Penton v. State, 4040.

• Citation: 109 S.W.2d 131
• Decision Date: 27 September 1937
• Docket Number: No. 4040.,4040.
• Parties: PENTON v. STATE.
• Court: Supreme Court of Arkansas

Page 131

109 S.W.2d 131

PENTON v. STATE.

No. 4040.

Supreme Court of Arkansas.

September 27, 1937.

Rehearing Denied October 25, 1937.

Appeal from Circuit Court, Miller County; Dexter Bush, Judge.

Foster Penton was convicted of murder in the first degree, and he appeals.

Affirmed.

George F. Edwards, Jr., and J. D. Cook, Jr., both of Texarkana, for appellant.

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

GRIFFIN SMITH, Chief Justice.

The prosecuting attorney filed information in Miller circuit court, alleging that Foster Penton and Price Stephens "wilfully, feloniously and with malice aforethought, and after premeditation and with deliberation, did kill and murder Charley Block by striking and cutting the said Charley Block with an axe."

Appellant, on March 8, entered a plea of not guilty. He was granted a severance from Stephens. The jury returned a verdict of murder in the first degree and the court assessed the death penalty. On March 12 Stephens entered a plea of guilty to the crime of murder, and his punishment was fixed at life imprisonment in the penitentiary.

As grounds for reversal as to Penton it is urged (1) that improper remarks were made by the trial judge and prosecuting attorney; (2) that the court erred in refusing to instruct the jury that the defendant could not be convicted upon the uncorroborated testimony of witnesses whom it was claimed were accomplices; (3) that the court refused to permit the defendant to exercise a challenge for cause upon a showing that one of the jurors had served upon a regular jury within one year; (4) that the court erred in admitting testimony by which the State sought to show that appellant and Stephens killed Block while engaged in the commission of robbery, whereas the information charged malice and premeditation; (5) that it was error to admit testimony of the sheriff and a deputy who told of appellant's confession; (6) that the court erred in commenting upon the weight of testimony; and (7) that Constitutional Amendment No. 22, authorizing prosecution by information filed by the prosecuting attorney in lieu of indictment by a grand jury, is invalid. Other errors are alleged, but they are not of sufficient importance to require separate discussions.

1. This assignment is predicated upon a question directed by the prosecuting attorney, who asked a witness: "Did he (appellant) work for you at the time this murder happened?" In response to an objection the court remarked: "That's what it is." Attorneys for the defendant moved that a mistrial be declared, and were overruled. Thereupon the court, addressing the jury, said: "Well, gentlemen, it is a question for the jury as to whether or not it is murder."

Appellant's defense was not that he was justified in killing Block, but that he had no connection with the transaction, and was innocent. Therefore, use of the word "murder" by the trial judge could not prejudice appellant's cause. Vasser v. State, 75 Ark. 373, 87 S.W. 635.

2. A complete answer to this objection is that neither of the witnesses who are alleged to have been accomplices testified to the guilt of appellant. The deceased's body was found in the river near Garland City. Tony Price testified: "I work for the Gas Company, and was going to look after the Company's motor boats and skiffs. Upon reaching Block's house I said something, and there was no reply. Upon looking in the door I saw blood. I followed a trail of blood to the river bank and found a sweater I thought I recognized, but did not bother it. I bailed out the boats and then picked up Bill Barnum and told him what I had found and we went back and fished Charlie out of the river. This happened about the middle of December. When we got the body out of the river it looked badly cut and badly battered with some instrument. I could not say what time of day it was, but I go to work between 7:30 and 8:30. I do not remember whether I saw Charlie Block the day before, or not — I just don't remember."

It is contended that because the witness, after noticing the sweater and after having seen blood in the cabin and along the trail, went on bailing out his boat, and made no further investigation until he met Bill Barnum, an inference of guilt arises, and Price should be classed as an accomplice. But, even if it should be admitted that the circumstances were sufficient to create a suspicion, it must be remembered that Price did not give any testimony connecting appellant with the crime, nor did he refer to appellant in any manner.

