Lackey v. State

• Decision Date: 03 February 1900
• Citation: 55 S.W. 213,67 Ark. 416
• Parties: LACKEY v. STATE
• Court: Arkansas Supreme Court

55 S.W. 213

67 Ark. 416

LACKEY v. STATE

Supreme Court of Arkansas

February 3, 1900

Appeal from Baxter Circuit Court, JNO. B. MCCALEB, Judge.

Affirmed.

J. C South, for appellant.

It was error to refuse to allow appellant to show to what extent the gun used would "scatter" at the ranges contended for by the state and defendants respectively. The evidence was relevant. 1 Whart. Cr. Ev. §§ 20, 21; 42 Ark 554; 29 Ark. 386. Where the state relies upon circumstantial evidence, each material circumstance must be porved beyond a reasonable doubt. 59 Ark. 426, 427. The instructions were not full enough. 9 S.W. 737; 10 S.W. 210; Wilson's Cr. Forms No. 714. It was error to require defendants to examine jurors on the voir dire, before the state had exhausted her challenges to each particular juror. Sand. & H. Dig., § 2213.

Jeff Davis, Attorney General, and Chas. Jacobson, for appellee.

The court instructed the jury correctly upon the law of circumstantial evidence. 34 Ark. 754; 30 Ark. 328. There was no error in the impaneling of the jury.

OPINION

RIDDICK, J.

This is an appeal from a judgment of conviction for murder. On the 19th day of August, 1899, Thomas Hamilton was shot and killed near his home in Baxter county. He had gone from his house to a spring, riding one horse and leading two others, for the purpose of watering them. Shortly afterwards his wife heard the report of three gun shots fired in the direction of the spring. Hamilton had previously had a difficulty with Milton Lackey, one of the defendants, and Milton had made threats against him. These threats had been communicated to Hamilton and his wife, and when she heard the sudden firing in the direction of the spring she at once surmised that her husband had been shot. She immediately ran towards the spring, screaming at she went. On the way she met a neighbor, to whom she told her fears, and he returned with her. They found Hamilton dead. He had been shot twice, once in front and a second time in the back, the last shot being fired at such close range that his clothing caught fire and was burning when they found him. The defendants, who were brothers, were suspected, and were afterwards arrested and indicted for murder in the first degree. On the trial they admitted the killing, and admitted that they had fired all three of the shots the reports of which were heard, but claimed that they had acted in self defense. They were found guilty of murder in the second degree, and sentenced to five years in the penitentiary, and the following questions are presented by their appeal.

1. In selecting the jury, the trial judge ruled that, when an examination of the persons summoned to serve as jurors concerning their qualifications was desired, it should be made in the following order: first by the state, and then by the defendant. After the examination was completed, if the juror was found by the court to be competent, the state was then required to accept or peremptorily challenge him; and, if accepted by the state, the defendant was then required to accept or challenge. The defendant excepted to this method of selecting the jury, and his counsel now insist that the state should have been required to examine the juror, and then to exhaust her challenges, both peremptory and for cause, before passing him to defendant for examination. But a consideration of section 2193, Sand. & H. Digest, clearly shows that the contention of counsel for defendant is not sound, for this section requires that the court shall pass on the competency of the juror to serve before either party is called upon to accept him or to reject him by peremptory challenge. It would be unreasonable to require the state to exercise its right of peremptory challenge before the court had finally determined that the juror was competent, and the court could not determine that he was competent without allowing the defendant to examine him touching his qualifications to serve. The ruling of the trial judge on this point was strictly in accord with the section above referred to, and undoubtedly correct. There may be some apparent conflict between this section and section 2213, Sand. & H. Dig., but, when read together, we think it is clear they mean that the state must exhaust her challenges for cause before passing the juror to the defendant for that purpose, and that, when the court has decided the juror to be competent, the state must first be called upon to accept or challenge the juror, and must accept before the defendant can be called on for that purpose.

2. The evidence showed that the shooting was done with a shot gun loaded with BB shot, and that the gun was owned by one Dilbeck. The wounds on the body of Hamilton showed that the first shot was fired at some distance away, and from the front of deceased, the shot wounds being scattered from the neck to the ankle. The last shot was fired in the back at close range, and resulted in almost instant death. During the trial the defendants offered to show by Dilbeck that since the killing he had tested the gun with BB shot, and that at the distance of fifty-nine feet it scattered about fifteen inches, and at forty yards it scattered shot over a space of about four feet in diameter. We agree with counsel for defendant that this evidence was competent, and under some circumstances might have been material, as tending to throw light on the position of the parties at the time of the shooting. Counsel say that they offered it to corroborate a statement of defendant Thomas Lackey that at the time he fired the first shot he was thirty-five or forty yards from Hamilton, and also to rebut the contention of the state that the first shot was fired from ambush, while defendants lay concealed, and only 59 feet from Hamilton. But we have carefully examined the record, and it does not show that Lackey made any statement as to how far he was from Hamilton at the time he fired the first shot. Nor is there anything in the record to support the...