Kelley v. State

• Decision Date: 20 December 1920
• Docket Number: 62
• Citation: 226 S.W. 137,146 Ark. 509
• Parties: KELLEY v. STATE
• Court: Arkansas Supreme Court

226 S.W. 137

146 Ark. 509

KELLEY v. STATE

No. 62

Supreme Court of Arkansas

December 20, 1920

Appeal from Logan Circuit Court, Southern District; Jas. Cochran Judge; reversed.

Judgment reversed and cause remanded.

John P Roberts and Evans & Evans, for appellant.

1. The court erred in refusing a new trial because of improper and prejudicial influences to which the jury was subjected. The jury were permitted to separate during the periods of adjournment of court before and after the case was submitted to them and were never put in charge of a bailiff as required by statute. If the jury were subjected to improper influences while permitted to separate, this, on its face, impeaches the integrity of the verdict. 57 Ark. 1; 44 Id. 115; 62 Id. 554.

2. The court erred in its instructions in regard to the testimony of experts. 49 Ark. 147, 439; 50 Id. 511.

3. The court erred in permitting the State to prove by witnesses that the general reputation of deceased for morality was good. Underhill on Cr. Ev., § 325; 76 Ark. 493; under Cr. Ev., § 234; 75 Ark. 297; Bishop's New Cr. Proc vol. 3, § 612; 21 Cyc. 908. The general rule in homicide cases is that it is not competent to introduce evidence for the purpose of proving the good character of deceased until his character is assailed. 96 Ky. 212; 28 S.W. 500; 90 Ala. 602; 8 So. Rep. 858; 94 N.C. 987; 1 Tenn. Cases 505; 103 Va. 816; 171 S.W. 149. See, also, 99 S.E. 874; 172 P. 189; 190 S.W. 290; 21 Cyc. 908.

4. The court erred in its instruction defining insanity. 50 Ark. 511; 101 Id. 586; 54 Id. 588; 120 Id. 553; 54 Id. 588.

John D. Arbuckle, Attorney General, and Silas W. Rogers, Assistant, for appellee.

1. The mere fact that an attempt, either directly or indirectly, was made to influence the verdict of the jury for or against the appellant, would not of itself be a prejudicial influence. 130 Ark. 189. Where it appears that the juror was not influenced, a new trial will not be granted. 102 Ark. 525; 130 Id. 189. No prejudice was shown, and it was a matter within the discretion of the court. 102 Ark. 525.

2. The instruction in regard to the testimony of experts correctly states the law, and no specific objection an issue in the case. Bloomer v. State, 75 Ark. 297. See, 530, 595. Specific objection should have been made and the court's attention specifically called to any defect or ambiguity or error. 96 Ark. 531; 98 Id. 227; 97 Id. 108. The instruction is not a charge upon the weight of the evidence. 50 Ark. 511.

3. The question as to the character of the deceased was not raised by the State but by appellants in questions asked witnesses by the defense. 3 Enc. of Ev., p. 28. See, also, Ib., p. 14. 13 Kan. 414.

The exceptions were too general. 74 Ark. 355; 48 Id. 177; 66 Id. 264.

4. The court's instruction as to or definition of insanity is a correct statement of the law.

OPINION

WOOD, J.

The appellant was indicted for the crime of murder in the first degree in the shooting and killing of one Abe Quinalty. He was tried and convicted of murder in the second degree and by judgment of the court sentenced to ten years in the State penitentiary. He appeals.

The testimony on behalf of the State was sufficient to sustain the verdict. The appellant set up self-defense and also insanity, and the testimony in his behalf warranted the submission of these issues to the jury. There was testimony on behalf of appellant tending to prove that Quinalty, for several months prior to the killing, had been having illicit relations with the wife of appellant; that appellant had knowledge of this fact and had remonstrated with Quinalty and forbade his coming to appellant's home. Several witnesses testified for the defendant that his general reputation in the community where he lived for being a peaceable and law-abiding citizen up to the time of the killing was good. These witnesses, on cross-examination, were asked if they were acquainted with the general reputation of Quinalty for morality in the community where he resided. They were permitted over the objection of appellant to answer in the affirmative, and that his reputation was good. Appellant objected, and the court directed his counsel to save his exceptions.

