Pearson v. State

• Decision Date: 07 June 1915
• Docket Number: 34
• Citation: 178 S.W. 914,119 Ark. 152
• Parties: PEARSON v. STATE
• Court: Arkansas Supreme Court

178 S.W. 914

119 Ark. 152

PEARSON v. STATE

No. 34

Supreme Court of Arkansas

June 7, 1915

Appeal from Woodruff Circuit Court, Northern District; J. F Summers, Special Judge; reversed.

Judgment reversed and cause remanded.

E. M Carl Lee and F. E. Wilson, for appellant.

Under the act of May 31, 1909, this court will consider all errors prejudicial whether exceptions were saved or not. A continuance should have been granted. Defendant was diligent. The refusal was a flagrant abuse of the discretion of the court. 60 Ark. 564; 71 Id. 182; 100 Id 301; 73 Id. 180. Two days is not a reasonable time. 12 Cyc. 503, 535; 95 Ark. 273; 50 Id. 49.

2. The court erred in admitting the evidence of J. B. Kittrell. It was hearsay.

3. The court erred in receiving and answering the note from the jury. The defendant was absent. No prejudice need be shown. Kirby's Dig., § 2339; 24 Ark. 620; 108 Id. 192; 44 Id. 331. All communications between the judge and jury after the jury has retired, etc., must be in open court, the accused being present. 12 Cyc. 681; 8 Ind. 439; 23 Ill. 283.

Wm. L. Moose, Attorney General, and Jno. P. Streepey, Assistant, for appellee.

1. The continuance was properly refused. Matters of continuance are peculiarly within the discretion of the court. 109 Ark. 410.

2. Kittrel's testimony was admissible as showing a confession of guilt.

3. There was no error in the court receiving the note from the jury. 114 Ark. 452.

OPINION

WOOD, J.

Appellant was convicted of the crime of murder in the first degree. The indictment in due form charged the appellant of the crime of murder in the first degree in the killing of one John Harris.

I. Appellant moved the court to continue the case on account of the absence of Pomp Pearson. Pomp Pearson was the father of the appellant. His testimony as set forth in the motion for a continuance would tend to show an alibi. Treating the testimony, therefore, as material, did the court err in overruling appellant's motion to continue the case to allow him to procure the testimony of this witness, which he set up could be done at the succeeding term of the court? On the motion to continue the court heard the testimony of certain witnesses who were deputized to serve the subpoena on the witness, Pomp Pearson. One witness testified that he went to Pearson's house and was informed by Pearson's wife that he was not at home but would probably return that evening. The officer did not go back to Pearson's home that evening for the purpose of serving the subpoena.

One witness testified that Pearson had forty acres of land in his farm, and that if the case was continued until the next term he supposed he could be had. The sheriff testified that the officer whom he deputized to serve the subpoena on Pomp Pearson reported that he could not find him. He then sent his regular deputy to Pomp's home and he also reported that he was not there and had not been seen at home since Tuesday before. One Ira Stewart testified that he was told that Pearson was "afraid to come on account of his connection with stealing cotton." Another witness testified that Pearson, in company with Scipio Jones, a lawyer of Little Rock, called at his office on Friday afternoon before the trial, which was had the following Wednesday, and that the purpose of their visit was to employ him to assist in the defense of the appellant, but that he informed them that he had been employed by the prosecution.

The court overruled the motion for a continuance, and in so doing did not abuse its discretion. The absent witness being the father of appellant, if appellant could have proved by him the facts as set up in his motion for a continuance, it seems but reasonable that he would have been present. If, as indicated by witness Stewart, Pomp Pearson had absented himself from the court and was concealing himself because of fear of prosecution, the same fear would likely cause him to conceal himself at the subsequent term as well, and there was no reasonable assurance, therefore, that he could be had at the following term of the court, and nothing was set up in the motion and nothing in the evidence indicating that there was a greater probability of securing the presence of the absent witness at the following term.

