Jackson v. State

• Decision Date: 26 February 1912
• Citation: 145 S.W. 559,103 Ark. 21
• Parties: JACKSON v. STATE
• Court: Arkansas Supreme Court

145 S.W. 559

103 Ark. 21

JACKSON v. STATE

Supreme Court of Arkansas

February 26, 1912

Appeal from St. Francis Circuit Court; Hance N. Hutton, Judge affirmed.

Judgment affirmed.

Carmichael Brooks & Powers, for appellant.

1. The statement of the deceased to the coroner, Todd, was not admissible because it does not appear that it was given in the consciousness of imminent dissolution. Wigmore on Ev §§ 1439, 1440, 1441, 1442; 75 Ark. 142; 68 Ark. 355; 63 Ark. 382; 58 Ark. 47; 2 Ark. 229. The fact that it was sworn, to added nothing to its admissibility. Dying declarations are only admissible for the purpose of identifying the person who committed the murder and the circumstances surrounding the cause of the act. Wigmore on Ev., § 1434. While it was for the court to determine whether or not the mind of the declarant was in such condition as to make of it a dying declaration, it was for the jury to find the truth of the declaration; and, such being the case, the jury were entitled to have the statement just as it came from him, and of this the written statement was the best evidence. 19 S.W. 907; 172 Ill. 582; 20 So. 727, 728; 48 La.Ann. 1309; 3 Words & Phrases, 2298; 6 P. 56; Wigmore on Ev., § 1450; 82 Ark. 327; 20 Ark. 36.

2. The court in holding that the jurors Fisher and Fussell were competent, thereby forcing him to challenge them peremptorily, erred to appellant's prejudice. 69 Ark. 324.

3. The court erred in excluding evidence of threats made by McIntosh, the purpose of such testimony being to show the state of mind of appellant at the time he did the shooting. This state of mind it was important to show for two reasons: (1) to show a motive or lack of it, and (2) it explains the state of mind of defendant and shows why he shot deceased. Wharton on Homicide, (3 ed.) § 359 p. 574; 54 Ark. 601; 67 Ark. 600, 603; 84 Ark. 121.

4. The evidence fails to show motive, either directly or indirectly; it does not show malice, premeditation and deliberation, but it does show that appellant committed the act in the belief that he was acting under circumstances which appeared to justify his acting in his own proper self-defense.

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

1. The testimony of the witness Todd, giving the substance of the dying declaration, was properly admitted. It was for the trial court to decide from, the evidence before him whether or not the declarant believed, at the time he made his statement, that death was impending, and the court's finding on that point will not be disturbed unless there was an abuse of discretion. 38 Ark. 495; 58 Ark. 47; 68 Ark. 355; 88 Ark. 579. It was for the jury to determine the credibility of the statement. 81 Ark. 417. The testimony was admissible as given orally, notwithstanding the deceased's statement was taken down, in part at least, in writing. 82 Ark. 324; 84 Ark. 99; 95 Ark. 172.

2. The jurors, Fisher and Fussell, were competent. 66 Ark. 53; 79 Ark. 131.

3. There was no error in excluding evidence of threats. Uncommunicated threats are only admissible as tending to throw light on who was the probable aggressor, where that question is in dispute. 82 Ark. 595; 69 Ark. 148; 72 Ark. 436. If the undisputed evidence shows that the person making the threats was not the aggressor, such threats are not admissible. 84 Ark. 121.

As to communicated threats made by McIntosh, since the bill of exceptions shows that the jury were told of these threats, and appellant made no effort to make the testimony with reference thereto more explicit, he is in no position to complain. 101 Ark. 439; 73 Ark. 407.

OPINION

MCCULLOCH, C. J.

Appellant was convicted of murder in the first degree for killing one Noah Powell, the killing being admitted, and the only defense is that it was done under circumstances which were sufficient to cause appellant to believe. without negligence, that it was necessary for him to slay in self-defense.

The principal ground urged for reversal of the cause is that the court erred in its ruling as to the competency of two jurors. One of them, Fisher, stated, on his examination, that a nephew of deceased lived near him, and told him about the case, but was not a witness, and all that was said was hearsay. When asked if he had formed any opinion, from what that person told him, as to the guilt or innocence of appellant, he answered: "Yes, sir, if a man could consider his talk facts." He stated further that he understood at the time that the nephew of deceased, was not present at the difficulty, and was speaking from hearsay, and that he (the juror) could go into the jury box and disregard the opinion which he had and try the defendant according to the law and the evidence as delivered to him there, and he also stated that he had no bias nor prejudice for or against the defendant. On cross examination by appellant's counsel, he stated that, at the time the nephew undertook to relate the facts, he did not understand that the latter purported to know the facts in the case except by hearsay. He was asked if the opinion he had formed would "take strong evidence to remove it," and "if it was a fixed opinion in his mind," to which he replied in the affirmative. The court ruled that the juror was competent.

Another juror, Fussell, made substantially the same statements, except what he had heard was rumor, without mentioning the names of any persons to whom he had talked, and he also stated that he had no bias nor prejudice against the defendant, and that whatever opinion he then had was based on rumor and would not control him in the face of the evidence adduced at the trial.

Appellant challenged both the jurors and during the course of making the jury exhausted all of his peremptory challenges.

Taking the whole of the statements of these two jurors, the effect is that they had formed opinions based merely upon rumors, that they had no bias nor prejudice for or against the accused, and that they could try the case entirely in accordance with the evidence adduced at the trial. Stress is laid by counsel upon the fact that the jurors, in response to questions propounded to them on cross examination, said that the opinion, though based on rumor, was fixed, and they insist that this statement, of itself, necessarily implied bias, which is not contradicted by the positive statements of the jurors that they had no bias or prejudice. Very little in the discussion of this question can be added to Judge RIDDICK'S two opinions in the cases of Hardin v. State, 66 Ark. 53, 48 S.W. 904, and Sullins v. State, 79 Ark. 127, 95 S.W. 159, where the law on this subject is exhaustively treated. Those decisions, with others, place this court firmly on the ground that a certain amount of discretion must be indulged to the trial court in passing upon the state of mind of a juror under examination, and that an opinion based merely upon rumor does not, of itself, disqualify a juror. The use of the word "fixed" is merely a relative term, which may or may not be used by different persons intending to convey the same idea, and does not necessarily imply fixed bias. The following language of Judge RIDDICK in the Hardin case is appropriate, where he said:

"Now, it is a matter of common knowledge that we all form opinions from rumor, and from reading newspapers, which we retain until we hear another version of the matter, or until time, or forgetfulness, or something, has removed them from our minds. If one, called for examination as a juror, should have an opinion of that kind concerning the case, however slight the importance he attached to it, he might yet truthfully say that. if put on the jury, it would remain on his mind until he heard something to the contrary; in other words, that it would take evidence to remove it. It does not by any means follow that he would, if placed on the jury, be influenced by such opinion, or allow it to take the place of evidence."

Nor is it different where the juror uses a word of emphasis by saying that his opinion was "fixed"; for, after all, if it was an opinion or impression which required some testimony to remove, it would be to that extent fixed in his mind, and the question, after all, would be whether it was based upon purported statements of facts by witnesses or merely upon rumor. It matters not to what extent the opinion is fixed upon the mind of the juror, if it is based entirely upon rumor,...