Kinslow v. State

• Citation: 109 S.W. 524
• Parties: KINSLOW v. STATE.
• Decision Date: 24 February 1908
• Court: Supreme Court of Arkansas

109 S.W. 524

KINSLOW v. STATE.

Supreme Court of Arkansas.

February 24, 1908.

Appeal from Circuit Court, Garland County; W. H. Evans, Judge.

Dave Kinslow was convicted of murder, and he appeals. Affirmed.

Dave Kinslow was indicted for the crime of murder committed by killing one Kent. He petitioned for a change of venue on the ground that the minds of the inhabitants of Garland county were so prejudiced against him that he could not obtain a fair and impartial trial therein. The motion was supported by the affidavits of John Brown and Nathan Harper. The court caused them to be examined under oath concerning their knowledge of the subject-matter of their affidavits in order to ascertain whether they were credible. The examination showed that they had not talked with any persons touching the case outside the city of Hot Springs, and that they did not know whether the persons with whom they talked about it there were inhabitants of the city or county or visitors. The court found that they swore recklessly, and were not credible. The defendant asked to amend his motion for a change of venue, but did not state in what respect he wished to amend it. The court refused his request, and overruled his motion for a change of venue. The defendant saved his exceptions.

The testimony shows that the killing occurred about 10 or 11 o'clock at night in a saloon in Hot Springs. The parties do not appear to have known each other until the night of the killing, and both appear to have been drinking. To what extent, the witnesses differ. One of the witnesses for the state testified that the first thing he noticed was that defendant was cursing deceased, who was an old man, and calling him vile names; that he told defendant he must stop. That there would be a dead negro if he heard him make any more remarks of that kind to a white man; that defendant went out of a door by the side of the ice box; that deceased walked back toward the ice box, and that the next thing he saw defendant cut deceased's throat; that there was but one lick made, and that then defendant ran away. Other witnesses testified substantially the same except they did not hear defendant curse deceased, but all agree that he walked up to the ice box behind deceased and cut his throat, and then ran out of the saloon. Defendant testified that he had no recollection of the killing; that he was drunk that night; that the next morning he found himself out on the mountain; that some little girls told him that the officers were after him, and that a negro had killed a white man the night before. Defendant borrowed a dollar from them and left, going through the woods to Malvern, where he hid until discovered and captured by the officers. Defendant said that for five years he had been addicted to the use of laudanum and morphine to case pains in his head; that he was so drunk on the night of the killing that he had no recollection of the killing. Other witnesses testified that he appeared to be drinking some that night, but was not drunk. The jury returned a verdict of guilty of murder in the first degree. Defendant has appealed.

J. D. Page and Scipio Jones, for appellant. Wm. F. Kirby, Atty. Gen., and Dan'l Taylor, Asst. Atty. Gen., for the State.

HART, J. (after stating the facts as above).

1. The defendant assigns as error the action of the court in overruling his motion for a change of venue, and in refusing to allow him to amend the same. The motion appears to have been in proper form, and, besides, defendant did not state in what respect he wished to amend it. This he should have done in order that the court might be advised as to what it had to pass upon. Its materiality could not appear unless the facts upon which it was based were set out. It was not an abuse of discretion to refuse a petition for a change of venue where the makers of the supporting affidavits admitted that they had only been in one locality in the county, and did not even know whether the persons whom they had talked with about the case were inhabitants of the county. White v. State, 83 Ark. 36, 102 S. W. 715.

2. Defendant objects that the court overruled his motion for a continuance. The motion does not appear in the record, and the presumption is that the action of the court was correct.

3. The defendant assigns as error the refusal of the court...