Mallory v. State

• Decision Date: 12 January 1920
• Docket Number: 110
• Parties: MALLORY v. STATE
• Court: Arkansas Supreme Court

217 S.W. 482

141 Ark. 496

MALLORY v. STATE

No. 110

Supreme Court of Arkansas

January 12, 1920

Appeal from St. Francis Circuit Court; J. M. Jackson, Judge affirmed.

Judgment affirmed.

R. J Williams and M. B. Norfleet, Jr., for appellant.

1. It was error for the court to hold that Tom Hampton, Jesse Pharr and C. E. Phillips were competent jurors. They had expressed opinions on the case and were disqualified as jurors. 45 Ark 170; Const., art. 2, § 10.

2. The court erred in giving the State's instructions and by the refusal of the one asked by defendant as to what constituted an assault.

3. Defendant was prejudiced by the charge of Special Judge J. Walker Morrow.

4. It was error to refuse appellant the right to show why he was seeking the deceased, Connerly. 43 S.E. 230.

5. It was error to refuse to permit defendant to tell what he said to Mr. Lacefield after he was placed in jail. It was part of the res gestae. 43 Ark. 99; Ib. 289; 1 Greenl. on Ev., §§ 108, 111; Wharton, Cr. Ev., §§ 262, 270; 43 Ark. 103.

6. The jurors rejected were duly qualified. Kirby & Castle's Digest, §§ 5217-18; Const. Amend. No. 9, art. 28; 68 Ark. 464.

7. It was error to refuse instruction No. 1 for defendant. 11 Pickle (Tenn.), 137.

8. It was lawful for defendant to show his purpose in seeking deceased or in going to the scene of the homicide. 52 W.Va. 132; 43 S.E. 230; 22 Mont. 92; 55 P. 927; 26 Tex. 107. Defendant's purpose was lawful. Supra. Statements of deceased reflecting upon the character of defendant and his female relatives are admissible in his behalf as to his motive. 15 Ky. L. Rep. 562; 24 S.W. 611; 26 Id. 201.

9. It was error to give No. 3 for the State. It is misleading, argumentative and ambiguous. 6 Mo.App. 592; 8 Peters 399; 24 Cal. 14; 5 Nev. 337.

10. The verbal remarks of Special Judge Morrow were prejudicial. 117 Ark. 81.

11. Instructions as to the lower grade of homicide should have been given. 36 Kan. 187; 105 Mo. 38; 1 Tex.App. 225; 98 Mo. 150; 13 Ky. Law Rep. 313; 73 Mo. 592.

John D. Arbuckle, Attorney General, and Robert C. Knox, Assistant, for appellee.

1. There was no proper bill of exceptions. 84 Ark. 241; 103 Id. 21; 47 Id. 180; 79 Id. 127.

2. It is not necessary to be an elector to be a qualified juryman in Arkansas, as the statute is silent as to qualifications of petit jurors.

3. No error in giving instruction No. 3. 74 Ark. 431; 62 Id. 286; 109 Id. 475; 93 Id. 409.

4. No error in instruction or statement of the special judge. 98 Ark. 83; 111 Id. 272; 134 Id. 528.

5. No error in refusing defendant the right to testify as to his purpose in seeking the deceased. It was immaterial.

6. No error in refusing to let defendant testify what he told the deputy sheriff after he was in jail. The statements were too remote to be res gestae.

OPINION

HUMPHREYS, J.

Appellant was indicted and tried in the St. Francis Circuit Court for murder in the first degree for killing James Connerly in the courthouse yard at Forrest City. The trial resulted in a conviction for manslaughter and a sentence, as punishment therefor, to the State penitentiary for seven years. From the judgment of conviction an appeal has been duly prosecuted to this court. In the formation of the jury to try appellant, Tom Hampton, Jesse Pharr and C. E. Phillips, on their voir dire, testified severally, in substance, that each had formed, expressed, and had a fixed opinion as to the appellant's guilt, which had been formed from statements made by parties who professed to relate the facts as they occurred, and that it would require testimony to remove or change their respective opinions. In response to the questions propounded by the court, each testified that he could and would disregard the opinion and try the case according to the law and evidence, or, at least, each thought he could. Wm. Billingsley, another venireman, testified, on September 27, 1919, that he was 22 years of age and had never paid a poll tax. The court held each of the veniremen qualified, over the objection and exception of appellant, and he was compelled to exhaust his peremptory challenges in challenging them, and, on this account was prevented from peremptorily challenging Ed Clegg, who qualified as a juror.

