Pate v. State
| Decision Date | 27 March 1922 |
| Docket Number | 258 |
| Citation | 239 S.W. 27,152 Ark. 553 |
| Parties | PATE v. STATE |
| Court | Arkansas Supreme Court |
Appeal from Miller Circuit Court, George R. Haynie, Judge; reversed.
Judgment reversed and cause remanded.
Will Steel and Pratt P. Bacon, for appellant.
The regular panel of petit jurors having been exhausted, the completion of the jury should have been selected from the bystanders; bystanders, meaning those present in the court room. C. & M. Digest, § 6378.
The hypothetical question embraced all the facts in evidence, and the court erred in sustaining an objection to it. 120 Ark 530; 126 Ark. 455; 146 Ark. 509.
If the defendant made certain statements while under the influence of opiates, the jury should not have been allowed to consider them, and the court should have so instructed the jury. 1 R C. L. 487; 204 Ill. 208; 68 N.E. 505; 98 A. S. R. 206; 66 L R. A. 304; 216 Mo. 378; 115 S.W. 998; 20 L. R. A. (N. S.) 1142.
J. S. Utley, Attorney General; Elbert Godwin and W. T. Hammock, Assistants, for appellee.
Where there is a conflict between the record entry and the bill of exceptions, the record entry must prevail. 1 Ark. 349; 9 Ark. 133; 17 Ark. 332; 24 Ark. 499; 83 Ark. 517; 108 Ark. 191.
In summoning jurors, the sheriff is not restricted to the bystanders--those present in the court room-- but may summon any elector from the body of the county. 29 Ark. 22; 35 Ark. 639.
There was no error in permitting the clothing worn by deceased at the time she was killed, to be exhibited to the jury. Ency. of Ev. vol. 6, pp. 607-608. It must be properly identified. 128 Ala. 17; 29 So. 569.
The hypothetical question propounded assumed certain facts which were not in proof, and the court was right in refusing it. It did not present the whole case. Ency. of Ev. vol. 5, p. 626; 71 Mich. 158; 39 N.W. 28.
Appellant was tried under an indictment which charged him with the crime of murder in the first degree, alleged to have been committed by shooting Bessie Pate, his wife. He was convicted of murder in the second degree and given a sentence of twenty-one years in the penitentiary, and has appealed.
The first assignment of error is that the court erred in refusing to quash a special venire ordered at his trial. It appears that the jury was divided into two panels, and when appellant's case was called one of these panels was exhausted without making the jury. The other panel was at the time engaged in considering a case which had been submitted to it. Appellant demanded that his trial be stayed until this second panel had been discharged and was available in his case. The court overruled this motion and ordered the sheriff to summon as veniremen twice the number then needed to complete the jury.
No error was committed in this ruling. This exact question was raised in the case of Johnson v. State, 97 Ark. 131, 133 S.W. 596, and it was there held that the trial court committed no error in refusing to delay the trial until the members of the regular panel engaged in the trial of another case were available. If it were otherwise, intolerable delays would result in the administration of justice. Within the meaning of § 3145, C. & M. Digest, the panel was exhausted when all the jurors available for duty had been called and examined without completing the jury.
It is next insisted that error was committed by the court in failing and refusing to direct the sheriff to summon as bystanders persons then present in the court room as spectators, it being insisted that § 3145, C. & M. Digest, requires that such persons be first called. This section does require the sheriff to summon bystanders, and further provides that, if the jury shall not be completed out of the jurors so summoned, bystanders shall again be summoned to twice the number necessary to complete the jury, and that this mode shall be continued until the jury is completed. But we think counsel give the word "bystanders" a meaning too restricted. If they are correct in the interpretation given the statute, the administration of the law might be hampered, if not defeated, by the exhaustion of the spectators attending court without completing the jury.
The statute cannot be given any such narrow meaning. By bystanders is meant electors possessing the qualifications of jurors, and in their selection the body of the county is open and available to the sheriff. Rogers v. State, 133 Ark. 85, 201 S.W. 845; Gay Oil Co. v. Akins, 100 Ark. 552, 140 S.W. 739.
The court may, for specific cause, designate some person other than the sheriff to summon jurors. Section 3147, C. & M. Digest. But, unless this showing is made, the presumption must be indulged that the sheriff has no purpose in summoning special jurors except to aid in administering the law. Of course, the jurors thus summoned are subject to examination by both the State and the defendant, and the qualification of each is passed upon by the court.
