Lewis v. State

• Decision Date: 06 October 1952
• Docket Number: No. 4696,4696
• Citation: Lewis v. State, 251 S.W.2d 490, 220 Ark. 914 (Ark. 1952)
• Parties: LEWIS et al. v. STATE.
• Court: Arkansas Supreme Court

Page 490

251 S.W.2d 490

220 Ark. 914

LEWIS et al. v. STATE.

No. 4696.

Supreme Court of Arkansas.

Oct. 6, 1952.

Gordon & Gordon, Morrilton, Bob Bailey and Bob Bailey, Jr., Russellville, for appellants.

Ike Murry, Atty. Gen., Dowell Anders, Asst. Atty. Gen., for appellee.

MILLWEE, Justice.

The defendants, Steve Lewis and Harry H. Wren, were jointly charted with involuntary manslaughter in the killing of Mrs. Nancy Pounds, 86 years of age. The defendants were tried jointly and convicted and their punishment fixed by the jury at one year and one day in the penitentiary.

The charges arose out of an automobile collision which occurred shortly after midnight on U. S. Highway 64 about three miles west of Morrilton, Arkansas. The evidence on behalf of the State shows that defendants who resided at Atkins, Arkansas were close friends, and that Wren usually drove Lewis' car. On the night in question they did considerable driving from place to place in the Lewis automobile. En route from Atkins to Morrilton they purchased 12 cans of beer and did considerable drinking of beer and gin from 7 p. m. until immediately prior to the collision. After visiting a friend a few miles from Morrilton late in the evening where the drinking was continued, the defendants were driving west in Lewis' automobile when it collided headon with a car being driven east by Mrs. Mabel Law and in which Mrs. Pounds was a passenger. There was evidence that the car occupied by defendants was weaving from one side of the road to the other shortly before the collision and ran into the car operated by Mrs. Law on her side of the road after she had turned her car to the right with the right wheels off the pavement in an effort to avoid the collision. Occupants of both automobiles were seriously injured and Mrs. Pounds died from her injuries three days later.

Several witnesses testified that defendants had the odor of alcohol on their breaths and a portion of a 'fifth' of gin was found in the car following the collision. The respective positions in which the defendants were found unconscious after the collision and the nature of the physical damage to the car occupied by them indicated that Lewis was driving at the time of the collision, while there was other substantial evidence that Wren was the driver. Each defendant testified that he was asleep at the time of the collision and that the car was being driven by the other. Both defendants admitted that they had done considerable drinking but the defendant Lewis denied that he was drunk.

In urging reversal defendants contend that the trial court erred in (1) giving certain instructions, (2) overruling their motions to sever, (3) denying the motion of Lewis for a continuance, (4) refusing to disqualify a petit juror for cause, and (5) allowing only eight peremptory challenges to both defendants. It is also insisted that the evidence is insufficient to sustain the verdicts.

(1) The Instructions. We first consider the instructions for the reason that the correctness of the court's action thereon represents the crux of the case and has considerable bearing on some of the other questions presented. The charges against the defendants were brought under Ark.Stats. § 41-2209. ¹

The court gave several instructions stating in effect that if one of the defendants was driving the car in a reckless willful or wanton disregard for the safety of others, and the other defendant was riding as a passenger therein and was aiding, abetting or assisting in the unlawful operation of the car by the co-defendant, then both defendants could be found guilty of involuntary manslaughter. The jury were further told that if either defendant was under the influence of intoxicants and incapable of properly operating the car and that the non-driver, with knowledge of the co-defendant's condition and incapacity, knowingly permitted him to operate the car in a reckless and unlawful manner without protest and did encourage and advise the driving of the car by the other under such circumstances, then the non-driver would be guilty of criminal negligence and involuntary manslaughter in the event that the jury found the driver guilty of such charge.

The court also gave Instruction No. 11 which reads: 'The mere fact that the jury finds from the evidence beyond a reasonable doubt, if it does so find, that one of the defendants, either Wren or Lewis was riding as a passenger in the car involved in the accident with the car in which Mrs. Pounds was a passenger, would not of itself be sufficient to convict the defendant because he was a passenger therein, but the jury must further find, beyond a reasonable doubt from the evidence, that one of the defendants was personally driving the motor vehicle in an unlawful, or drunken and intoxicated condition, or was standing by aiding or abetting in the unlawful driving and operation of the automobile by the other defendant which caused or brought about the death of Mrs. Pounds.' Other instructions were given presenting the defense of each defendant on these issues.

