Hudspeth v. State

• Decision Date: 30 June 1888
• Citation: 9 S.W. 1,50 Ark. 534
• Parties: HUDSPETH v. STATE
• Court: Arkansas Supreme Court

9 S.W. 1

50 Ark. 534

HUDSPETH v. STATE

Supreme Court of Arkansas

June 30, 1888

APPEAL from Boone Circuit Court, R. H. POWELL, Judge.

Judgment reversed and cause remanded for new trial.

W. F Pace, for appellant.

1. It was error to submit the cause to a second grand jury, when there was an indictment then pending for the same offense. The burning of records and indictments does not put an end to the first prosecution. 40 Ark. 494; sec. 2130, Mansf. Dig. was repealed by the code. 48 Ark. 101.

2. The grand jury was not legally impanelled. See sec. 3976, Mansf Dig., for proper manner. Also sec. 4003, where the lists are destroyed, and secs. 3982-3. 34 Ark. 722. 21 Ark. 201. The statute was not complied with in this case. The lists returned by the jury commissioners having been destroyed, the court should have ordered the sheriff to summon the grand jury. There is no proof that the list was certified or the endorsement made, as required.

3. By reason of confinement, appellant was deprived of his right to challenge an incompetent grand juror, one who was a witness against him. Sec. 2098, Mansf. Dig.; 10 Ark. 78; 12 Id., 631.

4. It was error to refuse to allow appellant to impeach the prosecuting witness, Rebecca Watkins, after laying proper foundation. It has always been the practice to allow a witness to give his own opinion, based upon the general reputation for truthfulness of an impeached witness, as to whether he is worthy of belief on oath. 15 Ark. 651; 29 Id., 136; Mansf. Dig., sec. 2902.

5. The testimony of Rebecca Watkins, if true, showed her to be an accomplice, and the court should have instructed the jury clearly, that appellant could not be convicted upon her uncorroborated testimony. Mansf. Dig., secs. 2260, 2295; 43 Miss. 472; 54 Mo. 526; 37 Ark. 67; 40 Ark. 482.

6. The proof of the corpus delicti is not sufficient in this case. 43 Miss. 472; 54 Mo. 526; 2 Leak's Cr. Law, 648; 18 N.Y. 179; 45 Ark. 542.

D. W. Jones, Attorney General, for appellee.

1. Where a second indictment is found for the same offense, the first is suspended. Mansf. Dig., sec. 2130.

2. The grand jury was impanelled according to law. Ib., secs. 3982-3. The presumption is, that officers do their duty, and there is nothing to the contrary here. 24 Ark. 403; 30 Id., 71.

3. No objection was made to the grand juror Dobbs before he was sworn; and there is nothing in the record to show that he was a witness for the state before the finding of the indictment. Sec. 2098, Ib.

4. The court gave the jury as part of its charge, the sections of the Digest relative to confessions, and defining an accomplice; also Sec. 2296. There can be no complaint on this point.

5. The instructions are copied from those approved in 36 Ark. 126; 43 Id., 371; 45 Id., 542.

6. It was the province of the jury to determine the fact of the death, as well as the criminal agency, and either of them may be proved by circumstantial evidence alone. 34 Ark. 734.

OPINION

BATTLE, J.

The defendant, Hudspeth, was twice indicted in the Marion circuit court for murder in the first degree, committed by killing one George Watkins was twice indicted for the same offence. The indictments were found by different grand juries and at different terms of the court. The second was found at the August term in 1887. The defendant moved to set it aside for the following reasons:

First. The grand jury which found it had not been selected, summoned and impanelled in the manner prescribed by law.

Second. The grand jury which returned it had not been selected and summoned by the sheriff; and that no list of the jurors composing said grand jury was on file in the office of the circuit court, showing that they were selected by jury commissioners appointed by the court, and that there was no record showing an order of the court appointing jury commissioners to select persons to serve as grand jurors at the term of the court at which the second indictment was found.

Third. Because there was an indictment against him for the same offense, which had not been set aside, and this cause was submitted to the grand jury for its action while it was pending.

Fourth. Because he was held to answer the charge preferred against him, and was confined in jail, at the time the grand jury, which found the second indictment, was impanelled; that William T. Dobbs, a member thereof, had been summoned to testify against him as to the offense for which he was indicted; and that, by reason of his imprisonment, he was deprived of his right to object to his competency to serve as a member of such jury.

To sustain this motion, the defendant introduced the clerk of the court, who testified that, at the February term of the Marion circuit court in the year 1887 jury commissioners were appointed by the court; that they selected the grand jurors and alternates to serve at the August term of the court in the same year, and made out a list of them, and sealed them up in an envelope, and filed it in open court; that on the 25th of July, 1887, he opened the envelope containing the lists, and made out copies thereof and delivered them to the sheriff; that on the 10th of August following the records of Marion county, including the first indictment and the lists made out by the jury commissioners, were destroyed by fire; that enough of the records of the proceedings of the Marion circuit court remain to show that an order was made appointing said jury commissioners and that they had acted; that he examined the copies he made carefully, and that he believed the lists returned into court to be exact copies of the originals. From this we infer that the sheriff returned the copies delivered to him, served, after the originals were burnt, and that from these copies the grand jury for the August term were selected.

The fourth reason assigned in the motion was admitted by the state to be true. But it appears that the fact that the first indictment and record thereof were burnt was unknown to the court at the time the grand jury was impanelled. After it was discovered the defendant was brought into court, and appeared by his attorney, and the court ordered that the charge against him be submitted to the grand jury then impanelled for their action. It does not appear that he demanded that the grand jury be brought into court in order that he might object to the competency of any member thereof to investigate and act upon the charge against him, but simply excepted to the order of submission. No objection was made to any member until after the second indictment was found and filed in court.

The court refused to sustain the motion, and the defendant was tried on the second indictment, convicted of murder in the first degree and condemned to death.

It is now contended that the motion should have been sustained, because the grand jury which returned the indictment into court was illegally impanelled. It is contended that, the original lists of grand jurors and alternates selected by the jury commissioners having been destroyed by fire, it was unlawful to select the members of the grand jury from copies of such lists. Is this true?

The statutes of this state make it the duty of the circuit courts at their several terms, to appoint three jury commissioners, whose duty it shall be to select from the electors of the county sixteen persons to serve at the next term of the court as grand jurors, and such other number of electors, not exceeding nine, as the court may direct for alternate grand jurors, and to make separate lists of the same, and to specify in one list the names of the sixteen persons selected as grand jurors, and to certify it as the list of grand jurors; to specify in the other list the names of the alternate grand jurors, and certify it as the list of alternates; and to inclose and seal these lists and indorse them, "lists of grand jurors," designating for what term of the court they were to serve, and to sign the indorsement, and deliver the lists to the judge in open court. Within thirty days before the next term the clerk is required to open the envelope and make a fair copy of the list of grand jurors and a fair copy of the list of the alternates, and give the same to the sheriff, who is required to summon the persons on the lists by giving to each of them notice to attend on the first day of the next term to serve as grand jurors. From these lists it is made the duty of the court to select the grand jury. If there shall not be a sufficient number of competent grand jurors and alternates present and not excused to form a grand jury, the court is authorized to compel the attendance of the absentees, or order bystanders to be summoned to complete the jury. It may for good cause, excuse any person summoned from serving, and may discharge any who are not competent. If, for any cause, the jury commissioners shall not be appointed, or shall fail to select a grand jury, or the panel selected shall be set aside, or the jury lists returned into court shall be lost or destroyed, the...