Hydrick v. State

• Decision Date: 18 March 1912
• Citation: 145 S.W. 542,103 Ark. 4
• Parties: HYDRICK v. STATE
• Court: Arkansas Supreme Court

145 S.W. 542

103 Ark. 4

HYDRICK v. STATE

Supreme Court of Arkansas

March 18, 1912

Appeal from Jackson Circuit Court; R. E. Jeffery, Judge; affirmed.

Judgment affirmed.

Stuckey & Stuckey and Ira P. Mack, for appellant.

1. The judgment should be reversed for misconduct of the jury in being improperly influenced in having and reading the article in a newspaper highly prejudicial to an impartial trial. Clark, Cr. Pro., § 179, p. 474; 59 S.E. 249; 86 P. 1100; Id. 889; 61 N.W. 179; 105 F. 371; 29 Ark. 248; 44 Ark. 118; 57 Id. 8; 5 Pac. Co. Rep. 236; 12 Phil 576; 71 Miss. 82; 12 P. 272; 37 Id. 207; 2 O. St 54; Kirby's Dig., § 2393-5.

2. Instruction No. 1, asked by the defendant, should have been given on the question of reasonable doubt. 89 Miss. 810; 57 Iowa 15; 2 Thompson on Trials, § 2495; 103 Ala. 94.

3. The verdict was determined by lot, and the testimony of Bob Dupin, which was not in rebuttal, was prejudicial.

4. The nunc pro tunc order amending the bill of exceptions should not have been entered. Kirby's Dig., § 4431, sub. 3; 87 Ark. 439; 86 S.W. 822; 102 Wis. 378; 28 So. 640; 30 Ala 188; 82 Id. 257; 3 So. 30; 120 Ala. 459; 24 So. 929; 1 Black on Judg. § 132; 93 Ark. 237; 31 N.E. 670; 52 O. St. 487; 56 Mo. 304; 67 Ala. 333; 162 Ill.App. 166.

Hal L. Norwood, Attorney General, and William H. Rector, Assistant, for appellee.

1. The bill of exceptions was properly amended by nunc pro tunc order. 78 Ark. 228; 25 Id. 588; 35 Id. 118; 93 Id. 168; 98 U.S. 145; 73 Ark. 315; 63 Id. 504; 45 Id. 165. Defendant was represented by counsel; it was his own fault that he was absent, and his absence was nonprejudicial. 73 Ark. 315; 63 Id. 504; 45 Id. 165.

2. The prima facie case of improper influence of the jury is overcome by the testimony. 44 Ark. 118; 57 Id. 8; 29 Id. 254; 95 Id. 428.

3. Instruction No. 1 was properly refused. 81 Ark. 20.

OPINION

FRAUENTHAL, J.

The defendant, I. P. Hydrick, was indicted for the crime of murder in the first degree, charged with killing one Lee Mercing on July 22, 1911. He was convicted of the crime of murder in the second degree, and his punishment fixed at eleven years' imprisonment in the State penitentiary. In his motion for a new trial, the defendant assigned a number of errors on account of which the judgment of conviction should be reversed, but on this appeal his counsel have only pressed the following specially upon our attention: (1) On account of the misconduct of the jury, resulting in their being improperly influenced to his prejudice; (2) because the verdict had been decided by lot; (3) because the court erred in refusing an instruction asked by him.

The defendant was engaged in a small grocery business in the city of Newport, and the deceased resided a few miles from that city on a farm owned by one Edwards. About two days before the homicide was committed, deceased and Edwards were in the city of Newport, and on that occasion defendant and deceased had a difficulty, in which the State claimed that defendant had drawn a knife upon deceased, and defendant claimed that deceased had assaulted him with a steel axle. The defendant had a prosecution instituted before a justice of the peace against deceased, growing out of said difficulty, and the day of trial was set for the following Saturday. On that day deceased was tried and discharged.

The testimony on the part of the State tended to prove that on the afternoon of the same day defendant borrowed a double-barreled shotgun and endeavored to buy some buckshot from a dealer in ammunition, but, the dealer not having buckshot, he obtained other large shot and took the loaded gun to his store. About 9 o'clock of that night, the deceased passed the defendant's store and stopped in front of it for a moment, looking in, when the defendant shot him with the gun, from the effects of which he died in probably twenty or thirty minutes thereafter. The testimony on the part of the State tended to prove further that at the time of the shooting deceased had walked along the sidewalk in front of the store with his hands extended by his side, and nothing in them, and that he was making no demonstration of any kind at the time the fatal shot was fired.

