Jordan v. State

• Decision Date: 12 January 1920
• Docket Number: 111
• Citation: 217 S.W. 788,141 Ark. 504
• Parties: JORDAN v. STATE
• Court: Arkansas Supreme Court

217 S.W. 788

141 Ark. 504

JORDAN v. STATE

No. 111

Supreme Court of Arkansas

January 12, 1920

Appeal from Drew Circuit Court; Turner Butler, Judge; affirmed.

Judgment affirmed.

A. A Poff, P. S. Seamans and X. O. Pindall, for appellant.

1. The verdict is not supported by the evidence. The evidence is overwhelming that the deceased was the aggressor and completely to blame for his death and that he made a murderous assault on defendant.

2. It was error to refuse a change of venue, and the court abused its discretion in refusing. The petition and supporting affidavits were made according to law and the supporting witnesses were credible.

3. The court erred in allowing the State to ask defendant and requiring him to answer that he had been convicted of desertion from the United States Army. 70 Ark. 610; Underhill on Ev., § 246.

4. It was reversible error to give instruction No. 29 for the State on the law of abandonment of a combat. 63 Ark. 286.

5. No 27 for the State was also error, as it improperly declared the law of circumstantial evidence.

6. The instructions to which defendant was most entitled were refused and nowhere covered. 64 Ark. 147.

7. The motion to discharge the panel should have been sustained. 10 Otto 322.

John D Arbuckle, Attorney General, and Robert C. Knox, Assistant, for appellee.

1. The question of abandonment of the combat and defendant's theory was submitted to the jury on proper instructions, and the jury by their verdict have settled the matter and the evidence supports the verdict.

2. The change of venue was properly denied. No proper showing was made. The witnesses were not shown to be credible persons. Kirby's Digest, § 2318. An order overruling a motion for change of venue on appeal is conclusive unless it appears the court abused its discretion. 98 Ark. 139; 85 Id. 536; 121 Id. 87; 103 Id. 70; 80 Id. 360. See also 85 Id. 514; 100 Id. 218; 125 Id. 597.

2. There was no error in the cross-examination of defendant as to his desertion. 75 Ark. 548; 114 Id. 239; 74 Id. 397; 100 Id. 199; 103 Id. 87; 100 Id. 321; 106 Id. 362.

3. There were no errors in the instructions. 104 Ark. 397; Bost v. State, 140 Ark. 254; 114 Ark. 398; 100 Otto 322.

OPINION

HUMPHREYS, J.

Appellant was indicted in the Drew Circuit Court for murder in the first degree for killing Sandy Haskell.

When the Drew County Circuit Court convened on the second Monday in September, 1919, a motion was filed in behalf of appellant to discharge the regular panel of the grand jury upon the ground that the African race had been discriminated against by the jury commissioners in the selection of a grand jury, in that no negroes were selected to serve. In response to the ground set forth in the motion, the jury commissioners gave testimony to the effect that they selected the jury with a view to getting electors of approved integrity, sound judgment and reasonable information, without regard to race or color. Over the objection and exception of appellant, the motion was overruled by the court.

Appellant then filed a petition for a change of venue, upon notice and in form required by law. Peter Phillips, William Henderson and John C. Jackson were the affiants to the petition. Their credibility as supporting witnesses was tested by an examination before the court concerning their knowledge of the prejudice existing in the minds of the inhabitants of Drew County against appellant. The sum total of their evidence was that they had heard a few people in Baxter, Blissville, Cominto, Monticello, Collins, Selma and Tillar express the opinion that since appellant had returned from France he was an upstart, did not care what he did and should be sent to the pen. It was admitted that the qualified electors in Drew County numbered 4,114, and that five-sixths of the qualified electors live in territory not visited by said affiants. Over the objection and exception of appellant, the court declined to grant a change of venue, and the cause proceeded to a hearing, which resulted in a conviction for murder in the second degree and a sentence to the State penitentiary for twenty-one years. From the judgment of conviction and sentence, an appeal has been duly prosecuted to this court.

Appellant, a negro twenty-nine years of age, served in the army in 1917-18 and '19. In January, 1918, he was convicted by a court-martial for desertion. After appellant's return to Drew County, on the morning of July 21st, he went in company with Homer Lewis, a boy fourteen years of age, to the Dabney place to hunt his father's horses. While on the place, near Will Graham's home, Sandy Haskell, a younger and larger negro, appeared with a shotgun and began to berate and threaten to kill appellant and his father, charging appellant with having mistreated and drawn a gun on him a few days before. Appellant denied having abused or assaulted Sandy, assumed a conciliatory attitude toward him, and during the controversy succeeded in getting behind a nearby tree. Sandy continued to abuse and threaten appellant, going to the extent of challenging him to draw his gun and come from behind the tree. At this juncture there is a conflict in the testimony on the part of the witnesses for the State and those for appellant. Upon the part of the State, Jessie Graham testified that she heard a shot which was fired after Sandy Haskell had started away from appellant in the direction of his home; J. D. Whitacre that he heard the shot, immediately turned his head and observed appellant holding a pistol around the tree and Sandy running from him (appellant) toward the witness; Dr. A. S. J. Collins, a graduate physician, experienced in surgery, that he examined the dead body of Sandy Haskell and found that death resulted from a gunshot wound that severed a large artery in the leg; that the ball from the gun entered from the back part of the right leg and came out just to one side of the knee cap.

The witnesses upon the part of appellant testified that when appellant fired the fatal shot, Sandy Haskell was pointing his gun in the direction of appellant, abusing, threatening to kill and challenging him to draw his gun and come from behind that tree.

It is insisted that the court committed reversible error in overruling the motion to discharge the regular panel of the grand jury. The allegation of discrimination against the African race by the jury commissioners in the selection of the grand jury is unsupported by evidence. On the contrary, it is established by the undisputed evidence that the jury commissioners selected electors to serve on the panel who possessed the statutory qualifications without reference to race or color. The court did not err in overruling the motion.

It is next insisted that the court committed reversible error in overruling the petition for change of venue. One of the statutory requirements of affiants to a petition for a change of venue is that they shall be credible persons. Kirby's Digest, section 2318. One test of credibility within the meaning of that word, as used in the statute, is the knowledge of the affiant concerning the subject of inquiry. If he lacks knowledge, or is wanting in information as to the state of mind of the inhabitants concerning an accused, then the court would be warranted in finding that he is not worthy of belief on the question of whether the minds of the inhabitants of a county are so prejudiced against the accused that he cannot obtain a fair and impartial trial in the county. Dewein v. State, 120 Ark. 302, 179 S.W. 346. The affiants in the instant case were examined by the court, touching their credibility as witnesses in reference to the state of mind of the inhabitants of the county toward appellant. They had heard only a few men in a limited number of places in the county express any animosity or ill will toward appellant. We think the examination revealed a lack of knowledge on the part of affiants of the state of mind toward appellant of the citizens of a considerable portion of the county, much less...