McDonald v. State

• Decision Date: 08 July 1912
• Parties: MCDONALD v. STATE
• Court: Arkansas Supreme Court

149 S.W. 95

104 Ark. 317

MCDONALD v. STATE

Supreme Court of Arkansas

July 8, 1912

Appeal from Scott Circuit Court; Daniel Hon, Judge; affirmed.

Judgment affirmed.

Cravens & Cravens, Edwin P. Hardin and Edwin Hiner.

1. It was error to consolidate the causes. 1 Bish. New Cr. Pr § 1043; 25 Mo. 174; 71 Id. 180.

2. Defendant was entitled to twenty peremptory challenges aside from those allowed John McDonald. Bish. Cr. Pro. vol. 1 § 1042; 5 S. & R. 59.

3. Evidence of threats was clearly admissible. 55 Ark. 598.

4. Evidence of former difficulty was clearly admissible. The presumption of innocence follows throughout the trial.

Hal L Norwood, Attorney General, and Wm. H. Rector, Assistant, for appellee.

1. The causes were properly consolidated. Besides, he consented. 93 Ark. 168; 1 Bish. New Crim. Pro. § 1018; Kirby's Digest, § 2343; 71 Ark. 180; Kirby's Dig., §§ 2219, 2229; 73 Ark. 150; 73 Id. 407; 74 Id. 355.

2. The testimony as to threats was properly excluded. 84 Ark. 128; 73 Id, 152.

3. The motion for new trial is too indefinite to challenge the instructions. 34 Ark. 737; 65 Id. 521; 75 Id. 111.

OPINION

FRAUENTHAL, J.

An indictment was returned against Dick McDonald for the crime of murder in the first degree, charging him with killing Bert Cantrell by shooting him with a pistol. His brother, John McDonald, was also charged with being a party principal in the commission of the same homicide, and a separate indictment was returned against him for murder in the first degree. Both the defendants, as well as the State, agreed that the charges brought separately against them should be consolidated and tried together. An order to that effect was made by the court, and they were thereupon tried jointly. The jury returned a verdict convicting the defendant Dick McDonald of manslaughter and assessing his punishment at confinement in the State penitentiary for a term of two years.

It is urged that the court erred in permitting the cases against the two defendants to be consolidated for trial, although done with their consent. We do not think that there is any merit in this contention. The court had jurisdiction to try the charges made by the indictments against these parties, and had obtained jurisdiction over the persons of both of them. The defendants were charged with the commission of the same crime, and, although they were indicted separately, they could also have been indicted jointly therefor.

All persons who participate in the commission of a crime are subject to prosecution and punishment therefor as if each of them had alone perpetrated the whole. All or any number of those participating in the crime may be charged together in one indictment, or, if the prosecuting officers so elect, each of the participants may be indicted separately. Joyce on Indictments, § 424; 1 Bishop, New Crim. Pro., § 463.

If the parties are indicted jointly, then they may be tried jointly. At common law, persons jointly indicted were not entitled to separate trials as a matter of right; the permission to sever the trials was left to the sound discretion of the court for cause shown. United States v. Marchant, 25 U.S. 480, 12 Wheat. 480, 6 L.Ed. 700. By our statute, however, it is provided that persons jointly indicted for a crime are entitled to separate trials; and by virtue of said statute they are entitled to separate trials as a matter of right. Kirby's Digest, § 2343. However, if neither of the defendants jointly indicted nor the State's attorney requires a separate trial, then such persons are rightly tried together. The trial, whether separate or joint, where all the defendants are charged as participants in the commission of the same crime, is a matter of procedure which does not affect the jurisdiction of the court. The defendants who are indicted jointly for the same offense may, by not requiring it, dispense with the right given them by statute to separate trials. Likewise, if charged by separate indictments for the same offense, they may, by express consent given thereto, be tried jointly therefor.

The defendant in his motion for new trial has assigned a number of errors which he claims were committed in the trial of the case, and some of them are urged by his counsel upon this appeal as grounds why the judgment should be reversed. These relate chiefly to rulings made relative to the introduction of testimony and instructions given and refused. We do not deem it necessary, however, to discuss or pass upon any of these alleged errors, for the reason that in our opinion the undisputed evidence in the case makes the defendant guilty of a higher degree of homicide than that of voluntary manslaughter.

The testimony on the part of the State tended to prove the following facts: About an hour before the killing, the deceased, Bert Cantrell, had gone to a store situated in the city of Fort Smith at the corner of Towson Avenue and South J Street, and was on the outside of the store watching two young men who were catching a ball. It was on the afternoon of June 2, 1911, and Cantrell was in his shirt sleeves. He was leaning against a box watching the play when defendant, his brother, John McDonald, and a third party named Henry Johnson, rode up in a buggy. The defendant got out of the buggy, and called to the deceased to come to him. As Cantrell went towards him, the defendant drew a pistol, and thereupon Cantrell turned and ran into the store, with the defendant pursuing him. About the time Cantrell ran into the front door, the defendant fired at him. Cantrell ran through the store to a door in the rear side, and defendant by that time had gotten near the middle of the store, when he fired at him again. As Cantrell went out of the rear door, the defendant fired a third time at him. After getting out the rear door, Cantrell fell, about sixteen feet from the store; and there was some testimony showing that after he had fallen the defendant shot him again and either turned his head over with his foot or kicked him in the face as he lay upon the ground. There were seven wounds on his body, made by three or four of the shots which took effect. Some of these entered in the rear of his thigh, and the fatal wound entered his back, ranging through his brain and skull. The testimony on the part of the State tended also to prove that Cantrell was unarmed, and had nothing in either hand as he ran from defendant and through the store; and at no time made any demonstration to do the defendant any injury.

The defendant testified that some years before the killing the deceased and his brother had a difficulty with him in which he was shot; that later the deceased had exhibited ill-feeling towards him, and that a short time before the killing he had threatened him and spoken to him in an angry manner. He stated that his brother and Johnson were going in the buggy to see a horse which Johnson had to sell or trade and requested him to go with them. In doing so, they passed the store where deceased was. He testified: "When I got to J Street, right at Moore's store, I was on...