.

Judgment affirmed.

Appellant pro se.

1. The court's charge to the jury on the question of the presumption of innocence was not full enough in that it did not instruct them that this presumption continues throughout the trial or until his guilt is established to the satisfaction of the jury beyond a reasonable doubt. 164 U.S 492; 116 Ala. 445; 29 Fla. 527; 95 Neb. 1038; 96 N.W. 266; 55 Neb. 777; 9 Enc. of Ev. 923; 106 Cal. 104; 101 Wis. 627; 127 Ind. 419.

2. The second instruction given over defendant's objection was in effect an expression of opinion on the weight of the evidence, and is clearly erroneous. 41 Ark. 343; 10 Ark. 138; 11 Ark. 830; 14 Ark. 63; 23 Ark. 32; 26 Ark. 362; 45 Ark 165; 49 Ark. 439; 62 Ark. 543. The jury are the exclusive judges as to whether the facts adduced in evidence tend to establish defendant's guilt. 34 Ark. 449; 54 Ark. 287; 55 Ark. 184; 57 Ark. 578. It is further erroneous in that it singles out a certain portion of the testimony and calls especial attention to it. 141 Ill. 210; 105 Ill. 417; 92 Ill. 602; 99 Ill. 371; 10 Bush (Ky.) 495; 41 Tex. Cr. App. 252; 52 S.W. 417; 33 P. 791; 27 N.E. 710; 11 So. 915; 5 So. 167; 65 N.W. 213; 61 Neb. 584.

3. The seventh instruction given by the court assumes that there were suspicious circumstances, which was a question of fact for the jury to determine from the evidence. 62 Ark. 558.

4. The court erred in refusing to give the nineteenth instruction requested by the defendant on the question of motive. 34 Ark. 761; 44 Pa. 386; 17 Ala. 825; 103 Ala. 31; 33 La.Ann. 782; 10 N.Y. 13. The State's theory was that the motive leading to the murder was robbery. Hence the motive was of great, if not controlling, importance. 156 N.Y. 253; 49 N.Y. 137; 148 N.Y. 648.

Hal L. Norwood, Attorney General, and C. A. Cunningham, for appellee.

1. Appellant's rights were fully protected in the instructions given, when taken as a whole; hence there was no reversible error in the instruction given on the question of presumption of innocence. The jury as reasonable men necessarily understood that this presumption followed the defendant until his guilt was established by the evidence beyond a reasonable doubt. There is no error in refusing to give an instruction which is sufficiently embraced in other instructions given by the court. 87 Ark. 308; 86 Ark. 606; 74 Ark. 33; 72 Ark. 384; 53 Ark. 472; 54 Ark. 621; 52 Ark. 180; 37 Ark. 108; Id. 67; 34 Ark. 649; 15 Ark. 624.

The second instruction given is a correct declaration of law. 34 Ark. 754.

3. The jury were fully instructed that they were the exclusive judges of the evidence and of its weight and sufficiency. The seventh instruction is not open to the objection that it assumes that there were suspicious circumstances.

4. The court correctly refused to give the 19th instruction requested by appellant. 74 Ark. 418.

OPINION

MCCULLOCH, C. J.

Defendant, Walter Hogue, was indicted by the grand jury of Perry County at the February term, 1909, for the crime of murder in the first degree, charging him with the killing of Grover Misner in Perry County, on November 29, 1908. The case was tried at the August term, 1909, and he was convicted of murder in the first degree, as charged in the indictment. The testimony adduced by the State tended to establish the following state of facts:

Defendant lived in Scott County, Arkansas, and Misner lived in Crawford County with his mother, and he raised and gathered a crop of cotton that year. In the fall of the year defendant visited Crawford County, and while there he and Misner, who were both young men, planned to go on a hunting and trapping trip. They left home for that purpose early in November. Misner had just sold his crop, consisting of three bales of cotton, and had a considerable portion of the proceeds with him. Misner had a Winchester rifle, a watch and a suit case when they started on the trip.

