Nail v. State, 4937

• Decision Date: 02 November 1959
• Docket Number: No. 4937,4937
• Parties: William Frank NAIL, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 836

328 S.W.2d 836

231 Ark. 70

William Frank NAIL, Appellant, v. STATE of Arkansas, Appellee.

No. 4937.

Supreme Court of Arkansas.

Nov. 2, 1959.

Rehearing Denied Dec. 7, 1959.

John Harris Jones and Wilton E. Steed, Pine Bluff, for appellant.

Bruce Bennett, Atty. Gen., by Thorp Thomas and Ancil Reed, Asst. Attys. Gen., for appellee.

HARRIS, Chief Justice.

William Frank Nail, appellant herein, was convicted of the crime of Murder in the First Degree, and his punishment fixed at death by electrocution. From the judgment so entered, comes this appeal. Numerous assignments of error are contained in appellant's motion for new trial, the first several dealing with the sufficiency of the evidence.

Proof reflected that Nail, James Moss, and James Leroy Montgomery, were convict trusties at the state penitentiary farm located at Tucker. Nail and Moss were riflemen on the plow squad, and Montgomery was the rider. ¹ According to the State's evidence, Nail was fixing the bridle on his horse, and when the horse kept jumping about, he picked up a piece of leather and began hitting the horse with it. Montgomery was sitting on a box, preparing to eat. Rising, and starting toward Nail, he told the latter to quit whipping the horse. Appellant replied that it only concerned him (Nail) and Captain Bruton, and when Montgomery continued walking toward him, appellant drew his pistol. The rider then backed off and stated, 'You won't get a chance to pull that pistol on nobody else'. According to witness Moss, Montgomery 'started to turn and walk off and about that time I heard Frank's rifle go off and he fired the first shot then. * * * Montgomery backed up and I backed up out of the way, too. Montgomery backed up and I walked out of the way and Montgomery run around the other side and Frank fired again. I told Montgomery, I said, 'Montgomery, Frank is mad, you had better leave while you can', I said, 'You had better run, you had better go to the building or do something'.' Montgomery ran toward the bayou, while Nail mounted his horse, and according to the witness, fired two more shots. Montgomery ran under the bridge at the bayou. Further, from the testimony of Moss: 'Montgomery told him, he said, 'I am not going to the man, I will call it off', something like that, something of that nature, and Frank told him, 'All right, come on out'.' Montgomery then walked out from under the bridge, holding up his hands, and Nail again fired. Montgomery fell. Other witnesses, in substance, corroborated Moss' testimony. According to witness Jimmy Mullins, Nail 'went down and told him to come out from under the bridge, that he wasn't aiming to hurt him. He finally come out. Q. Did Mr. Montgomery say anything? A. Yes, sir, he come out with his hands up begging. Q. What did he say when he was begging? A. Well, he said he wasn't aiming to tell on him--it was all over with. Q. Then what happened? A. Frank Nail said something, yes, it was over with, and up and shot him.'

According to Dr. Harold Morris, who was acting as coroner of Jefferson County, three bullets struck Montgomery, and he died as a result of such wounds. The proof was undisputed that deceased was unarmed at all times during the altercation. The evidence was certainly sufficient to sustain a first degree murder conviction.

It is urged in assignments No. 6 and No. 7, and objections made during the trial, that the court erred in admitting into evidence certain photographs depicting the scene of the alleged murder. The objection was based on the fact that the scene was not the same as on the day of the killing, in that some equipment and two automobiles were shown in the photographs, which were not so located on the day of the alleged crime. Evidence in the case reflected that the house, road, and bridge, shown in the pictures, were the same as when the shooting took place, and it was stated during the testimony that no automobiles were parked there at the time. The same contention was made, but rejected by this Court, in Williams v. State, Ark., 323 S.W.2d 922.

