Miller v. State

Decision Date11 April 1910
Citation128 S.W. 353,94 Ark. 538
CourtArkansas Supreme Court

Appeal from Poinsett Circuit Court; Frank Smith, Judge; affirmed.

Judgment affirmed.

Going & Brinkerhoff, for appellant.

A continuance should have been granted. 34 So. 479; 42 So. 167; 60 S.E. 211; 83 S.W. 690; 81 Am. St. 150; 37 So. 809; 88 S.W 107; 86 S.W. 327; 65 Ga. 332; 8 Ia. 536; 60 Ark. 564. Due diligence was used to secure the attendance of the witness. 34 So. 479. The State failed to prove the corpus delicti. 60 S.W. 771.

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

It was not error to refuse the continuance. 41 Ark. 62; 40 Ark. 114; 26 Ark. 323; 54 Ark. 243; 41 Ark. 153; 51 Ark. 167; 62 Ark 543; 34 Ark. 26; 76 Ark. 290; 70 Ark. 521; 71 Ark. 62; 26 Ga. 271; 87 Ia. 306; 82 Ind. 580; 89 Ind. 187; 33 La.Ann. 781; 106 Ga. 400; 116 Ga. 583; 115 Mo. 471; 9 Wash. 204; 54 Ark. 243; 77 Ark. 146; 26 Tex.App. 443; 23 Id. 388; 30 Id. 64. The corpus delicti was proved. 34 Ark. 720; 48 Ind. 109; 171 Mass. 461; 14 Nev. 79; 101 Pa. 38; 68 L.R.A. 33.

FRAUENTHAL J. BATTLE, J., dissents on the ground that continuance should have been granted.



Defendant, C. M. Miller, was arrested on June 18, 1909, charged with the killing of A. Flood. A few days thereafter, upon a preliminary hearing by the coroner, he was committed to await the action of the grand jury. At the following October term of the circuit court he was indicted by the grand jury of Poinsett County, charged with the crime of murder in the first degree by killing A. Flood on or about June 10, 1909. He was tried by a petit jury of said county, and was convicted of the crime of murder in the first degree, and now presents to this court this appeal, to obtain a reversal of that conviction.

The testimony which was adduced upon the trial of the cause established the following facts: A Flood was a fisherman, unmarried and about fifty or sixty years old, and for the past ten or twelve years he had made his home up and down the St. Francis and Little Red rivers, in Arkansas. For about one year and a half prior to June 4, 1909, he had lived on the banks of the St. Francis River in Poinsett County, about twelve miles from Marked Tree. Here he had built a houseboat, and had accumulated some personal property, consisting of a gasoline and other boats and the trappings of a fisherman, in addition to his immediate personal effects. He had also accumulated about $ 515 in money, which he kept upon his person in a pocketbook. His nearest neighbor lived about one-half mile distant from him, and he mingled freely and frequently with the people in that community, as well as going frequently to Marked Tree, the nearest town to his home. He had a brother, who lived in Randolph County, with whom he communicated and corresponded regularly, writing him as often as once each month; and his brother received a letter from him shortly after June 4, which had been written just prior to that date.

About April 1, 1909, Flood met the defendant at Lake City for the first time. The testimony does not indicate how long defendant had been at that place, or where he came from; but he was out of employment and without any occupation; and Flood invited him to go to his home and join him in his fishing business. Defendant stated afterwards to a witness that when Flood agreed to take him to his home he had $ 5.30, and this was all the property he possessed. He went with Flood, and the two lived in the houseboat alone from that date until June 4, 1909, when Flood disappeared.

About one week prior to June 4, defendant said to a witness that he would own all of Flood's outfit in about a week, and told him to keep it quiet and say nothing about it. A witness testified that he was in company with defendant and Flood on June 4, and left them together at the houseboat about 4 P. M. of that day. Another witness testified that Flood had made an engagement to meet him at the witness' home on the following day with reference to a business transaction; and it appears from the testimony that Flood had made an agreement with another party to see him some days later relative to some business matters. But on June 4, 1909, Flood disappeared, and he is not known to have been seen by any one since that date.