The pair first went to Fort Smith, thence to Mansfield, where they remained a few days, thence to Ola, and from Ola they went down into the bottoms near a lake. Misner purchased a lot of traps and other supplies for the trip. They remained on this lake for a while, and then went to Aplin, in Perry County, and camped near a bridge on Fourche Bayou. On or about the 25th of November they moved their camp to a deserted cabin in the Fourche bottom, about two miles from Aplin. On Sunday, November 29, two of the witnesses, hearing gun or pistol shots down in the bottom, went to the cabin, and there found the defendant and Misner engaged in skinning a coon, which they claimed to have caught in a trap that morning. This was the last seen of Misner until his decomposed body was found in the cabin by two of the witnesses on January 21, 1909.

Very early on the morning of November 30, defendant was seen passing the house of a witness going toward Casa, Ark., and it was proved by another witness that he boarded a freight train at Casa that morning and paid his fare to Mansfield, exhibiting at the time a considerable roll of money. A witness who saw him at Mansfield about December 1 stated that he told him that he had got tired of trapping and had sold out to his partner, who had gone to Louisiana. He also stated to this witness that he had made about $ 80 trapping.

The body of Misner was discovered by Dr. Matthews and a Mr. Wallace, who lived at Aplin, and, when passing the deserted cabin in the bottom, they were attracted by the odor which came from the inside, and on investigation found the decomposed body. The cabin door was fastened with a lock which Wallace had sold to defendant. The body was found in the corner of the cabin lying on some corn shucks, with a wagon sheet under and over it. The face was turned toward the wall, and there were three bullet holes in the back of the skull. There was a piece of cloth with Misner's name on it sewed on the inside of the hip pocket of the pantaloons, and there was a tablet lying near the body with Misner's name on it. His shoes were sitting near the body when found. Defendant had a white hat when he left on the trip, and Misner was wearing a black hat; but when defendant was seen going to Casa, he was wearing a black hat, and his own hat was in the cabin at the time Misner's body was found. A cuff button was found near defendant's cell in jail, which was identified as the property of Misner, and when arrested he had a watch which the testimony tended to identify as one owned by Misner. A number of contradictory statements made by defendant was proved, as to what became of Misner and where he left him, and, among other things, he stated to one witness that he had not been in Perry County. A fellow prisoner in jail testified that defendant confessed to him while in jail that he had killed Misner for his money. Taking all these facts and circumstances into consideration, there was abundant testimony to justify the finding of the jury that Misner came to his death at the hands of defendant, and that it was murder in the first degree.

The instructions given by the court were very full, and covered every phase of the case. Several were given at the instance of defendant's counsel, but many more requested by him were refused. Those refused related mainly to the question of reasonable doubt and presumption of innocence; but, as all of the refused instructions were substantially covered by others given, there was no error in refusing them. The instructions given and refused are too numerous to be copied here or discussed in detail.

The court gave, over defendant's objection, the following instruction, which is assigned as error: "2. You are instructed that if you believe from the evidence in this case that the defendant was the last person ever seen with the deceased, and that he had never been seen since that time, and that the defendant had failed to account for or explain his absence, these are circumstances which tend to establish the defendant's guilt, but are not alone sufficient to warrant a conviction. It must also appear from the evidence that the deceased, Grover Misner, came to his death by the agency of the defendant."

The instruction is objected to on the ground that it is a charge on the weight of the evidence, and that it improperly singles out one circumstance and emphasizes it. This instruction is almost an exact copy of an instruction which was approved by this court in Edmonds v. State, 34 Ark. 720. The peculiar facts of the Edmonds case were such as to give greater force to the fact of the defendant having failed to account for or explain the disappearance of the deceased. But this difference relates merely to the weight to be given to the circumstance, and not to the correctness of the instruction. In that case the deceased was a woman whom defendant had brought from Kentucky, and with whom he was living in illicit relations when she disappeared. In the present case Misner was scarcely more than a mere boy, though only a few years younger than defendant, and they were both far from home, away from friends and acquaintances, living together in a deserted cabin in the woods. The peculiar circumstances surrounding their separation and the finding of the body of Misner in the deserted cabin after defendant had left it, if unexplained by defendant, tended with great force to establish his guilt.

It is insisted that the use of the words "circumstances which tend to establish the defendant's guilt" was an instruction on the weight of the evidence. We do not so construe the language. Trial judges should not admit proof of circumstances which do not tend to prove or disprove the...