Massey v. State

• Decision Date: 02 October 1944
• Docket Number: 4363
• Citation: 182 S.W.2d 671,207 Ark. 675
• Parties: Massey v. State
• Court: Arkansas Supreme Court

182 S.W.2d 671

207 Ark. 675

Massey v. State

No. 4363

Supreme Court of Arkansas

October 2, 1944

Appeal from Greene Circuit Court; Walter Killough, Special Judge.

Affirmed.

Bon McCourtney and T. J. Crowder, for appellant.

Guy E. Williams, Attorney General and Oscar E Ellis, Assistant Attorney General, for appellee.

OPINION

Knox Justice.

Appellant was charged, tried and convicted of having aided and abetted a certain Mrs. Vernnie Bilyeu to conceal the death of her bastard male child. The charge against appellant was based on §§ 2991 and 2937 of Pope's Digest, as follows:

"Section 2991: If any woman shall endeavor privately, either by herself of the procurement of others, to conceal the death of any issue of her body, male or female that it may not come to light, although it cannot be proved that it was murdered, every such mother shall suffer the same punishment as for manslaughter."

"Section 2937: All persons being present, aiding and abetting, or ready and consenting to aid and abet, in any felony, shall be deemed principal offenders and indicted and punished as such."

These are in fact two separate sections of the act of December 17, 1838, § 2937 of Pope's Digest having been § 10 and § 2991 having been § 17 of the original act.

In his motion for a new trial, filed in the court below, appellant assigned eight alleged errors, each of which he urges here as ground for reversal of the judgment. We shall discuss these alleged errors in the order in which they appear in the motion.

Assignments one to four inclusive are to the effect that the judgment is contrary to the law and evidence and each of them. Two arguments are urged by appellant in support of these assignments: first, he contends, that only the mother can commit the crime, and that there can be in fact no accessory, and second, that even if there could be an accessory the appellant could not be found guilty here, because there is no proof that the mother sought or even desired concealment of the child's death, and since she would not be guilty as principal appellant could not be guilty as an accessory.

Appellant cites no authority in support of his first proposition. As previously pointed out, §§ 2937 and 2991 of Pope's Digest are separate sections of the same original act. It would appear, therefore, that the lawmakers intended that one who aided and abetted a mother to conceal the death of her bastard child would be guilty as an accessory under § 17, which is now § 2937 of Pope's Digest.

As to the second argument, that proof is lacking to show that the mother sought or desired to conceal the death of the child, it must be admitted that the mother although called by the state was an unwilling witness, and she apparently sought to protect appellant as far as possible. She did, however, testify that she told appellant "to take the baby and bury it." She testified further as follows: "I said after it was dead not to say anything just on account of the children." We think the jury were justified in drawing the inference that the mother intended that burial was to be carried out by appellant in such a way as to conceal death of the child in violation of the statute.

The fifth assigment of error is as follows: "the court erred in giving and reading to the jury instructions numbers 1, 2, 3, 4, 5, 6 and 7 over the objections and exceptions of the defendant." This is a general exception taken in gross to seven different instructions. It has been repeatedly held that a general exception to several instructions will not be entertained on appeal, if any of them is good. Owens v. State, 87 Ark. 317, 111 S.W. 466; Tiner v. State, 109 Ark. 138, 158 S.W. 1087; Graham v. State, 197 Ark. 50, 121 S.W.2d 892. Appellant in his brief does not now argue that all, or in fact any, of the instructions so given by the court was erroneous. We are convinced that none of the instructions so given was erroneous. Certainly all of them were not. Two merely define the crime in the words of the statute and, therefore, could not be erroneous.

The sixth assignment of error is as follows: "the court erred in refusing, over the exceptions of the defendant, to give and read to the jury defendant's requested instructions 1, 2, 3, 5 and 6." Again we have an exception in gross -- here because of failure on the part of the court to give instructions, instead of the act of the court in giving them. There is little, if any, difference in the rule on that account. It has been repeatedly held that an exception in gross to the court's failure to give several instructions will not be considered if any one of the instructions asked was bad. Matthews v State, 84 Ark. 73, 104 S.W. 928; Tiner v. State, 109 Ark. 138, 158 S.W. 1087; Rogers v. State, 133 Ark. 85, 201 S.W. 845. Some of the instructions requested were not proper declarations of law as applicable to the facts of this case, and the rules of law...