The questions propounded by the State on cross-examination were not responsive to any questions that had been asked by the appellant in the direct examination. The testimony elicited by the questions was therefore in the nature of primary evidence offered by the State of the good moral character of the deceased when the same had not been put in issue by the appellant. True, the appellant had introduced testimony tending to prove that the deceased had been having illicit relations with appellant's wife, but these specific acts of the deceased did not tend to prove that he had the general reputation of being a lecherous and licentious man. In exculpation or mitigation of the charge, it was competent for the appellant to show the circumstances connected with the killing. It was competent for him to prove that Quinalty had been having illicit intercourse with his wife, and that on this account he had been warned to stay away from appellant's home, and that at the time of the killing he had ignored the warning and was attempting to invade appellant's home. But it was not competent for the appellant to prove that Quinalty had the general reputation in the community where he lived of being a man of bad moral character. The most that appellant under the circumstances could have proved was that the deceased had the general reputation of being a violent and dangerous man. If the appellant had done this, it would have been competent for the State to have introduced evidence in rebuttal showing that Quinalty's general reputation was that of a peaceable and law-abiding citizen. But, on the issue as to whether or not the deceased, Quinalty, was guilty of improper intimacy with appellant's wife, it was not competent for the State to prove that in the community where Quinalty resided his general reputation for morality was good. Under the defenses set up by appellant, the general reputation of Quinalty for morality was not and could not have been an issue in the case. Bloomer v. State, 75 Ark. 297, 87 S.W. 438. See, also, Long v. State, 76 Ark. 493, 89 S.W. 93; Bishop's New Criminal Procedure, vol. 3, § 312; Childers v. Commonwealth, 171 S.W. 149; Parker v. Commonwealth, 96 Ky. 212, 28 S.W. 500; 21 Cyc. 908; State v. Johnson, 172 P. 189; Kennedy v. State, 37 So. 90; State v. Dixon, 190 S.W. 290; Phillips v. State, 99 S.E. 874.

The manifest purpose of the above testimony was to lead the jury to believe that, since Quinalty was shown to be a man of good moral character, it was not probable that he would have been guilty of adultery with appellant's wife, to which appellant testified, and which the testimony of Mrs. Ella Bird and Mrs. Laura May tended to prove. Thus the prosecution was permitted by the above testimony to impeach and contradict in an indirect manner the testimony of appellant and his witnesses. At least such was the probable effect of the testimony. This method of impeaching witnesses is not authorized by statute or sanctioned by any rules of evidence. Kirby's Digest, § 3138. The testimony was incompetent and prejudicial.

"No. 19. The defendant interposes the defense of insanity. Insanity is a disease of the mind, and is not a defense to a criminal charge unless it arises out of some disease of the mind, and at the time of the commission of the offense charged renders the defendant incapable of knowing right from wrong, or if he did know right from wrong incapable of controlling his actions. One's reason may be dethroned to such an extent as to render him incapable of knowing right from wrong, incapable of controlling his actions, by fury, anger or malice, but this is not in law, insanity, nor does proof of such condition of the mind at the time of the commission of an offense constitute any defense, if it grows out of anger or malice and not out of a diseased condition of the mind.

In other words, in this case, if the defendant was, at the time he fired the fatal shot at deceased, insane to such an extent that he did not know right from wrong or, knowing right from wrong, was incapable of controlling his actions, and this insanity arose from some disease of the mind, he is entitled to an acquittal; but, if, on the other hand, at the moment that he fired the fatal shot his reason was so dethroned that he did not know right from wrong, was incapable of controlling his actions, and this mental derangement arose from anger, fury, or malice, he is guilty of an unlawful homicide, and you should so find and fix the degree in accordance with the definitions of homicide which have been given you by the court.

"No. 20. As to whether or not defendant knew the difference between right and wrong and the nature and consequence of his act, or was able to avoid killing the deceased at the time the alleged offense was committed, is a question for the jury to determine from all the facts and circumstances and testimony before you in the case."

The court made the responsibility of the defendant for the alleged crime depend upon whether or not the defendant was incapable of knowing right from wrong, or incapable...