We have many times held that one charged with the commission of crime has no right to demand the service of any particular person as a juror. McCain v. State, 132 Ark. 497, 201 S.W. 840.
We think it certain there was no legislative intent to restrict the sheriff, in summoning special jurors, to persons who were already on hand.
Objection was made, and an exception saved, to the action of the court in permitting the introduction in evidence of the garments worn by the deceased at the time she was shot, it being admitted that the garments had been washed since deceased had worn them. No error was committed in this respect. Washing did not change the character of the garments, and they were admissible to show the location of the wounds.
Error is assigned in the refusal of the court to give instructions numbered 9 and 10 requested by appellant. Instruction numbered 9 declared the law to be that, if appellant went to deceased to effect a reconciliation, and, while thus engaged, was aroused to great passion, either of anger, fear or terror, and that such passion was caused by a provocation apparently sufficient to make it irresistible, appellant could not be convicted of any higher degree of homicide than manslaughter. No error was committed in refusing this instruction, as there was no testimony upon which to base it. According to appellant's version of the shooting, he accidentally shot his wife while temporarily insane, and it was not error to refuse to further complicate the issues by submitting still another defense which there was no substantial evidence to support. Instruction numbered 10 was to the same effect, substantially, and for the reasons just stated it was not error to refuse it. It may be said, in this connection, that the instructions given fairly and fully submitted the issues raised by the testimony.
After killing his wife, appellant twice shot himself, and the physician who attended him administered certain opiates. There was testimony that appellant made statements about the shooting both before and after the administration of the opiates, and that the statements were substantially identical. An instruction numbered 15, requested by appellant, dealt with the weight to be given the statements of appellant thus made, and an exception was saved to the action of the court in refusing to give the instruction. This instruction was properly refused, as it was a charge upon the weight of testimony. Moreover, the testimony on the part of the State tended to show that the damaging statements in question were made by appellant both before and after the administration of the opiates; yet the instruction as requested would have required the exclusion of the statements from the consideration of the jury if the finding was made that appellant was under the influence of opiates when any of them were made, if some of the statements were made after the administration of the drugs, although they were identical with those made before.
In the concluding argument, one of appellant's counsel stated that, in addition to what the court had said in regard to the existence of a reasonable doubt (and the court had given the usual instructions on that subject), "that it was also the law that, if there was any reasonable view of the evidence that could be adopted, it is the duty of the jury to adopt that view and acquit the defendant."
The court refused to so charge the jury and stated that such was not the law, and an exception was saved to that action.
No error was committed in this ruling. It is not a part of the jury's duty to...
To continue reading
Request your trial
-
Collins v. State
...... 462, 233 S.W. 673. . . . [ 4 ] McNutt was associated with the defendant. and at the time of this trial was under indictment, charged. with embezzlements similar to those for which Collins was. being tried. . . . [ 5 ] Vaughan v. State , 58 Ark. 353, 24. S.W. 885; Pate......
-
Collins v. State, 4177.
...similar to those for which Collins was being tried, and was convicted. 5. Vaughan v. State, 58 Ark. 353, 24 S. W. 885; Pate v. State, 152 Ark. 553, 239 S.W. 27. 6. See Storms v. State, 81 Ark. 25, 98 S.W. 678; Underhill on Criminal Evidence, 4th Ed., § 492, Page 1009; Bledsoe v. State, 130 ......
-
Bennett v. State
...the instance of the accused, to summon as bystanders persons present in the courtroom while the trial jury is being formed. Pate v. State, 152 Ark. 553, 239 S. W. 27. In the last case, construing the statute (section 3145) which requires the court to order the sheriff to summon bystanders t......
-
Shank v. State
...... introduced and certain competent testimony wrongfully. excluded. . . The. jury returned a verdict of guilty of murder in the first. degree, and from the judgment thereon this appeal comes. . . . Judgment affirmed. . . W. T. Pate, Jr., Jehu J. Crow, Ben. M. McCray and N. A. McDaniel,. for appellant. . . Hal L. Norwood, Attorney General, and Robert F. Smith, Assistant,. for appellee. . . . OPINION. [72 S.W.2d 522] . . [189. Ark. 247] KIRBY, J., (after ......