It is conceded that these instructions were based on the law as declared by this court in Fitzhugh v. State, 207 Ark. 117, 179 S.W.2d 173, 175. In that case this court became committed to the rule that an accused may be convicted as an accessory before the fact to involuntary manslaughter and that under our statute, Ark.Stats. § 41-118, such accused is deemed a principal offender. In the Fitzhugh case the defendant claimed that he was too drunk to remember anything about the collision and that another was driving the car at the time. This court said: 'We think the jury would have been warranted in finding, from all the facts and circumstances presented, that the truck in question belonged to appellant, that he was on the front seat at the time of the collision, and if not actually driving, was sitting beside the person who might have been driving, that appellant was not so drunk but that he knew what was happening, knew that the truck, a dangerous instrumentality, was being driven on the wrong side of the road, § 6714, Pope's Digest, in an unlawful manner, and was therefore, an accessory and punishable as principal.'

In Story v. U. S., 57 App.D.C. 3, 16 F.2d 342, 344, 53 A.L.R. 246, the defendants, as here, were jointly charged with involuntary manslaughter and the court said: 'If the owner of a dangerous instrumentality like an automobile knowingly puts that instrumentality in the immediate control of a careless and reckless driver, sits by his side, and permits him without protest so recklessly and negligently to operate the car as to cause the death of another, he is as much responsible as the man at the wheel.' The court also approved the following statement in Ex parte Liotard, 47 Nev. 169, 217 P. 960, 961, 30 A.L.R. 63: 'No one would contend that the owner of a car would not be liable for injuries resulting from his operating it while intoxicated. How, then, can he escape the consequence when he sits by and permits another, who is intoxicated to operate it? * * * One who is so careless of the rights of others as to use a dangerous instrumentality while incapacitated by drink, or who permits others to do so, as here shown, invites the consequences. He must pay the penalty.' See also, Annotation 99 A.L.R. 771.

It is true that the authorities are divided on the question as to whether there can be an accessory before the fact to manslaughter, some courts holding that there cannot be accessories before the fact to voluntary manslaughter while there can be such accessories in cases of involuntary manslaughter. 40 C.J.S., Homicide, § 9b. We think the rule adopted in the Fitzhugh case is supported by reason and the weight of authority. The trial court carefully followed our holding in that case in the instructions given here and we find no error in them.

2. Motions to Sever. Each defendant filed a motion for a separate trial under the joint information and the motions were overruled. It appears from the motion filed by Wren that he alone was initially charged with the offense and that a trial on said charge resulted in a mistrial when the jury could not agree on a verdict. Subsequent to the filing of the first information the prosecuting attorney filed a joint information and the record does not disclose what disposition, if any, was made of the first information. Apparently the state elected to proceed on the joint information in lieu of the first information filed and this practice has been approved. Cole and Jones v. State, 214 Ark. 387, 216 S.W.2d 402.

Ark.Stats. § 43-1802 provides that when two defendants are jointly indicted for a felony less than a capital offense, the defendants may be tried jointly or separately in the discretion of the trial court. We have frequently held that the granting of a severance is within the discretion of the trial judge and his action will not be disturbed in the absence of a clear abuse of such discretion. In Nolan and Guthrie v. State, 205 Ark. 103, 167 S.W.2d 503, and Bennett and Holiman v. State, 201 Ark. 237, 144 S.W.2d 476, 131 A.L.R. 908, defendants were jointly charged with arson and one of them moved for separate trial because the confession of a co-defendant would be introduced at the trial. We held there was no abuse of the trial court's discretion in denying severance where the court properly instructed the jury that the confession of one defendant could not be used against the other.

Defendants earnestly contend that their defenses were inconsistent and that the failure of the court to grant them separate trials placed the burden on each not only to defend himself against the State, but to prosecute the other. Cases are cited in which it has been held that where the defenses are so antagonistic as to preclude a defendant from obtaining a fair and impartial trial upon a joint charge, then the court abuses his discretion in failing to grant the severance. The only...