Price Stephens testified that he lived in Garland City and worked for Jesse Smith. At this point appellant's attorneys objected that the witness had been jointly accused with appellant, and that any testimony he gave would be self-incriminating. The court remarked: "He has not been asked any incriminating questions yet." Stephens was then asked whether he and appellant stood jointly charged with the robbery of Charlie Block, and he replied that he had entered a plea of guilty to that charge. This testimony was also objected to. When asked whether he was at Charlie Block's house "the afternoon of the night that you and Foster (appellant) robbed him," the objections were renewed. The court then asked the witness if he objected to giving testimony about it," and the answer was, "Yes, I mind." Stephens was excused.

It is contended that the testimony given by Stephens conveyed to the jury information that appellant and witness had been jointly held for the robbery of Block; that they had entered pleas of guilty; and that such testimony probably formed a basis for the final verdict.

It will be noted that Stephens did not testify against appellant other than to say that they had been jointly charged with having robbed Block. He did not say that appellant participated in the robbery, or that appellant was present when it was committed, nor did he in any manner connect appellant with the transaction. In view of other testimony affirmatively fixing appellant's guilt, it will not be presumed that the jury was influenced by the references to robbery, and appellant did not suffer prejudice by reason of the testimony. It follows that the court did not err in refusing the requested instruction.

3. Section 36 of Initiated Act No. 3, adopted Nov. 3, 1936, repeals Act No. 135 of 1931 (page 363), which provided that "no citizen shall be eligible to serve on either Grand or Petit jury oftener than one regular term of the Circuit Court, every two years." Section 1. The trial court was therefore correct in refusing to allow appellant's requested peremptory challenge.

4, 5. No testimony, other than the confession, was admitted to show that Block was killed by appellant with robbery as the objective, but it is insisted that the confession should have been excluded as having been induced through promise of reward. Sheriff Tom Sewell testified as follows:

"I went with Mr. Greer, Mr. Adcock and Bill Smith down to investigate the killing of Charlie Block. We went to Charlie Block's house; found it open and a big pool of blood on the floor; found where the blood left the house and went off down the bank of the river; followed it about 600 yards to where the body was thrown into the river. Myself, with my deputies, examined the trail from the house to the point where the body was found, and beside the trail of blood discovered the tracks of two men. One of the tracks had three bars across the bottom of the shoes, and that track made a plain impression in the sand.

"I arrested appellant down there—carried him down the river to where those tracks were in the sand bar where they drug this body, and made him make a track there beside it. The shoes that he had on made, I think, the same track and the same size. I cut a stick and measured the track and the shoes he had on.

"I asked appellant what he thought about the tracks and if he didn't think the tracks looked very much like his, and he said yes, but he didn't make the tracks. So we went on down a piece further and coming back I showed him another track and he said that that was his track but he couldn't tell exactly when the track was made. He denied at that time knowing anything about the murder of Charlie Block but said he had been at Charlie Block's house that afternoon. I asked him if the clothes he had on were the same ones he had on the evening he was at Charlie Block's house, and he said they were. I was present when a certain pair of pants was exhibited to appellant. He admitted that they were the pants he had on the afternoon before, and tried to explain how some blood was on them. There was blood on them. I don't know of my own knowledge where the pants come from. He said he had a disease and that it come on them from that. He, with some other suspects, was brought by myself and deputies to the Miller county jail. Appellant made a statement to me since he has been in custody.

"We had been talking to appellant a couple of days at different times about this thing, and he contended all the time that he knew nothing about it. Will Greer and myself rode up to the jail one day and appellant called out of the window for Mr. Greer to come up there; that he wanted to talk to him. Greer went up and got him and brought him down and he told how he killed Charlie Block and who was with him. I didn't call him down there. He said Tony Price was the man that killed Charlie Block. I told him that we were going to go down and get Tony Price and that he had better not lie because that it would just get him in more trouble. He called us back and said he might have lied on Tony Price. Then he told me that he and Price Stephens killed Charlie Block, drug him down there and put him in the water. He said he had been there shooting craps that afternoon before Block was killed that night, and he knew Block had some money; that they fixed it up between themselves to go there and rob Charlie Block and get his money. ...