On Sunday morning, May 25, 1919, between eight and nine o'clock, James Connerly had a difficulty with Emmett Mallory, appellant's uncle, at Crawford's restaurant in Forrest City. They both left the restaurant, Emmett Mallory leaving first. A short time thereafter, appellant and Reuben Mallory came to the restaurant and inquired for James Connerly. Not finding him, they went to the depot, from which place they were taken, by request, in Will Dooley's car, to Dr. Aldridge's residence where Connerly frequently visited. In the meantime, Connerly had been arrested and placed in the custody of George Dooley in the courthouse yard, while the officer who arrested him went to arrest Emmett Mallory.

According to the State's evidence, Connerly was sitting on an urn in the courthouse yard near his custodian, Dooley, when appellant, in company with Reuben Mallory, came hurriedly into the courtyard and approached Connerly. After they passed Dooley, he observed a knife in appellant's hand. Appellant said something to Connerly about abusing an old man and cursed him. Dooley hallooed to him to stop, but, notwithstanding, appellant stabbed Connerly twice while he was raising up and before he got perfectly straight. Dooley grabbed his hand before he struck the third blow, but appellant broke away from Dooley, and, in the renewal of the conflict, both fell to the ground. Others came and assisted in separating the men, and, after both were on their feet, appellant reached around Dooley and cut Connerly in the back. Four knife wounds were found upon Connerly's body--two in front and two behind. One had penetrated the heart. The two front wounds were over four inches in depth. After the antagonists were separated, Connerly walked out of the courtyard into the alley where he soon died.

The evidence on behalf of appellant showed that he, in company with Reuben Mallory, upon hearing of the difficulty between appellant's uncle and Connerly, sought and found him for the purpose of obtaining an explanation of the difficulty. The court ruled that appellant could not show that his purpose in seeking an explanation was to effect a reconciliation between his uncle and Connerly, to which ruling an objection was made and exception saved; that when they found Connerly in the courtyard appellant requested an explanation of the difficulty, whereupon Connerly sprang to his feet and remarked: "I beat him up and I will beat you up, you s of a b ;" that Connerly attacked him and threw his hand toward his pocket as if to draw a weapon, and appellant cut him twice before Dooley grabbed his hand; that, in a renewal of the conflict, they fell to the ground, and the cuts in the back were made during the scuffle; that appellant had a pistol during the difficulty, which he did not attempt to use. Appellant offered to prove that he told the deputy sheriff, Lacefield, immediately after his arrest and incarceration in the jail, that he had a pistol and did not use it. The court excluded this evidence over the objection and exception of appellant.

After the submission of the case to the jury, it became necessary for the regular judge to leave, and the Honorable J. Walker Morrow was elected special judge to preside in the absence of the regular judge. After the special judge assumed the bench, he sent for the jury, and, being informed that they had not reached a verdict, he read the instructions to them, which had been given by the regular judge, and, in addition, instructed them orally as follows:

"This is an intelligent jury and the county will not get one more so. The county has been put to an enormous cost in trying this case. I was selected to fill the place of the regular judge and I am prepared to do so, and I expect to sit until you reach a verdict. Take the case, gentlemen of the jury." Proper objections and exceptions were saved to the verbal statement.

It is contended that the court committed reversible error in holding Tom Hampton, Jesse Pharr and C. E. Phillips as qualified jurors. The several opinions held by the jurors were not based upon statements made to them by witnesses, so were necessarily formed from rumor or hearsay. Each testified that he could, or thought he could, disregard the opinion and try appellant according to the law and evidence. The record fails to show that either had any bias or prejudice against appellant. These facts being true, it is immaterial whether the several opinions were fixed and that it would take evidence to remove them. It was said in the case of Jackson v. State, 103 Ark. 21 (syllabus 1): "A juror is not disqualified in a criminal case by reason of a 'fixed' opinion based upon hearsay testimony or mere rumor, which opinion it would take evidence to remove, where he states that he can go into the jury box and disregard such opinion, and that he had no bias or prejudice for or against the accused." It is urged that the court erred in qualifying Wm. Billingsly as a juror because he was not an elector. Under the statutes of this State, a petit juror must be an elector. Kirby's Digest, section 4508. Billingsly testified on September 27, 1919, that he was 22 years of age, and that he had never paid a poll tax. He may have attained to the age of 22 on the date he testified. The record does not disclose anything to the contrary. If this be the case, he...