Nash v. State

• Decision Date: 24 December 1904
• Citation: 84 S.W. 497,73 Ark. 399
• Parties: NASH v. STATE
• Court: Arkansas Supreme Court

84 S.W. 497

73 Ark. 399

NASH v. STATE

Supreme Court of Arkansas

December 24, 1904

Appeal from Desha Circuit Court, Watson Ditsrict, ANTONIO B. GRACE Judge.

Reversed.

Reversed and remanded.

X. O Pindall and Campbell & Stevenson, for appellant.

The court erred in setting aside the indictment for manslaughter and referring the case to the grand jury of the February term, 1903, in the absence of the defendant. 71 Ark. 47; 24 Ark. 620; 10 Ark. 318; 5 Ark. 431; Sand. & H. Dig. § 2067; 50 Ark. 542. The court erred in refusing to allow the defendant to introduce evidence to show that the indictment was concurred in by only eleven grand jurors. 4 Greenleaf (Me.) 380; Sand. & H. Dig., §§ 2054, 2070; 36 Me 128; 14 P. 768; 6 Abb. N. Cas. 33; 53 Ala. 481; Greenleaf, Ev., § 252; 63 N.C. 595. The court erred in refusing to continue the case. Sand. & H. Dig., §§ 2158, 5797; 16 Ill. 507; 92 Ky. 68; 60 Ark. 564. The eviednce of Gray Dunn was improperly admitted. 69 Ark. 648. The court erred in commenting upon the evidence of Gray Dunn. 51 Ark. 147; 28 Fla. 113, 142; Underhill, Crim. Ev., § 215. The purported testimony of M. W. Qilling, Sr., before the grand jury was improperly admitted. Sand. & H. Dig., §§ 2043, 2042, 2055. It was error for the court to tell the jury that any verdict reached after midnight could not be received until Monday morning. 20 Enc. Pl. & Pr. 1194; 167 U.S. 178; 140 U.S. 118, 131. It was error to refuse an instruction on the crime of manslaughter. 36 Kan. 497; 52 Kan. 335; 27 Tex.App. 16; 28 Tex.App. 542; 110 U.S. 582; 52 Ark. 345; 43 Ark. 289. The court erred in its charge upon the question of self-defense . 67 Ark. 605; 58 Ark. 57. The court erred in defining what constitutes a reasonable doubt. 69 Ark. 537. The court erred in refusing to give instruction No. 7 1/2 requested by defendant. 20 Tex.App. 665.

George W. Murphy, Attorney General, for appellee; White & Altheimer, of counsel.

The indictment for manslaughter was properly set aside. 71 Ark. 50; Sand. & H. Dig., §§ 2060, 2061, 2249, 2185. The testimony offered by defendant to show that only eleven members concurred in the finding of the indictment was properly excluded. Sand. & H. Dig., §§ 2069-2073, 2126, 2054, 1752; Whart. Cr. Pl. § 379; 16 Conn. 457; 20 Mo. 238; 4 Denio, 133; 39 Ia. 318; 46 Ia. 88; 146 Ill. 197; 20 Mo. 345; 24 Ind. 156; 10 Enc. Pl. & Pr. 400; 31 Fla. 340; 29 Ill.App. 532; 4 Greene (Ia.) 125; 1 Kan. 313; 6 Met. 224; 2 Greene (Ia.), 270; 93 N. Car. 552; 1 Wash. Ter. 409. The doctrine of self-defense was properly declared. 69 Ark. 653. The instruction on a "reasonable doubt" was proper. 69 Ark. 537.

X. O. Pindall and Campbell & Stevenson, for appellant in reply.

In dismissing the indictment for manslaughter, the defendant should have been present. 44 Ark. 332; 5 Ark. 431; 10 Ark. 205; 24 Ark. 620, 629.

BATTLE, J. HILL, C. J., did not participate.

OPINION

BATTLE, J.

During the August term, 1902, of the Desha Circuit Court for the Western District of Desha County, the grand jury returned against Martin Nash an indictment for manslaughter, alleging that he, on the 20th of June, 1902, in said district and county, and in this State, unlawfully, wrongfully, feloniously, and upon a sudden heat of passion, killed James Cross, Jr., by shooting him with a shotgun, etc.

At the next February term, the said court referred the charge to the grand jury of that term, and they returned against appellant an indictment for murder in the first degree, alleging that he, in said district, county and State, on the 20th of June, 1902, unlawfully, willfully, feloniously, with malice aforethought, and with premeditation and deliberation, killed and murdered James Cross, Jr., by shooting him with a double-barreled shotgun, etc.

