Johnson v. State

• Decision Date: 02 January 1911
• Citation: 133 S.W. 596,97 Ark. 131
• Parties: JOHNSON v. STATE
• Court: Arkansas Supreme Court

133 S.W. 596

97 Ark. 131

JOHNSON v. STATE

Supreme Court of Arkansas

January 2, 1911

Appeal from Sebastian Circuit Court; Daniel Hon, Judge; affirmed.

Judgment affirmed.

W. S Chastain, for appellant.

The statute providing for a drawn jury in felony cases is mandatory, and the denial of that right in this case was reversible error. Appellant was entitled to select from or exhaust the whole panel of 24 jurors selected by the jury commissioners. Kirby's Dig. §§ 4257, 4528; Id. §§ 2347, 3448;; 12 Enc. of Pl. & Pr 525; 39 L. R. A. 488; 50 Ark. 492; 9 P. 955; 67 Ark. 365.

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

Twelve of the regular panel being engaged in another case, the court exercised a proper discretion in directing the panel to be filled from bystanders. Moreover, since appellant exercised only six of his twenty challenges, he will not be heard now to complain. 50 Ark. 492; 93 Ark. 168; 91 Ark. 582.

OPINION

MCCULLOCH, C. J.

Appellant, Mack Johnson, killed his wife, Queenie Johnson, on the streets of Fort Smith, June 10, 1910, by cutting her with a knife, and he was indicted for murder in the first degree, and on trial by a jury was convicted of that crime and sentenced to be hanged. He was unable to employ counsel, and the court appointed two attorneys, who conducted his defense.

There was no denial of the fact that he killed his wife. The deed was done in the presence of several witnesses. His wife had deserted him, and appellant had accused her of infidelity and repeatedly threatened to kill her. He approached her standing on a street corner in company with another woman, and the three got on a street car together. In a moment after they got off the car he began cutting her, inflicting several wounds, from which she died immediately. He then fell or threw himself to the ground and drank from a bottle of carbolic acid, which he had somewhere about his person.

Appellant testified in his own behalf, and stated that he remembered "slashing" at his wife, but could not remember whether he cut her or not--said he was heavily under the influence of morphine, which he had been taking all day. He testified further that his skull had been fractured twice, and that since then he had had "spells," and took morphine on the advice of a physician to "keep down the spells."

It appears that the only defense insisted on at the trial was that of insanity. The court instructed the jury correctly on all the degrees of homicide, and also on the law of insanity as a defense. No objections were made to any of the instructions, and no objection is made to any of them here by appellant's counsel. The evidence abundantly sustains the verdict, and we discover no error in the instructions of the court. No objections were made to the admission of testimony.

The only assignment of error is as to the selection of the jury. When the case was called for trial, twelve of the jurors of the regular panel of the petit jury were deliberating on another case which had been submitted, and the court, over appellant's objection, directed that the trial proceed, and caused twelve jurors to be summoned from the bystanders to complete the panel, and the trial jury was drawn and selected from these and twelve other jurors of the regular panel. Appellant exercised only six of his peremptory challenges in the selection of the jury.

In York v. State, 91 Ark. 582, 121 S.W. 1070, a felony case, where the trial court had, without sufficient legal grounds, excused five jurors from the regular panel, and caused bystanders to be summoned to take their places, the defendant accepted the jury without exhausting his challenges, and this court ruled that the error of the trial court was not prejudicial. Quoting from a previous decision, this court held that an accused has the right to the service of no particular juror, and that "when he has voluntarily taken his chance of acquittal at the hands of jurors whom he might have rejected, he must abide the issue." Mabry v. State, 50 Ark. 492, 8 S.W. 823. We perceive no sound reason why the same rule should not prevail in capital cases.

In Bowman v. State, 93 Ark. 168, 129 S.W. 80, a capital case, the regular panel of jurors was exhausted after eleven jurors had been selected, and the court caused only one talesman to be summoned instead of two, as required by the statute. The court decided that the error was not prejudicial for the reason that the accused accepted the juror without exhausting his challenges.

After a careful examination of the record, we are of...