Penton v. State, 4040.
Decision Date | 27 September 1937 |
Docket Number | No. 4040.,4040. |
Citation | 109 S.W.2d 131 |
Parties | PENTON v. STATE. |
Court | Arkansas Supreme Court |
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.
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:
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:
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Washington v. State
... ... Penton v. State, 194 Ark. 503, 109 S.W.2d ... 131 and Smith et al. v. State, 194 Ark ... 1041, 110 S.W.2d 24. The United States Supreme Court has ... ...
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Brown v. State
... ... 991] ... Higdon v. State, ante, p. 881, 213 ... S.W.2d 621; Washington v. State, ... ante, p. 218, 210 S.W.2d 307; Penton v ... State, 194 Ark. 503, 109 S.W.2d 131; and Smith, ... et al. v. State, 194 Ark. 1041, 110 S.W.2d 24 ... The ... ...
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Cascio v. State
... ... constitution of the United States. We considered this ... question in the case of Penton v. State, ... 194 Ark. 503, 109 S.W.2d 131, and there upheld the validity ... of this amendment. Other cases in which the same ruling was ... made ... ...
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