Martin v. State

• Decision Date: 03 March 1924
• Docket Number: (No. 211.)
• Citation: 259 S.W. 6
• Parties: MARTIN v. STATE.
• Court: Arkansas Supreme Court

259 S.W. 6

MARTIN v. STATE.

(No. 211.)

Supreme Court of Arkansas.

March 3, 1924.

Dissenting Opinion March 17, 1924.

Appeal from Circuit Court, Hempstead County; Jas. H. McCollum, Judge.

Finley Martin was convicted of possessing a still and still worm, and he appeals. Affirmed.

J. S. Utley, Atty. Gen., and Jno. L. Carter, Wm. T. Hammock, Darden Moose, and J. S. Abercrombie, Asst. Attys. Gen., for the State.

SMITH, J.

Appellant was indicted for possessing a still and still worm, and upon his trial was convicted and has appealed.

He assigns as error the alleged insufficiency of the testimony to support the verdict. The testimony fully supports the summary of the evidence contained in the brief of the Attorney General as follows: A still worm and other parts of a still were found covered in some hay in a crib on the farm where appellant and his father lived. There was also found in the crib about 20 gallons of whisky, which appellant admitted belonged to him, and for which he testified that he had paid $100. He was a farmer boy — a young man — assisting his father in making a small crop, and he does not explain how he obtained the money to buy this amount of whisky, which he said he bought to drink. Near appellant's home there was found a still with several barrels of mash ready to be distilled into whisky, and there was a path leading from the crib where the whisky was found to the still.

Defendant testified that he hid the whisky because his father would not allow him to keep whisky in his possession. He admitted that a short time prior to the finding of the still he had been arrested on his way to the city of Hope with six gallons of whisky, which he admitted he had intended to sell, but did not sell because of his arrest, and he also admitted that prior to that time he had been arrested with several gallons of whisky in his possession, which he had intended to sell but had not sold, and he denied that he had ever at any time sold whisky or that he had any knowledge of the presence of the still or the mash. There are certain other circumstances tending to corroborate and to contradict the testimony set out above; but we think the testimony recited is sufficient to sustain the conviction.

The court refused to give, at appellant's request, an instruction numbered A, which, if given, would have told the jury that if the facts testified to by the witnesses "are susceptible of two reasonable interpretations, one of innocence and one of guilt, the interpretation of innocence must be accepted in defendant's behalf, and you are to acquit." The refusal to give this instruction is assigned as error.

We think no error was committed in refusing to give this instruction. The jury was told to acquit the defendant unless they were convinced of his guilt beyond a reasonable doubt, and this was sufficient.

The jury is not required to enter into metaphysical speculations as to the probative value of the separate facts offered in evidence, nor are they required to consider the relative bearing of any fact offered in evidence apart from the other testimony in the case. Nor is it required that each circumstance tending to establish the guilt of the accused shall be established beyond a reasonable doubt before taking the part of it so established into account in making up the verdict.

In the case of Lackey v. State, 67 Ark. 416, 55 S. W. 213, it was said:

"The doctrine of reasonable doubt applies to the general issue of guilty or not guilty; but it does not apply to each item of testimony or to each circumstance tending to show the guilt of the defendant. It would in many cases be difficult to convict the guilty if the law forbade the jury to consider any circumstance or statement of fact not established beyond a reasonable doubt. Such a rule would be difficult of application, would embarrass the prosecution of criminals, and tend to confuse and mislead the jury. We did not intend to establish such a rule in Gill v. State, 59 Ark. 422, for the question was not in that case before us for decision. The test question under our statute is whether on the whole case, after all the evidence has been considered by the jury, they still entertain a reasonable doubt of the defendant's guilt. If they do, he should be acquitted. Sand. & H. Dig. § 2233. And this seems to be the rule generally approved by the courts of other states" — citing cases.

See, also, Sullivan v. State (Ark.) 258 S. W. ___, and cases there cited.

A more serious question, and the only one which gives us concern, is the action of the court in excusing a juror named Middlebrook after the jury had been selected and sworn to try the case. It appears that after this had been done the prosecuting attorney discovered that the juror had served as such in a former trial of the case, which had resulted in a mistrial through the failure of the jury to agree.

