Humphrey v. State

• Citation: 86 S.W. 431,74 Ark. 554
• Parties: HUMPHREY v. STATE
• Decision Date: 25 March 1905
• Court: Arkansas Supreme Court

86 S.W. 431

74 Ark. 554

HUMPHREY v. STATE

Supreme Court of Arkansas

March 25, 1905

Appeal from Jefferson Circuit Court, ANTONIO B. GRACE, Judge.

Reversed and remanded.

S. J Hunt and Havis Nixon, for appellant.

The defendant should not have been compelled to accept or reject persons from a panel who the law says are not eligible. Kirby's Dig. §§ 4529, 4509. It was error to introduce the paper purporting to be the dying declaration of deceased. 70 Ark. 157; 2 Ark. 229; 39 Ark. 221. The questions propounded to witnesses, Adams and Wallace, were improper. 53 Ark. 394; 54 Ark. 25. It was error for the court to intimate his opinion of testimony given by a witness. 71 Ark. 113. It was error to refer to defendant's failure to testify. 58 Ark. 473; 65 Ark. 625; 123 Ill. 333; 72 Mich. 367; 84 Ind 563; 14 S.W. 603; 16 S.W. 543; 16 So. 490; 62 Ia. 108.

Robert L. Rogers, Attorney General, for appellee.

The dying declarations of deceased were properly admitted. 29 Am. & Eng. Enc. Law, 770; 77 Ind. 66; 8 Tex.App. 1; 4 Am. & Eng Enc. Law, 871.

OPINION

BATTLE, J.

Solomon Humphrey was convicted in the Jefferson Circuit Court of murder in the second degree. His punishment was assessed at twenty-one years in the penitentiary. He appealed to this court.

The September term, 1904, of the Jefferson Circuit Court, at which the defendant was convicted, commenced on the 19th of September, 1904. On that day the petit jury for that term was excused until October 3 following, and on October 8, the court adjourned until October 24, and on the 9th day of November following this cause was called for trial, and the defendant moved to discharge the petit jury, because the members thereof were not eligible for further service at that term; and the court overruled it. This motion was based on the statute which provides: "The term of service of any person summoned to serve on the petit jury in the circuit court shall be limited to four weeks, and no person serving for such time shall be eligible for further service during that term or the next succeeding term." Kirby's Dig. § 4529. Under this statute four weeks' actual service was necessary to render a person ineligible for further service during the term for which he was impaneled. In this case the jurors had not served four weeks, and were eligible.

Evidence was adduced tending to prove the following and other facts The person for the murder of whom the defendant was indicted was William Graeves. On the 23d of July, 1904, the deceased, Major Koonce, Solomon Humphrey and many others assembled near Linwood, in Jefferson County, in this State, where there was a dance. The musicians were seated in a wagon. While the dance was in progress Koonce climbed into the wagon, and some one pulled him out. He said he was drunk, and fell out. Be this as it may, he did fall, and arose and walked three or four steps, stopped and stood awhile as if thinking. At this time Humphrey approached him, and asked him if he was hurt, and he replied, "No." Humphrey insisted that he was, Koonce then drew a pistol, and commenced firing, and fired three times. About this time Humphrey said, as a witness expressed it: "He was going to break a 38 off in some of you negroes yet." When he said this, he drew a pistol. William Graeves, a deputy constable, then undertook to stop the shooting, when Humphrey fired a pistol two or three times. Others followed, and fifteen or twenty shots were fired. When Humphrey fired, Graeves cried out he was shot. He was mortally wounded, and died on the second day thereafter. The evidence tended to prove that Humphrey did the killing. Graeves, while laboring under the apprehension of impending death from the injury received, said that Humphrey shot him. J. B. Holmes, a physician, testified that he examined the wound closely, and that, in his opinion, it was made by a 38-calibre pistol ball." The defendant offered to prove by J. S. Goree, Z. Orto, O. W. Clarke, N. T. Williams and J. C. Jordan, five physicians, that they could not, after examining the wound made in the body by the firing of a pistol or gun, tell the exact size of the...