On the following day defendant went to one of the neighbors in order to obtain his assistance in running the gasoline boat up the river to Marked Tree, and stated to him that he had bought all of Flood's property for $ 225; that on the evening before Flood had "skiddooed," that he had met a man on the river who desired his services in building a boat, and that Flood had gone with him to Madison, a place some thirty-five or forty miles distant; that upon leaving with this man Flood had sold his outfit to defendant, upon which defendant paid him $ 90 at that time. At another time defendant said that Flood had gone to Memphis.

On the day following Flood's disappearance (June 5, 1909), defendant took his neighbor and a number of persons on the gasoline boat to Marked Tree, and stated that he wanted to get there before the bank closed, and that he was expecting money to be sent him. They did not get to Marked Tree until after the bank had closed, and the parties remained there over night. About 10 o'clock on that night defendant was in a saloon with one of the parties and suddenly went out of the back door, and soon returned and exhibited a large roll of paper money, seemingly several hundred dollars. He stated that when he went out of the saloon a man spoke to him and asked him if his name was Miller, and upon answering that it was the man said that he was the person he was looking for, and thereupon paid him the money.

On June 7 defendant went to Memphis, where a reunion of the Confederate Veterans was in session, and remained in that city until June 10. On that day he met a man in, a saloon by the name of George Ashmore, who was then a stranger to him. He introduced himself to Ashmore as Flood, and requested him to go with him to his fishing place near Marked Tree, and exhibited to him his money and told him that he, too, could make money at fishing. This man went with him, and upon his return from Memphis defendant introduced the man as Bob Horton. The two parties remained at the houseboat until about June 18, when defendant was arrested.

Upon the day before the arrest, there were found a number of parts of a human body about two hundred yards below the houseboat, which had caught in the drift. These pieces included both elbows, parts of both legs, some parts of the abdomen and one thigh. Nearer to the houseboat there was discovered a log upon which were a number of hacked places, and in which pieces of flesh and bones were found, and a number of human hairs, and a piece of badly decayed flesh was found near the log. There was also found a piece of a leg and a human foot. The foot thus found was deformed and had a peculiar knot upon the instep. When Flood was about thirty years old, his right foot was injured, so that the instep was broken, and a peculiar knot had grown or risen upon the upper part of the instep. Upon this account his foot was deformed, and he walked as though he was crippled. The part would become sore and irritated at times, and would require the attention of a physician. Dr. J. A. Forgus, who was a graduate of a school of surgery, and who had practised surgery and medicine for a great number of years, waited upon Flood as a physician, and not long before his disappearance he had dressed and attended to his deformed foot. He testified that the dismembered foot that was found was the foot of Flood, and that he recognized it, and that he could and did identify it as Flood's foot on account of its peculiar deformity.

At the time of defendant's arrest, these parts of a human body were shown to him, and he was asked if he knew anything relative to them or the whereabouts of Flood. He made no answer and no statement, but only hung his head. Later, there was found upon the defendant Flood's watch and $ 91.95, in money. In the houseboat all of Flood's clothes and his shoes and personal effects were found. Amongst these was a suit of clothes that he had worn on June 4th, the day he disappeared, and his spectacles, Defendant had taken possession of all these clothes and personal effects, as well as of the houseboat and the boats which had been owned by Flood, and claimed that he had acquired them from Flood.

The floor of the houseboat appeared to have been recently scrubbed until the fibers of the wood stood out; but deep stains as of blood appeared upon the floor, and splotches of dry blood were found upon the bedstead. Some days later, the lid of the heating stove in the houseboat was raised, and gave forth a stench and odor as of burned flesh. The ashes of this stove were examined, and among them were found a number of pieces of charred bones and a number of human teeth.

A fellow prisoner in the jail testified that sometime after defendant had been placed in jail he made a written statement relative to the killing of Flood in which he set forth that some one other than himself had done the killing, and he said that he desired to get the statement published in some paper, so that his relatives might see it and come to his assistance. This fellow prisoner also testified that later defendant told him that he had written a letter to a relative, and had given it to a colored woman, who had visited a colored prisoner in the jail, for her to mail, and that he was fearful that the letter might fall into the hands of the officers, and stated that that if it did it would convict him of the murder of Flood.

We have thus set forth in a general way the facts and...

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