McDaniel v. State

• Decision Date: 28 April 1958
• Docket Number: No. 4902,4902
• Citation: 313 S.W.2d 77,228 Ark. 1122
• Parties: Charlie McDANIEL, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 77

313 S.W.2d 77

228 Ark. 1122

Charlie McDANIEL, Appellant, v. STATE of Arkansas, Appellee.

No. 4902.

Supreme Court of Arkansas.

April 28, 1958.

Rehearing Danied June 2, 1958.

D. B. Bartlett, Clarksville, Bob Bailey, Jr., and Richard Mobley, Russellville, for appellant.

Bruce Bennett, Atty. Gen., Ben J. Harrison, Asst. Atty. Gen., for appellee.

WARD, Justice.

The principal issue on this appeal is the right of a trial judge to discharge a juror after all the jurors have been chosen and sworn to try the case.

Charlie McDaniel, appellant, was charged with murder in the second degree for killing one W. J. Morrow. He was convicted of voluntary manslaughter and sentenced to serve a term of 2 years in the penitentiary. Some of the details surrounding the killing are in dispute but we find ample evidence in the record to support the jury's finding.

The killing took place at the rural home of deceased on July 2, 1956. The record discloses that there had previously been some difficulty between them over the possession of the place where the deceased and his family were living. On the fatal day some of appellant's cows were found in the deceased's garden while the deceased was away from home. He returned about 8 P.M. and while he was eating supper his wife told him about the cows. About this time appellant and his wife drove up to the house in a truck and he began mending the garden fence. According to deceased's wife Morrow walked outside and said, 'Charlie what are you doing?' Appellant replied, 'I am fixing the fence.' The deceased said, 'Leave it alone and I will fix it in the morning.' Thereupon as deceased was walking toward the garden appellant shot him. After the first shot witness heard 2 or 3 more shots. According to Mrs. Morrow her husband did not have a pistol. This version of the shooting was sharply contradicted by appellant's wife. According to her, while the deceased was approaching appellant, his stepson, Arnie Rhoads, was behind him with a shot gun in his hand. When deceased was about 17 feet away from appellant he said 'Damn you, I said for you to leave that fence alone, and I will fix you and it too.' Then the deceased reached into his hip pocket with his right hand, and, when he was about 6 feet away, appellant shot him. There were other conflicts in the testimony pertaining to the killing, but they were resolved by the jury under proper instructions by the court.

One. The principal question arose in the following manner. All 12 jurors were chosen and sworn to try the case just before the noon hour, when court was recessed until 1:45 P.B. Before the recess was taken the court dismissed all unused members of the regular and special jury lists 'subject to further services upon order and direction of the court * * *.' When court was reconvened at the appointed time the court made the following statement:

'It has been brought to the attention of the court that after the examination of the jurors on the voir dire examination by the attorneys and after the jury had been duly-sworn to try the case in question, that one of the Jurors, Mr. John E. Blackard, is related to the defendant, Mr. McDaniel, in the case, and without suggesting that Mr. Blackard would not be a fair and impartial juror in the case and that he would not conscientiously return such verdict as he thought justified under the law and the evidence, the court thinks that it is the best policy in compliance with the law on the face of the statements made that the juror is related within the fourth degree of consanguinity or affinity, and that he should be excused. The court at this time will excuse Mr. Blackard from service on the jury. I am going to ask that counsel proceed with the special jurors until the panel is selected.'

By Mr. Bailey: 'Save our exceptions, and the further objection, I also object to selecting another juror from the special list because the special list was discharged for the term, and only the ones that happen to be in Clarksville or in the Court House are available.'

It is earnestly and ably contended by appellant that the above action on the part of the court in dismissing Blackard constituted reversible error. Section 39-102 Ark.Stats. provide that:

'No person shall serve as a petit juror who is related to either party to a suit within the fourth degree of consanguinity of affinity. Provided, further, that any prospective juror who qualifies generally for service in a cause, and is found to be related within the fourth degree of consanguinity or affinity to any attorney engaged in the trial of the case may be peremptorily challenged or cause by any attorney or attorneys representing the other side of the case.'

As we understand appellant's reasoning in support of the above contention it may be considered more clearly under two separate divisions.

1. It was too late, says appellant, to discharge Blackard after the jury was completed and sworn in, citing Ark.Stats. § 43-1914 and § 39-115. The first section provides that a challenge to a juror 'must be taken before he is sworn in chief, but the court, for a good cause, may permit it to be made at any time before the jury is completed.' The latter section provides exceptions shall not be taken to any juryman for cause after he is taken upon the jury and sworn as a juryman. It is urged by appellant that the statutes mean what they say and must be followed. The conclusion then drawn by appellant is that he had been placed in jeopardy, and therefore the court's action violated his constitutional right of a trial by jury. This reasoning however has been discarded by this court. In the case of Harris v. State, 177 Ark. 186, 6 S.W.2d 34, 35, the jury had been impaneled, sworn to try the cause, the opening statement of counsel made, and the testimony of one witness heard, when the court discharged a member of the jury [who was replaced by another juror] because it was disclosed that the challenged juror was on the defendant's bond. It was there held that the defendant had not been placed in jeopardy. In so holding the court relied on §...