Jackson v. State

• Decision Date: 28 February 1910
• Citation: 126 S.W. 843,94 Ark. 169
• Parties: JACKSON v. STATE
• Court: Arkansas Supreme Court

126 S.W. 843

94 Ark. 169

JACKSON v. STATE

Supreme Court of Arkansas

February 28, 1910

Appeal from Ouachita Circuit Court; George W. Hays, Judge; affirmed.

Affirmed.

H. S Powell and Daniel Taylor, for appellant.

1. Under the circumstances of this case there has been an abuse of that discretion vested in trial courts with reference to continuances. The testimony of the absent witness was material in the identification of the hog. A continuance had been granted to the State to procure the attendance of a witness to identify the animal, and, considering the age and ignorance of the defendant, and the distance he lived from the town where his counsel resided, due diligence is shown in the efforts put forth to procure the attendance of defendant's witness. 71 Ark. 180; 22 Ark. 164; 21 Ark 460; 50 Ark. 161.

2. The verdict is contrary to the evidence. The burden is on the State, not only to overcome the presumption of innocence, but also to establish the defendant's guilt in each material eleement beyond a reasonable doubt. It is in proof that appellant owned "a big bunch" of hogs, some of which were of the same general description as those of McAnulty; therefore a motive for theft is not shown. Seth McAnulty says the hog he lost was a deep red sow, about eleven months old, which might have had a few black spots over her about the size of a dime, while J. W. McAnulty says it was a blood red sow, ten or eleven months old. The State's other witness, Lula Banks, says that the hog killed was "a sandy red hog, that had nearly as much white on it as red." She also states that he cut off the ears and burned the hair. Defendant states that the hog he killed was one of his own, that it was a "reddish hog with white spots over it; that he did not cut off the ears nor burn the hair, but on the contrary that he showed the hair to the officer who arrested him and to Mr. McAnulty, the owner of the missing animal, and this statement was not contradicted, although made in McAnulty's presence. 70 Ark. 386; 148 N.Y. 648; 34 Ark. 632; 13 Ark. 105; 67 Ark 155; 67 Ark. 163; 70 Ark. 30; 41 N.E. 588; 74 Ark. 491; 153 N.Y. 10.

3. The instruction No. 3 is erroneous in not requiring the false testimony to be with reference to some material fact, before the jury would be authorized to disregard it, and in making it their positive duty to disregard it. 68 Ark. 336; 56 Ark. 244; 72 Ark. 436.

4. The court erred in his exhortation to the jury to agree upon a verdict, after they had twice reported that they were unable to agree, the same having the effect of coercing the jury into returning a verdict. 74 Ark. 431; 60 Ark. 45; 58 Ark. 277; 46 Mich. 623; 10 N.W. 44; 14 S.W. 538.

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

1. A defendant is not entitled to a continuance as a matter of right upon the filing of an application in proper form. Such an application is addressed to the sound discretion of the trial judge; and when he denies the motion, this court will not reverse his judgment unless there has been a manifest abuse of that discretion, amounting to a palpable denial of justice and an arbitrary and capricious exercise of power. 26 Ark. 323; 54 Ark. 243; 41 Ark. 153; 51 Ark. 167; 67 Ark. 543; 34 Ark. 26; 76 Ark. 290; 70 Ark. 521; 71 Ark. 62.

2. While it may be conceded that the State's testimony was not as strong, convincing and conclusive as it might have been, yet there is evidence to support the verdict, and this court will not reverse where there is any evidence to support the verdict. 13 Ark. 236; 17 Ark. 327; 19 Ark. 671; 24 Ark. 251; 23 Ark. 131; 33 Ark. 196; 46 Ark. 141.

3. There is no error in the third instruction. It does not come within the rule announced in the cases cited by appellant.

4. There is no error in the judge's admonitions to the jury with reference to trying to reach a verdict; no element of coercion. He made it plain to them that what he had said should not influence their verdict one way or another. 70 Wis. 448; Thompson on Charging Juries, § 58; 35 Mich. 56; 55 Ga. 53; 60 N.H. 472.

MCCULLOCH, C. J.; WOOD and HART, JJ., dissent.

OPINION

MCCULLOCH, C. J.

This is an appeal from a judgment of the circuit court of Ouachita County, convicting John Jackson of the crime of grand larceny, alleged to have been committed by stealing a hog, the property of one McAnulty. The first ground for reversal urged is that the court erred in overruling defendant's motion for continuance. He moved the court to grant a continuance in order to procure the attendance of a Mrs. Massey, who would have testified, if present, that she knew the hog which was killed by defendant, and knew that it was defendant's hog, and that she purchased from him a part of the meat. Defendant was indicted and arrested during the spring term, 1909, of the court, and by agreement of the prosecuting attorney the case was continued until the fall term of the court. It came up for trial during the first week of the October term, and on motion of the prosecuting attorney it was postponed until the second week, and it was then that defendant presented his motion for continuance. He stated therein that he first caused to be issued a subpoena to the sheriff of Ouachita County, which was returned non est; that he then learned that the witness was in Saline County, and on October 29, 1909, sent a subpoena to Saline County, which was also returned non est; that he had since learned that she was in Jefferson County, to which county he had also sent a subpoena on October 29, which has not been returned. The subpoena to the sheriff of Ouachita County was issued on October 25, 1909.

In an unbroken line of cases it has been held by this court that motions for continuance in both civil and criminal cases are addressed to the sound discretion of trial courts, and that the court will not reverse a case on account of a failure to grant a continuance unless there has been a manifest abuse of discretion. The defendant was under indictment and arrest for six months before the trial, yet he showed no excuse for not ascertaining the whereabouts of the absent witness. No diligence at all is shown, and we can not say that the trial court abused its discretion. It does not appear why the subpoena was not issued for Mrs. Massey at an earlier date, nor what effort defendant had made during the time he was under indictment to ascertain the whereabouts of the witness and procure her attendance. The burden was on him to show those things, in order to obtain a postponement of the trial.

It is earnestly argued that the testimony is insufficient to sustain the verdict, in that the hog alleged to have been stolen is not fully identified as the hog which defendant killed. Defendant admits killing a hog at the time alleged, and selling a portion of the meat, and using the rest of it, but claims that it was his own hog. The question in dispute is whether or not the hog killed by defendant was the property of the prosecuting witness, McAnulty. McAnulty testified that he had two Jersey sows, one a large red, sandy colored sow, and the other a small red sow, that ranged around Benson's mill in Ouachita County, and that the smaller one failed to come up about the last of November and disappeared suddenly from the range at that time. He lived about one mile from Benson's mill, and defendant lived at or near the mill. McAnulty described the animal as being a red Jersey sow with black spots on her about the size of a dime, was about eleven months old and was pregnant, would weigh about 75 or 100 pounds when dressed, and was marked with a swallow fork in the right ear and split in the left ear.

Lula Banks, a young negro woman, who lived in the house with defendant at the time and cooked for him, testified that defendant killed a hog about that time which she described as "a kind o' reddish or sandy sow" with spots on it, and that she helped dress the hog, and saw that it was a pregnant sow. She testified that defendant tolled the sow into the yard, and then shot it, and, after dressing it, put the hair into a small tin bucket and took it to the fireplace and burned it, cut off the ears and had the head cooked first, sold a part of the meat to Mrs. Massey, and put the rest of it in a box under the table. She said also that the hog which defendant killed ranged around Benson's mill with a larger red one, and in another part of her testimony she said that another little red hog ranged there with them.

Now the two witnesses, McAnulty and Lula Banks, give the same general description of the sow except that they...