By assignment No. 10, and objections made during the trial, appellant claims the court erred in admitting into evidence his confession. Counsel contend that the confession was imcomplete, and that Nail lacked the mental capacity to understand the confession. Buck Oliger, a deputy sheriff, who took, and wrote the confession, stated that he included everything that appellant told him at the time of the taking. The confession was taken in question and answer from, signed by Nail, and witnessed by two other persons. If it was felt that Nail had made other statements which did not appear in the confession, counsel were at liberty to question the witness in detail. In fact, the court advised counsel that Oliger could be interrogated about any additional statements made by appellant. This action of the court conformed to our ruling in Whitten v. State, 222 Ark. 426, 261 S.W.2d 1. Relative to the contention that Nail lacked mental capacity to understand the confession, it was obviously appellant's duty to offer proof to that effect, and this not having been done, he was in no position to complain.

Assignments No. 8 and No. 9, together with objections during the trial, maintain that error was committed by the court in permitting the State to re-examine certain witnesses, it being contended that the matters under re-examination should have been included on direct examination. The witness Moss was asked if the photographs correctly represented the scene of the homicide at the time it occurred. Since the introduction of the photographs had been objected to on the ground that the scene portrayed was not the same as on the day of the murder, the evidence was proper rebuttal. Oliger was also recalled to testify in regard to taking Nail's confession. We have held that the reopening of a case either for the re-examination of a witness, or the taking of further testimony after testimony on both sides has been concluded, is a matter within the discretion of the court. Simmons v. State, 184 Ark. 373, 42 S.W.2d 549.

Numerous assignments of error deal with the instructions given by the court, and the refusal of the court to give verious requested instructions. Appellant specifically objected to the court's instruction No. 12, which reads as follows:

'You are instructed that the premeditation and deliberation to do murder may be formulated in the assailant's mind upon the instant. It does not have to exist in the mind an appreciable length of time. All that is necessary is for it to exist when the assailant commits the act; so if you find from the evidence on the whole case, beyond a reasonable doubt, that William Frank Nail, wilfully, deliberately, maliciously, with premediation, killed James Leroy Montgomery then you will find him guilty of murder in the first degree unless you find the defendant insane as defined in these instructions.'

This specific objection was based on the contention that the instruction was in conflict with another instruction dealing with premediation; that it gives unnecessary emphasis upon a negligible period of time as involved in the element of premeditation, is incompetent in failing to take into consideration the low mentality or mental defectiveness of the accused, and is vague. We find no conflict, nor vagueness, and further find that the instruction correctly states the law in conformity with numerous holdings of this Court, going as far back as 1869. McAdams v. State, 25 Ark. 405. See also Jackson v. State, 133 Ark. 321, 202 S.W. 683; Jenkins v. State, 222 Ark. 511, 261 S.W.2d 784. As to that part of the objection relating to the failure to include a reference to the alleged low mentality of the accused, suffice it to say that the court's instructions Nos. 14 and 15, given on the court's own motion, properly instructed the jury as to the defense of insanity. Of course, the fact that one is simply of 'low mentality', is no legal defense to the commission of crime, unless of such low mentality as to render him incompetent. We have also examined the other instructions submitted, and find no error therein, nor in the court's refusal to give requested instructions.

By assignment No. 18, appellant contends that the court erred in allowing the jury to separate. Ark.Stats. (1947), § 43-2121, permits this to be done in the discretion of the trial court, and we held in Borland v. State, 158 Ark. 37, 249 S.W. 591, that this was entirely proper, no abuse of discretion having been shown, and it not appearing that any of the jurors were subject to improper influences during the dispersion of the jury. Likewise, in the instant cause, there is no showing that appellant was prejudiced by the action of the court permitting the jurors to separate. Preceding the separation, the court admonished the jury as follows:

'Now, gentlemen, I want you to remember this distinctly, in all cases when you are permitted to go, the court has confidence in you, we are going to permit you to separate and go to your respective homes--do not discuss this case and do not permit anyone to discuss it with you because that would be highly improper and entirely wrong, and I am sure you will not do that. I want you to bear in mind, keep in mind, what I told you this morning, don't discuss it with anyone. That means what it says, anyone, and do not permit them to discuss it with you--should they mention it to you, tell them you are on the jury and under orders of the court not to discuss it and as I said again this morning, if they insist it, bring it to the court's attention, and we will attend to that. With that, be back in the morning.'

There was no request that the jury be admonished not to read newspapers, or listen to radio or television programs, regarding the trial.

It is contended that the trial court erred in denying appellant a new trial on the ground that none of the jurors had read a newspaper article about the trial....