Jones v. State

• Decision Date: 16 July 1895
• Citation: 32 S.W. 81
• Parties: JONES v. STATE.
• Court: Arkansas Supreme Court

Page 81

32 S.W. 81

JONES v. STATE.

Supreme Court of Arkansas.

July 16, 1895.

Appeal from circuit court, Franklin county; Jeptha H. Evans, Judge.

Jesse H. Jones was convicted of murder in the first degree, and appeals. Affirmed.

Appellant was indicted April 2, 1894, at a special term of the Logan circuit court, for murder in the first degree. The indictment, omitting the caption, reads as follows: "Indictment. The grand jury of Logan county, in the name and by the authority of the state of Arkansas, accuse J. H. Jones of the crime of murder in the first degree, committed as follows, to wit: The said J. H. Jones, on the 18th day of February, 1894, in the county aforesaid, unlawfully, willfully, feloniously, and of his malice aforethought, and with premeditation and after deliberation, did kill and murder one Jesse Hibdon, with a certain gun which he, the said J. H. Jones, then and there had and held in his hands, the said gun being then and there loaded with gunpowder and leaden bullets, with intent him, the said Jesse Hibdon, to kill and murder, contrary to the statute in such cases made and provided, against the peace and dignity of the state of Arkansas. And the grand jury aforesaid, in the name and by the authority aforesaid, do further accuse J. H. Jones of the crime of murder in the first degree, committed as follows, to wit: The said J. H. Jones, on the 18th day of February, 1894, in the county aforesaid, unlawfully, willfully, feloniously, and of his malice aforethought, and with premeditation and after deliberation, did kill and murder one Jesse Hibdon with a certain hammer, which he, the said J. H. Jones, then and there held in his hands, by striking and by beating and bruising him, the said Jesse Hibdon, with the said hammer, with intent him, the said Jesse Hibdon, to kill and murder, contrary to the statute in such cases made and provided, and against the peace and dignity of the state of Arkansas. And the grand jury aforesaid, in the name and by the authority aforesaid, accuse J. H. Jones of the crime of murder in the first degree, committed as follows, to wit: The said J. H. Jones, on the 18th day of February, 1894, in the county aforesaid, unlawfully, willfully, feloniously, and of his malice aforethought, and with premeditation and after deliberation, did kill and murder one Jesse Hibdon, in some way and manner and by some means, instruments, and weapons, to the grand jurors unknown, with intent him, the said Jesse Hibdon, then and there to kill and murder, contrary to the statute in such cases made and provided, and against the peace and dignity of the state of Arkansas." To the indictment appellant files the following pleadings: (1) Motion to set aside indictment; (2) demurrer; (3) motion to quash. All of said motions were by the court overruled, and appellant excepted. Appellant then moved for a change of venue, which was by the court granted, and the case was sent to the Ozark district of the Franklin circuit court. When this case was called for trial in the Franklin circuit court, appellant filed the following pleadings: (1) Application for special judge (To this application appellee filed a response); (2) motion for continuance. Each of said motions was by the court overruled, and appellant excepted. Appellant here entered a plea of former conviction. To this plea appellee demurred, and said demurrer was by the court sustained. Appellant then entered a plea of not guilty.