The presence of appellant's father, Pomp Pearson, in Augusta the week before, showing that he was interested in his son's defense, warranted the court in finding that he was in the community, but for some reason, unexplained, was concealing himself from the court's process. It was within the discretion of the court, under these circumstances, to refuse to continue the case. Appellant did not show that he would be or could be in any better situation to procure the testimony of Pomp Pearson at the succeeding term. It was incumbent upon appellant, under the circumstances, to explain the absence of the father and to set up and show some reason for believing that if the case was continued his presence could be had at the subsequent term. The mere statement of these things in the motion was not sufficient. Sullivan v. State, 109 Ark. 407, p. 410, 160 S.W. 239.

Appellant also asked that the cause be continued on account of the absence of a witness by the name of Ira Johnson, but appellant fails to show that there was any person living in the neighborhood by the name of Ira Johnson, while there was affirmative testimony on behalf of the State to the effect that there was no person in the county by the name of Ira Johnson. The court, under this showing, correctly held that the motion to continue was not sufficient.

II. J. B. Kittrell, the special officer who brought appellant from Oklahoma, where he had been arrested after the killing occurred, was talking with the appellant on the train and appellant told the witness that he was not the man who did the shooting. Appellant told witness that on the occasion when Harris was killed he (appellant) was in the wagon with the negro who killed Harris, and that when he heard some one coming he (appellant) jumped out of the wagon and ran off in the field. He told the witness that after the shooting the negro who did the shooting caught up with him (appellant) and this negro was badly shot himself and gave out and that appellant left him and went on. Appellant told witness then about his leaving the country and the places where he had been.

The testimony of the witness Kittrell was competent as evidence against appellant. It tended to show a confession on the part of appellant to the effect that he was present when Harris was killed. He denied that he was the party who fired the fatal shot, and stated that another negro did the shooting. The credibility of his testimony was for the jury. There is nothing in the record to show why these statements were made to the officer, and it does not appear that they were elicited under the influence of any threats of punishment or promises of immunity from punishment held out by the officer.

The court admitted the testimony, and must have found, therefore, that the statements were freely and voluntarily made; for otherwise these statements of appellant, in the nature of a confession, would have been incompetent. The appellant must show error, as every presumption is indulged in favor of the ruling of the trial court; and, in the absence of testimony tending to show that these statements were not freely and voluntarily made, we must hold that the ruling of the court was correct in admitting them. There is nothing in the record to show that the ruling of the court was not in accord with the law as announced by this court concerning the admissibility of confessions in many cases. Some of the more recent ones are Dewein v. State, 114 Ark. 472, 170 S.W. 582; Greenwood v. State, 107 Ark. 568, 156 S.W. 427.

III. There are certain affidavits in the transcript to the effect that after the jury had retired to consider their verdict, and after they had been out for several hours, one of them called the sheriff to the door of the room in which they were deliberating and handed him a note addressed to the trial judge. The note was substantially as follows: "If the jury should find the defendant guilty as charged in the indictment with a recommendation for leniency, has your honor the authority and will you assess his punishment at twenty-one years in the State penitentiary or for life?" The affidavits were to the effect that the court answered the above note as follows: "No." That when this communication was had between the court and the jury neither the defendant nor his attorneys were present and they knew nothing about it.

There is no reference in the bill of exceptions to this proceeding and no reference therein to these affidavits having been presented to the trial judge and of his refusal to consider the same; and nothing in the bill of exceptions to indicate that such proceeding was had or to identify the affidavits by which it is sought to prove that there was such a proceeding.

Counsel for appellant contend that they preserved their exceptions to the above proceedings under sections 6225 and 6226 of Kirby's Digest, which provide:

"Sec. 6225. Where the decision is not entered on the record, or the grounds of objection do not sufficiently appear in the entry, the party excepting must reduce his exception to writing and present it to the judge for his allowance and signature. If true, it shall be the duty of the judge to allow and sign it; whereupon it shall be filed with the pleadings as part of the record, but not spread at large on the order book. If the writing is not true, the judge shall correct it, or suggest the correction to be made, and, when corrected, sign it.

"Sec 6226. If the party excepting is not satisfied with the...