The record before us contains the following recitals:

"Mr. Bush (the Prosecuting Attorney): If the court please, we would like to excuse Mr. Middlebrook. He has been sworn, but he has evidently overlooked the fact in his statement to the court that he was a juror in the previous case. Evidently he has an opinion, must have had one way or the other to sit on the jury, and, if it takes it, we would like for the court to disclare this a mistrial and summons the jury over.

"The Court: I won't do that. Mr. Middlebrook, you remember that you were on the trial of this case before and had overlooked it in answering questions here?

"Mr. Middlebrook: Yes, sir.

"The Court: I will permit the state to challenge him.

"Mr. Carrigan (Attorney for Defendant): The defendant objects to that and saves exceptions on the ground that the jury has already been sworn and impaneled to try the case, and ask that his exceptions be noted of record."

The court overruled the objection of defendant, and, after another juror had been qualified and sworn, the trial proceeded, and defendant was convicted as has been said.

In Martin v. State (Ark.) 256 S. W. 367, the jury had been sworn and the prosecuting attorney was engaged in making his opening statement, whereupon a juror stated that he had been a member of the grand jury which had returned the indictment. The court gave appellant an opportunity to challenge the juror, which he declined to do, whereupon the court discharged the entire jury and ordered that another jury be impaneled. The defendant excepted and entered a plea of former jeopardy.

We overruled the plea, and did so upon the express ground of public necessity, saying that a necessity had arisen in the administration of justice which demanded action on the part of the court, and that it was the duty of the court to safeguard the right of the accused to a trial by an impartial jury and also to protect the rights of the public to test the guilt or innocence of one charged with crime, and we expressly based the decision that jeopardy had not attached upon the holding in the case of Franklin v. State, 149 Ark. 546, 233 S. W. 688, that the necessity of a case might require the discharge of a juror or, as was there done, the entire jury, to secure a trial fair alike to the state and to the defendant. No other reason for so holding was given in the Martin Case.

In the Franklin Case the facts were that, after the jury had been sworn, a juror announced that he had been a member of a jury which had convicted three other defendants upon their joint trial for the same offense of which the accused was on trial. The court, without objection on the part of the accused, excused the juror and ordered that another juror be selected to take his place. The defendant then interposed a plea of former jeopardy, which the court overruled.

In upholding the trial court we there said that, as this was obviously done in the defendant's interest, it would be presumed that he had consented to the action taken, inasmuch as he made no objection to the court's action until after the juror had been discharged.

It is true that ruling would have disposed of the exception, but we did not content ourselves with putting the decision on that ground alone. The action of the trial court was upheld on a second ground. We said there was a manifest necessity which warranted the court in discharging the juror, and that therefore no jeopardy attached to the accused.

As authority for that holding we cited and quoted with approval from the decision of the Supreme Court of the United States in the case of Thompson v. U. S., 155 U. S. 271, 15 Sup. Ct. 73, 39 L. Ed. 146, which, by the way, came from the District Court of the United States for the Western District of Arkansas (in which case a juror discovered after the jury had been sworn that he had been a member of the grand jury which had returned the indictment, and the court had discharged the entire jury and had ordered that another jury be called):

"As to the question raised by the plea of former jeopardy, it is sufficiently answered by citing United States v. Perez, 9 Wheat. 579, Simmons v. United States, 142 U. S. 148, and Logan v. United States, 144 U. S. 263. Those cases clearly establish the law of this court, that courts of justice are invested with the authority to discharge a jury from giving any verdict, whenever in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated, and to order a trial by another jury; and that the defendant is not thereby twice put in jeopardy within the meaning of the Fifth Amendment to the Constitution of the United States."

In the Franklin Case we also quoted with approval from the Supreme Court of Maine in the case of State v. Slorah, 118 Me. 203, 106 Atl. 768, 4 A. L. R. 1256, the following statement of the law:

"The administration of justice requires that verdicts, criminal as well as civil, shall be found by impartial juries, and shall be the result of honest...