The evidence in this case was circumstantial. It shows, in substance, that Charles Hibdon, Jesse Hibdon (for the murder of whom the appellant in this case was convicted), and the appellant (acting in the capacity of a cook for the Hibdons), on the 18th day of February, 1894, camped together, in a house in Logan county, in this state, and that, on the day following, the house in which they had stopped — a heavy log house — was entirely consumed by fire; that the Hibdons were missing, and have never been seen or heard of since by any of the witnesses who testified, among whom were the wife and mother of Charles Hibdon, from Paoli, in the Indian Territory, whence they came to Arkansas, with a lot of ponies to sell or trade for cattle, and where the Hibdons lived and were well known, and where the appellant, a stranger, engaged to accompany them to Arkansas, as a cook, for the sum of $20 per month. After the house was burned, the appellant took possession of the property of the Hibdons, consisting of the horses, a wagon, a saddle, the gun of Charles Hibdon, the gloves and leather cuffs of Jesse Hibdon, the red pocketbook of Charles Hibdon, with his name written in it, and various other articles of property, identified by the evidence on the trial as the property of Charles and Jesse Hibdon. The appellant also had in his possession a plain gold ring, which he admitted belonged to Charles Hibdon. In accounting for the disappearance of the Hibdons, the appellant made several inconsistent and conflicting statements. He first told that they had gone down into Scott county to sell some ponies. He afterwards told that they had fled from the United States marshal, who was after them for selling whisky in the Indian Territory. In his testimony on the trial in this case, the theory advanced by him, as to their disappearance, was that Charles Hibdon had killed Jesse, and had fled, having burned the house over his body. After the arrest of the appellant there were found in the ashes where the house was burned bones, some of which the evidence tended to show were the bones of a human body. Burned bones were also found in a creek near the burned house, and some between the house and the creek. When the appellant was arrested he had on his person, in the pocketbook of Charles Hibdon, $360.35, which he said consisted of money Charles Hibdon gave him when he left, and amounts for which he had sold some of his property after he left; and that Charles Hibdon had left all his property that he had there, in his possession and under his control, with directions to sell off everything except the saddle horse, and meet him in Dardanelle about the 13th or 14th of March. He stated that when he was asked about the ring he supposed it was Charles Hibdon's, as he had seen him wear one like it, and had seen him pull it off and put it in a box in the house. He admitted that he had told lies, in his former statements, as to the whereabouts of the Hibdons; that he found he was in a bad fix, and, having lied about these matters, it seemed like he had to keep telling lies. The court gave to the jury ten instructions, and refused one asked by defendant, to all of which given, and to the refusal to give the one refused, exceptions were saved properly. The jury returned a verdict of guilty of murder in the first degree. The appellant moved to set aside the verdict and for a new trial, which was refused by the court, to which the appellant excepted, tendered his bill of exceptions, and appealed to this court.

Oscar S. Miles and E. Hiner, for appellant. E. B. Kinsworthy, Atty. Gen., for the State.

HUGHES, J.

The motion for a new trial sets out 20 grounds, but not all of these are seriously relied upon in argument here for reversal, and we will discuss such only as we understand counsel to urge here as grounds for reversal.

First. The application for continuance upon the ground that, at the same term of the court at which appellant was put upon his trial for the murder of Jesse Hibdon, he had been convicted of the murder of Charles Hibdon, which was calculated to prejudice him on his trial at the same term of the court for the murder of Jesse Hibdon, was denied by the court. Applications for continuance are so largely in the sound discretion of the circuit court that this court will not control it, unless there has been a flagrant abuse of the court's discretion, that amounts to a denial of justice. Thompson v. State, 26 Ark. 323; Price v. State, 57 Ark. 167, 20 S. W. 1091. We are unable to say that there was such abuse of discretion in refusing the continuance in this case as manifestly operates as a denial of justice, and for which the judgment should be reversed. Loftin v. State, 41 Ark. 153.

The court overruled the appellant's demurrer to the indictment, and this is urged as error. We have examined carefully the indictment, and think it sufficiently charges the crime of murder in the first degree, though not in the most artistic and approved form. It fully advises the defendant of the charge he is called upon to answer, and fulfills in substance the requirements of our statute in reference to the sufficiency of indictments. Section 2075, Sand. & H. Dig provides: "The indictment is sufficient if it can be understood therefrom — First, that it was found by a grand jury of a county, impaneled in a court having authority to receive it, though the name of the court is not accurately stated; second, that the offense was committed within the jurisdiction of the court, and at some time prior to the finding of the indictment; third, that the act or omission charged as the offense is stated with such a degree of certainty as to enable the court to pronounce judgment, on conviction, according to the right of the case." Section 2076 provides: "No indictment is insufficient, nor can the trial judgment, or other proceeding thereon, be affected by any defect, which does not tend to the prejudice of the substantial rights of the defendant on the merits." Section 2090 provides: "The indictment must contain * * *; second, a statement of the acts constituting the offense, in ordinary and concise language, and in such a manner as to enable a person of common understanding to know what is intended." Section 2074, Sand. & H. Dig., provides that: "The indictment must be direct and certain as regards — First, the party charged; second, the offense charged; third, the county in which the offense was committed; fourth, the particular circumstances of the offense...