Kinnemer v. State

• Decision Date: 18 February 1899
• Citation: 49 S.W. 815,66 Ark. 206
• Parties: KINNEMER v. STATE
• Court: Arkansas Supreme Court

49 S.W. 815

66 Ark. 206

KINNEMER v. STATE

Supreme Court of Arkansas

February 18, 1899

Appeal from Pope Circuit Court, WILLIAM L. MOOSE, Judge.

Reversed and remanded.

J. F Sellers, for appellant.

It was error to require defendant to go to trial before a copy of indictment was served on him. 24 Ark. 631. It was error to allow the state to prove the statements made by defendant's wife. 64 Ark. 121. It was error to allow the state to ask defendant whether he had not been convicted of petit larceny. 58 Ark. 476; 60 Ark. 450; 34 P. 1078. The prosecuting attorney made use of improper arguments. 61 Ark 130; 58 Ark. 480; 168 U.S. 382; 8 S.W. 762; 32 S.W. 1149; 17 S.W. 1108; 14 S.W. 117; 12 S.W. 619; 5 S.W. 115; 43 P. 124; 11 S.W. 185; 30 A. 419. It was error to reinstruct the jury in the absence of defendant. 24 Ark. 624; 19 Ark. 209; 5 Ark 431; 10 Ark. 325; 44 Ark. 332; 30 Ark. 328; 39 Ark. 180; 54 Ark. 489; Bish. Cr. Proc. § 688; 43 N.Y. 3; 146 U.S. 370, s. c. 36 Law, Ed., 1011, and note; 26 O. St. 208; 25 Alb. L. J. 59; 6 L. R. A. 832 and note; 16 P. 330; 6 S.W. 646; 4 Humph. 254; 2 Sneed (Tenn.) 550; 1 Wend. 91. The evidence was insufficient to sustain a conviction.

OPINION

WOOD, J.

On the night of June 16, 1897, Dr. Chamness was assassinated. He was sleeping, as was his custom, upon a cot on his gallery. While thus sleeping, some one shot him through the head with buckshot, killing him instantly. The defendant was indicted for the murder, the indictment charging him with murder in the first degree. He was convicted of murder in the second degree.

At the trial defendant and one Shipp testified that on the night of the killing (Wednesday night) Shipp stopped at defendant's house, which was about seven miles from the scene of the killing; that Shipp stayed till late in the night, and while at defendant's fixed his clock, the defendant being at home at the time; that defendant was at his home when Shipp left. It had been shown that Doctor Chamness was killed about the hour of 11 o'clock Wednesday night. The above testimony therefore was pertinent and material concerning the question of alibi. In rebuttal, a witness was permitted, over defendant's objection, to state that on Sunday, after the killing on Wednesday night, she saw defendant's wife, who told the witness that Joe Shipp had fixed their clock the day before. This testimony tended to contradict both the defendant and Shipp on a material question in the case. It was pure hearsay. The wife of the defendant could not be a witness, and nothing that she said was proper. She could not be called to contradict or confirm the statements ascribed to her.

The record shows that, after the case had been submitted to the jury and after being out several hours, the jury came into the court room, and asked to be re-instructed, whereupon the court, the defendant being in jail, and not voluntarily absent, re-read the entire instructions exactly as first given to them. The record does not show that even defendant's counsel were present when this was done. The fact that the jury asked "to be reinstructed" shows that they did not comprehend the charge of the court when first delivered. The re-reading, of the instructions was tantamount to instruction them originally, or for the first time, because the first time the instructions were read they were not understood. There is no more important or material step in the progress of a trial than instructing the jury. Even had the record showed affirmatively the presence of defendant's counsel, still they could not waive his presence while the jury was being instructed. The instructions could not be re-read in his enforced absence for, although they were read "exactly as at first given," the defendant had the right to know and see that such was the case, and to be present for that purpose. ...