At the August term, 1903, of the court, the defendant filed a motion to set aside the second indictment, alleging, among other things, the following: "That on the 2d of February, 1903, the court, in the presence of the grand jury, stated that the grand jury, at the preceding term, found an indictment against him, charging him with manslaughter; that since then a warrant [affidavit?] charging him with murder had been filed with the judge of the court, and that he therefore referred the investigation of it to the grand jury of that term, the February term, 1903; that he, defendant, by his attorney, in the presence of the grand jury, objected and protested against the reference of said charge, on the the ground that such action was taken in his absence, and without request of the prosecuting attorney, or any member of the last grand jury; that his objection was overruled; that all this was done while he was in prison, and prevented from being present, and that he by his attorney excepted. That he was not present in court at the February term, 1903, when the present grand jury was impaneled and charged, but was in prison and unable to attend. That the alleged indictment for murder, upon which he was then held, was not regularly or lawfully found, for the reason that only eleven members of the grand jury for the February term, 1903, voted for it, or concurred in finding it, and that he was ready to prove same." This motion, which concluded with an offer to prove all of its allegations, was overruled, and defendant excepted.

The defendant was arraigned upon the indictment for murder in the first degree, pleaded not guilty, and was tried before a jury.

Evidence was adduced in the trial tending to prove, among other facts, the following: On the night of the 18th of June, 1902, James Cross, Jr., was killed. A short time before the killing James C. Cross, the father of the deceased, and the defendant had an altercation, in which insulting language was used by both parties in reference to each other. On the night of the killing a steamboat landed at a certain place used for that purpose. Mrs. Cross, the wife of James C. Cross, the father, left on the boat to go to Pine Bluff. James C. Cross, and his and her sons, the deceased, Flournoy Cross and Clay Cross, were there to bid her goodbye, and to attend to business. The defendant was there also. He was armed with a double-barreled shotgun, and the father and sons were armed with pistols. James C. Cross, the father, discovering that the defendant was there armed with a shotgun, accosted him in a rough way about coming there armed. The defendant made some response, and the discharge of firearms immediately followed, and James Cross, Jr., was killed. The evidence as to the commencement of the firing is conflicting. A part of it tended to prove that the defendant fired the first shot, and a part that the Crosses did so. Witnesses testified that the deceased took no part in the conflict, said nothing to the defendant, and made no attack upon him. The defendant testified that the Crosses shot at him first, and he returned the fire, turned and ran, without knowing that he had hit any one.

M. W. Quilling testified in behalf of the defendant. He testified that he was at the landing at the time the killing occurred, and heard, but did not see, the shooting; that "five or six pistol shots were first fired, then some gun shots, and then some more pistol shots;" and that, after he heard the "five or six pistol shots," he "heard two distinct reports of a shotgun, one right after the other;" that he is "positive" that he heard only "two shotgun reports." To discredit the witness, it was shown that he testified before the grand jury, and that his name signed to what purported to be his testimony taken before the grand jury was his signature, but he did not remember that the testimony was read to him; and so much of it as is in the following words was read as evidence over the objections of the defendant: "At this time the negro was going toward the house. Cross, Sr., then turned toward the corner of the warehouse, and began working at his pistol, as if to see if it would work. He then walked out of the house, and then the shooting commenced quickly. There were six or seven shots fired, or pistol shots, then there were three gun shots that were fired; then more pistol shots were fired."

The court, over the objections of the defendant, instructed the jury, in part, as follows:

"25. If you should find, from the evidence, beyond a reasonable doubt, at the time the defendant went to the landing, he had reasonable grounds for believing that if he went there he would be attacked by Col. Cross, or some of his sons, or all of them, and that he armed himself, and went there, intending and willing to enter into mortal combat with them, and that by his acts and demonstrations he caused or provoked an attack to be made upon him, with intent then and there to kill either Col. J. C. Cross or one of his sons, and that he was so attacked, and that he killed the deceased, then, having voluntarily entered into the contest, he cannot claim the benefit of the plea of self-defense, and you should find him guilty of murder in the first degree."

And the defendant asked, and the court refused, to instruct the jury as follows:

"4. Manslaughter is the unlawful killing of a human being without malice, either express or implied, and without deliberation. If you find in this case that the defendant, Martin Nash, at the time and place alleged in the indictment, fired the shot which resulted in the death of James Cross, and that in doing so the defendant acted voluntarily upon a sudden heat of passion caused by a provocation to a reasonable man sufficient to make that passion irresistible, and that this feeling was prompted by act of the deceased. or those acting with him; if such acts you find amounted to an apparently sufficient provocation to make this passion irresistible, you must then find that the killing was not...