Jones v. State
| Decision Date | 21 December 1889 |
| Citation | 12 S.W. 704,52 Ark. 345 |
| Parties | JONES v. STATE |
| Court | Arkansas Supreme Court |
APPEAL from Benton Circuit Court, J. M. PITTMAN, Judge.
Samuel D. Jones was tried on an indictment charging him with the murder of Henry W. Keltner. He was convicted of murder in the firs degree and appealed.
Judgment affirmed.
Marshall & Coffman, for appellant.
1. Review the evidence and contend that the verdict was not sustained by it, but was contrary to it. No motive whatever was shown for the crime.
2. It was error to exclude the dying statement of deceased. 39 Ark 225.
3. It was error to overrule the motion for continuance, and allow the State to admit that the absent witness would, if present swear to the matters set up. 50 Ark. 161.
4. The court in its charge virtually told the jury they must convict of murder in the first degree or acquit. This was error. 43 Ark. 289; Hopt v. People, 4 S.Ct. Rep; Thomps. on Trials sec, 2184; 2 Bish. Cr. Pro., sec. 642; 8 Ohio St. 194. 6; 37 Ark. 435; 50 Ark. 506; 38 id., 310; 30 id., 328; 10 S.W. 233; 25 Ark. 405.
W. E. Atkinson, Attorney General, and T. D. Crawford, for appellee.
1. There is evidence to sustain the verdict. 11 Ark. 463; 34 id., 737; 35 id., 652; 16 id., 592; 29 id., 166.
2. There was no evidence whatever of any crime less than murder in the first degree. He was guilty of murder in the first degree, or innocent. And it was not error to refuse to charge the jury as to the lower grades of homicide. 50 Ark. 508; 37 Ark. 435; 38 id., 310.
3. The dying statements properly excluded, as they were mere expressions of opinion. 39 Ark. 227.
4. The refusal to grant a new trial was in the sound discretion of the court. There was no show of diligence. 2 Thomps. on Trials, sec. 2767; Hill New Tr., p. 393, sec. 35; 5 S. & R., 42; 13 Ga. 358; 7 Clarke, 255; 13 Ark. 105; ib., 362.
The first, second and third grounds of appellant's motion for a new trial are that the verdict is contrary to the law and evidence. The fourth is that the court neglected to properly instruct the jury as to all the different degrees of homicide. The fifth, that the court erred in refusing to give instructions asked by defendant, numbered from one to five, inclusive. The sixth, because of newly-discovered evidence. Many matters, not presented by the record, have been argued by counsel and considered by the court.
As to the first, second and third grounds of the motion, we think the verdict warranted by the evidence and the law as given by the court. Nor was it error to refuse the first, fourth and fifth instructions asked by defendant, in view of the charge actually given. The sixth ground for new trial was matter resting in the sound discretion of the court, and no abuse of such discretion appears. The fourth ground of the motion challenges the correctness of the charge in that it failed to state the law applicable to the lower degrees of homicide. The charge should be based upon the evidence, and it is difficult to imagine how instructions as to murder in the second degree or manslaughter could have been given when all the evidence was to the effect that the killing was assassination of Keltner, at night, by his fireside, by some one who fired through a crack from without. The trial court should in no case indicate an opinion as to what the facts establish; but in properly giving the law the court must of necessity determine where there is any evidence at all justifying a particular instruction. See Fagg v. State, 50 Ark. 506, 8 S.W. 829, and cases cited.
One of the matters argued, though not raised in proper form, is the alleged error of the court in excluding the testimony offered as to the dying declaration of Keltner. The witness says that some hours after the shooting Keltner said that Samuel Hall shot him.
A mere expression of opinion by the dying man is not admissible as a dying declaration, and it is immaterial whether the fact that the declaration is mere opinion appears from the statement itself, or from other undisputed evidence showing that it was impossible for the declarant to have known the fact stated. If, upon any view of the evidence, it is possible for the declarant to know the truth of what he states, his declarations, being otherwise competent, should be received and considered by the jury in the light of all the evidence.
In the case at bar it was a physical impossibility for Keltner to have seen who shot him, and the consciousness of wrong done in the killing of Hall's father made him swift to suspect Hall of the commission of this crime.
The facts in the case of Nick Walker v. State, 39 Ark. 221, were very similar to those now before the court, and the declarations in that case were held to be properly admitted.
The court divided, however, upon the question as to whether it was possible for the declarant to have seen Walker, and a majority sustained the trial court in the view that it was possible.
I am unable to concur in the opinion of the court in this case; but think that the judgment should be reversed and a new trial awarded.
The charge of the court was entire; not as is usual, divided into a number of instructions. It contained reference alone to the law applicable to murder in the first degree. It announced that the defendant was charged with murder in the first degree; and instructed the jury that if they found him guilty, as charged, they would return a verdict of guilty of murder in the first degree.
No jury of good intelligence could have understood the charge in any other way than as directing a conviction for murder in the first degree or an acquittal. True, there was no language expressly prohibiting a conviction for a lower grade of homicide; but substantially, the direction to convict of murder in the first degree or acquit, implied a prohibition against a conviction of a lower grade of offense. In my opinion this court should treat the charge as saying what...
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