Jones v. State

• Decision Date: 27 January 1894
• Citation: 24 S.W. 1073,58 Ark. 390
• Parties: JONES v. STATE
• Court: Arkansas Supreme Court

24 S.W. 1073

58 Ark. 390

JONES v. STATE

Supreme Court of Arkansas

January 27, 1894

Appeal from Lonoke Circuit Court, JAMES S. THOMAS, Judge.

STATEMENT BY THE COURT.

The appellant, Harriett Jones, was indicted in the Lonoke circuit court, on the 7th day of January, 1893, for the crime of being accessory to the murder in the first degree of her husband, Lafayette Jones; the indictment being as follows to-wit: "The grand jury of Lonoke county, in the name and by the authority of the State of Arkansas, accuse Harriett Jones of the crime of 'accessory before the fact' to murder in the first degree, committed as follows, to-wit: That Millege Mitchell, Green Brewer and William Brooks, in the county and State aforesaid, on the 5th day of December, A. D. 1892, unlawfully, wilfully feloniously, with malice aforethought, with deliberation and premeditation, did kill and murder one Lafayette Jones, with a gun then and there loaded with gun powder and leaden balls and shot; and that the said Harriett Jones, in the county and State aforesaid, on the 1st day of December, 1892, before the said murder was committed in form aforesaid, unlawfully wilfully and feloniously did advise and encourage the said Millege Mitchell, Green Brewer and William Brooks, to do and commit the murder, in manner and form aforesaid, against the peace and dignity of the State of Arkansas." On the 18th of August, 1893, appellant was tried and convicted on said charge and sentenced to imprisonment in the penitentiary for a term of five years. Exceptions were duly taken and reserved to all points insisted upon.

Motion in arrest of judgment, "because the facts stated in the indictment do not constitute a public offense within the jurisdiction of the court," was filed and overruled. Motion for new trial was filed and overruled, the same being in words and figures as follows, to-wit: "1st. Because the verdict is against the law. 2nd. Because the verdict is against the evidence. 3rd. Because the verdict is against the law and evidence. 4th. Because the court erred in admitting the testimony of Green Brewer. 5th. Because the court erred in admitting certain portions of the testimony of Dr. J. M King. 6th. Because the court erred in admitting certain portions of the testimony of Maria Mitchell. 7th. Because the court erred in admitting certain portions of the testimony of Millege Mitchell. 8th. Because the court erred in excluding the testimony of Eugene Lankford. 9th. The court erred in permitting the prosecuting attorney, after the jury had been sworn to make true and perfect answers to such questions touching their qualifications as jurors in this case, to examine said jurors as to their qualifications in a case where the punishment was death, and as to their conscientious scruples in bringing in a verdict of guilty if the law and evidence justified them in doing so in such a case. 10th. The court erred in excluding Jack Clemens and W. N. Bransford jurors, who had been sworn to make true and perfect answers to such questions as may be asked them touching their qualifications as jurors in the case, and who had been examined by the prosecuting attorney, and found to be qualified jurors, except upon the questions propounded by the prosecuting attorney, to-wit, if they had any conscientious scruples that would preclude them from bringing in a verdict of guilty in a case where the punishment was death, if the law and evidence justified them in doing so, and the said jurors said that they had; thereupon the court excused them respectively, peremptorily, alone for the cause above stated. 11th. Because the prosecuting attorney in his closing argument was permitted (to) and did state and present to the jury that Maria Mitchell, the wife of Millege Mitchell, found in his trunk some "white stuff" which was proved to be strychnine, and urged that as one of the circumstances upon which the jury should base a conviction in the case against defendant, and because said prosecuting attorney was permitted (to) and did state and present that Millege Mitchell went to one Dr. King and told him that the defendant had sent him, Mitchell, to him, the said King, to get a "puke," for Lafayette Jones, and also urged and insisted upon the jury to take that fact and circumstance in connection with other facts and circumstances, as proof of defendant's guilt. 12th. Because of newly discovered evidence, as appears from the affidavit of Green Brewer, hereto attached and marked "A" and made a part of this motion."

The affidavit of Green Brewer, made a part of the motion for new trial, appears to have been made on the 21st August, 1893, and is to the effect that his testimony given on the trial of Harriett Jones, in so far as it implicated her in any manner in the murder of Lafeyette Jones, or to the effect that she had knowledge that the same was going to be committed, was in fact false, and was given as it was because he thought, and because he was told, that it thereby would go easier with him; Brooks, his co-defendant having been turned loose because he testified against him (affiant).Other necessary facts are stated in the opinion.

Judgment reversed and case remanded.

Thos. C. Trimble for appellant.

1. The indictment does not charge a capital crime, and it was error to allow the prosecuting attorney to examine jurors as to their scruples as to capital punishment. If the indictment did charge a capital offense, defendant was entitled to a copy of the indictment before trial. Mansf. Dig. sec. 2152.

2. The jury was not selected as provided by law. Ib. secs. 2222-3.

3. The indictment is defective in failing to charge that defendant "unlawfully, wilfully, feloniously and with malice aforethought, and with premeditation and deliberation," did advise and encourage the perpetration of the crime. Ib. sec. 1521; 24 Ark. 347.

4. The verdict is defective, and at variance with the indictment.

5. It was error to admit the testimony of Dr. King as to two private conversations with Millege Mitchell. They were hearsay and irrelevant.

6. Maria Mitchell's testimony as to defendants picture and the "white stuff" in her husband's trunk should have been excluded. 45 Ark. 132.

7. Eugene Lankford's testimony was admissible--hit was not privileged. 13 Johnson (N. Y.) 492; 42 N.W. 1063; 65 Miss. 179.

8. The venue was not proven. The verdict is not supported by the evidence.

James...