Mullen v. State

• Decision Date: 15 February 1937
• Docket Number: No. 4020.,4020.
• Citation: 102 S.W.2d 82
• Parties: MULLEN v. STATE.
• Court: Arkansas Supreme Court

102 S.W.2d 82

MULLEN v. STATE.

No. 4020.

Supreme Court of Arkansas.

February 15, 1937.

Rehearing Denied March 15, 1937.

Appeal from Circuit Court, Lawrence County, Eastern District; S. M. Bone, Judge.

John Mullen was convicted of receiving stolen property, and he appeals.

Affirmed.

Roy Mullen, W. P. Smith, and O. C. Blackford, all of Walnut Ridge, for appellant.

Jack Holt, Atty. Gen., and Jno. P. Streepey, Asst. Atty. Gen., for the State.

MEHAFFY, Justice.

The appellant was convicted of receiving stolen property, and his punishment fixed at one year in the state penitentiary. The appellant filed petition for a change of venue, and a supporting affidavit signed by nine qualified electors. The persons who signed the affidavit were questioned in court, and, after hearing the evidence of the witnesses, the court overruled the petition for a change of venue. The case was then tried and resulted in a verdict of guilty, and a judgment as above mentioned. This appeal is prosecuted to reverse the judgment of the circuit court.

Guy Morgan, one of the supporting witnesses for change of venue, testified that he lived at Hopewell, Lawrence township; that he had been in Ashland township; had heard lots of talk about the case; and believed that the prejudice in his neighborhood was so strong he could not get a jury that would give him a fair trial. This witness, who lived in Lawrence township, said he thought he had been in Ashland township, but he did not know the name of any person he had heard talk; he was asked if he had been in several townships, naming them, and he said he had not, and could not say that persons in the other townships were prejudiced; he also testified that there was no more talk about this case than about any other ordinary crime of stealing; and he said he would not say that there were not men in his township who could be obtained that would give him a fair trial, and said he would not swear that there could not be a jury impaneled there that would give him a fair trial. He knew nothing about the other sections of the county, except the township where he lived.

Fred Buerklin, one of the supporting witnesses, testified that he did not believe Mullen could get a fair trial. This witness lived in Duty township. When asked to name witnesses he had heard talk, he named Gus Land, and said it had been about three months since he and Gus Land were at Mullen's. He also mentioned as persons he had heard talk about the case Artie Garner and Tom Penn, but he did not hear either of these witnesses say he could not get a fair trial; just talked about this case and murder cases in the county, but he thought there was more prejudice about this case than about a murder case. This witness, when asked how he came to be a witness, said he just supposed they needed somebody from that township and he was a good friend of John's; had been friends a number of years. Most of the talk this witness had heard had been around Portia, in his own township.

C. L. Bottoms, another witness who signed the affidavit, testified that he lived in Campbell township; he had not seen anybody in any of the other townships, and did not know whether anybody in the other townships were prejudiced or not. He stated he knew that, inasmuch as the appellant had been on trial there, it would be hard to get a jury to give him a fair trial. He also stated: "Where a fellow has been tried four or five times and charged with four or five offenses, it is natural to get the people talking about him." This witness had heard some people say that Mullen ought to be sent to the penitentiary; that there were about ten indictments against him there from people losing chickens and other property.

M. J. Kelly, another supporting witness, testified that he lived at Hoxie in Boaz township, and had been in two townships in the eastern district, just passing through them, and that he formed his opinion from the newspaper publicity, and the general opinion is what he formed his opinion from. This witness testified that he did not think it would be necessary for him to name any individual. When asked if he thought appellant could not get a fair trial, he said: "I'll tell you. There are so many chickens that are stolen that it is a general opinion of the people and it would be a hard matter for him to get justice. Well he has many indictments found against him and with as many indictments found against one man as is found against John Mullen it is a hard matter to get an impartial trial." This witness said that some of the people he heard talk were related to appellant by marriage, and witness was kin to some that were in with appellant.

The other witnesses testified to substantially the same facts that were testified to by the witnesses mentioned.

Appellant states that to take the court's view, he still contends that at least two witnesses, Dr. J. C. Land and Homer Mays, testified that they had been in numbers of townships and heard the case discussed, and that, leaving out the other witnesses, these two were sufficient to show the minds of the inhabitants and electors were such that appellant could not obtain a fair trial.

Dr. J. C. Land testified that he had been all over the eastern district two or three weeks after the occurrence; that he had no interest in the matter whatever and did not pay attention to whom it was, and could not name any person he had heard talk. He also testified that he had testified for John Mullen in every case he had had in that court; that is, when asked that question, he said he might have, he did not know.

Homer Mays testified that he lives in Walnut Ridge, but had been in a number of townships, and he said he worked a crew of men, about 175 or 200, at different times and would stop at Mr. Roberts' store, or Allisons', and on the street is all the talk he heard about it; that the sentiment was so strong against him he could not help but notice it; that the feeling was high against appellant, and all that he heard was that he was guilty and ought to be sent on.

When the petition for change of venue was overruled, the state introduced witnesses, and James Perry, a witness eighteen years of age, who had entered a plea of guilty to stealing the property of the Cart-Ritter Corporation, tells where he got the property, and says he took it to John Mullen's; Mullen was there when he arrived with it and unloaded it. He said they stole two jacks, one sledge hammer, one chopping axe. They took the property over to Mullen's on a mud boat and with Mullen's team, and witness told Mullen where he got it; told him he stole it and Mullen did not say anything about it; was working for Mullen at the time.

E. A. Cart, witness for appellee, testified that he is engaged in the pump and well business; is president of the Cart-Ritter Corporation; the company lost some tools in February; found part of them at John Mullen's place; and testified as to the value which was more than $10; witness had never seen Mullen before; lost a number of things, naming them, and found the jacks at Mullen's and recovered them, and some tackle; was present when conversation was held at Mullen's house; Mullen was also present; two small jacks were not property of the Cart-Ritter Corporation; Mullen said somebody else brought it there. He told the sheriff when the sheriff asked him if he knew that it was stolen property, "I thought it was stolen property." He said not to bring it there; it was stolen. Witness said they got only three jacks that had been stolen; he could not identify the steel cable; Mullen did not claim it, said some one else brought it there; Mullen said he thought the property was stolen; he never claimed ownership except the cable at Minturn; said that was his.

Thurman Holder, witness for state, a deputy sheriff, was down at Mullen's with officers the first day; looking after stolen chickens, saw tools that belonged to Ritter Company.

Bert Frazier, a state ranger, testified that he was at Mullen's with other officers and found the property there.

John Mullen, witness for himself, testified that the jacks were not his and did not know they were on the place; did not see them until the sheriff had his hands on them; was sick when they brought them there; they did not tell him anything about it; he had been moving boilers and engines and dredge boats and had pulleys and cables of his own; also moved a sawmill; did not know the jacks were on the place. Witness testified that the wire cable and pulleys belonged to him. Q. D. Hunter and James Perry confessed to stealing the property, and said they brought it in and put it in his shop and told him about it. Witness says they did not tell him a word about it; he never saw the jacks until the sheriff came; did not claim them; denies telling Deputy Sheriff Holder or any other person that he told the boys that they ought not to have gotten the stuff and brought it there; did not know it...