The testimony on the part of the defendant tended to prove that on the day of the killing he met deceased, who struck him with his fist, without excuse or justification, and that he was later told that deceased had threatened to injure him, and on that account he had secured the gun. The defendant testified that at the time of the killing deceased had come into the front part of the store with pistol in hand, and by word threatened and by act made demonstration to kill him; that he then fired the gun to protect himself from deceased.

Immediately after being shot, the deceased crossed the street to a store on the opposite side and there died. On the part of the defendant, there was testimony tending to prove that while deceased was lying on the outer porch of said store a pistol was found near him, and presumably his pistol. The State introduced testimony tending to show that no pistol was seen at the store where the deceased had fallen.

We have here narrated very briefly the testimony showing the manner in which the homicide was committed, and do not deem it necessary to set it out in further detail. We have fully and carefully examined all the testimony, and we are of the opinion that there was evidence adduced upon the trial which was sufficient to sustain the verdict returned by the jury.

In the original transcript which was lodged in this court, it appears that in his motion for a new trial the defendant assigned as one of the grounds therein that from the misconduct of the jury he had not received a fair and impartial trial. He stated in said motion that after the case had been finally submitted to the jury for the rendition of their verdict, and while they were deliberating thereon, the jurors read an article in a newspaper published in the city of Newport. This article was set out, and it appears therefrom that it was a narration of the proceedings at the trial of this case, and in effect stated that the State had made out against the defendant a very strong case of murder; and that, while the jury had not as yet agreed upon a verdict, it was the general opinion that the defendant would be convicted of murder in the second degree Without detailing the contents of this article, it is sufficient to say that it is conceded by the State's attorney that the reading thereof by the jury while deliberating on the verdict made out a prima facie case of improper influence and misconduct, calling for a new trial. Attached to the motion for new trial was the affidavit of one W. D. Sprigg, the bailiff in charge of the jury, indicating that a juror had read said article.

Thereafter, the State's attorney sued out a writ of certiorari from this court in order to correct the record by obtaining a nunc pro tunc order of the circuit court showing that upon the hearing of the motion for new trial evidence was adduced by the State showing that no juror had read said article, and that the jury was subjected to no improper influence, and was guilty of no misconduct. Thereupon, the prosecuting attorney filed in the circuit court a petition for a nunc pro tunc order to correct said bill of exceptions and record in this particular, by having this omitted evidence incorporated therein. In his petition, the prosecuting attorney stated that at the hearing of said motion for new trial there was introduced the testimony of four jurors and of two bailiffs, one of whom was said Sprigg, whose affidavit was attached to the defendant's motion for new trial. The testimony of each of these witnesses was set out in full in said petition. To this petition the defendant filed a response, in which he admitted that the testimony of said witnesses set out in the petition for a nunc pro tunc order had been taken upon the hearing of the motion for new trial, and that such testimony was correctly set out in the petition. The response was signed and duly verified by the defendant, who appeared in open court, and was then notified that the hearing of the petition would be set for a day then named, and he and his attorneys were directed to then be present.

It appears that the defendant was out upon bail pending the appeal which he had taken to the Supreme Court. On the day set for the hearing of the petition, defendant did not appear, and the court set the hearing thereof for another day, notifying defendant's attorneys and directing them to have him present on that day. On that day the defendant again failed to appear, and the court ordered the issuance of an attachment for defendant, and set the hearing for another day. On the day thus set for the hearing of the petition, defendant failed to appear and the sheriff reported that he could not be found in the county, but the attorneys for defendant were present in court. Thereupon the court proceeded to hear said petition for a nunc pro tunc order. It found that at the hearing of the motion for new trial the testimony of the four jurors and two bailiffs was given relative to the alleged misconduct of the jury, and that the evidence given by them was correctly set out in said petition filed by the prosecuting attorney, and that this evidence was a part of the proceedings actually had in the case, and should have been incorporated in the bill of exceptions, from which it was inadvertently omitted. Thereupon the court ordered and adjudged that the record be amended in that particular, and entered a nunc pro tunc order to that effect.

It is urged by counsel for defendant that the court erred in making said nunc pro tunc order, for the reason that when the bill of...