Rhea v. State

• Decision Date: 29 April 1912
• Citation: 147 S.W. 463,104 Ark. 162
• Parties: RHEA v. STATE
• Court: Arkansas Supreme Court

147 S.W. 463

104 Ark. 162

RHEA v. STATE

Supreme Court of Arkansas

April 29, 1912

Appeal from Jefferson Circuit Court; Antonio B. Grace, Judge affirmed.

Judgment affirmed.

Taylor & Jones, X. O. Pindall and G. W. Murphy, for appellant.

1. The dying declarations of Archard, the testimony of the physicians and the evidence of Bridwell and Smith concerning the dying declarations were improperly admitted as evidence. None of them stand the legal test. The court did not find that the declarations or answers were made under a sense of impending death. 2 Wigmore on Ev. § 25; 9 Kan. 257 282-5; 4 C. & P. 544; 2 Lewis, Cr. Cas. 148; Underhill on Cr Ev. 131, § 103.

2. It was error to allow West to give his opinion as to the distinction between a cultured voice and that of a plantation negro. 1 Wharton on Ev. § 43; 94 U.S. 469; 66 Am. Dec. 228; 1 Greenleaf on Ev. § 440.

3. It was error to admit testimony as to the relations of defendant with Mattie Stevenson, and in allowing the prosecuting attorney to question defendant as to same. 70 Ark. 610; 53 Id. 387. The witness Floyd Massey should have been permitted to answer as to defendant's innocent conduct and want of knowledge of the tragedy. 1 Wigmore on Ev. § 293.

4. The belief in the certainty of death, not of mere possibility or probability, must exist to make competent statements as to declarations made just prior to death. 2 Wigmore on Ev. § 1440.

5. There was error in the court's charge: (1) In refusing instructions 1-4 as to unblemished character. Underhill on Ev. § 80, pp. 100-101; 4 Park Cr. Cases (N. Y.), 396; 107 Ala. 133; 66 Wis. 355; 133 N.Y. 609; 49 Cal. 485; 43 N.Y. 6, 8, 9. (2) In refusing 3, 4 and 5, as to imminent death. 2 Wigmore on Ev. § 1448; 1 Gr. on Ev. §§ 158, 159, 160; Underhill on Cr. Ev. § 108; 58 Ark. 77; 52 Id. 345; 63 Id. 382; 70 Id. 156. As to the defense of alibi and instruction 5 see 69 Ark. 180; 59 Id. 279. (3) Instruction No. 7 violated the law as to accomplices. 55 Ark. 395; 51 Id. 173; 37 Id. 274; Mansf. Dig., § 1505, 37 Id. 274; Bish. St. Cr. § 142; 29 Me. 84; 39 Cal. 75; 40 Id. 129; 1 Bishop, Cr. Law § 803; 7 Car. & P. 801. The error was not cured by No. 9. The instructions were conflicting and misleading. 76 Ark. 225. (4) Nos. 15 and 17 misled the jury into the belief that, though perjured, the State's witnesses might stand before them worthy of belief. The closing sentence does not cure the error.

6. The misconduct of the jury was prejudicial; and so was that of the prosecuting attorney. 34 Ark. 632.

7. The testimony as a whole discloses no substantial evidence of guilt. 34 Ark. 632.

Hal. L. Norwood, Attorney General, William H. Rector, Assistant, T. Havis Nixon, S. J. Hunt and W. B. Sorrells, for appellee.

1. The dying declarations were admissible. 38 Ark. 495; 58 Id. 47; 88 Id. 579; 68 Id. 355; 81 Id. 417; 49 Ore. 46; 103 Ala. 12; 104 Ia. 730; 17 Ala. 618; 115 N.C. 321; 42 Fla. 528; Underhill, Cr. Ev. § 104; 4 Enc. of Ev. 969-971; 106 Ky. 212.

2. The quality of the human voice has been recognized as a means of identification of persons, and is not considered expert testimony. 20 S.W. 753; 34 Id. 622; Ib. 626; 98 Id. 854.

3. Testimony as to illicit relations between defendant and a negro woman was properly admitted, as tending to impeach him. 58 Ark. 478; 46 Id. 141; 56 Id. 7; 53 Id. 390.

4. It was incompetent for Massey to testify as to his conclusions as to defendant's actions and conduct. Wigmore on Ev. p. 291.

5. It was not error to allow the witness Harrison to prove a conviction of the illicit sale of liquors. It was competent as affecting the credibility of the witness. 53 Ark. 390.

6. There is no error in the court's charge. 66 Wis. 355; 133 N.Y. 609; 43 N.Y. 6; 175 Mo. 207; 184 Mo. 276; 193 Ill. 236; 136 Ind. 662; Sackett on Inst. (Brackett) § 2376; 95 Ark. 107; 73 Id. 315.

7. The law of dying declarations is well settled in this State. Instruction No. 2 properly refused; the court had no right to point out what inferences should be drawn from any particular facts, or impress the jury with the court's opinion as to their probative force. 55 Ark. 247-8. Instructions 3, 4, 5 are not supported by the authorities. 58 Ark. 47. The admissibility of a dying declaration is determined by the court, not by the jury. 38 Ark. 495; 81 Id. 47; 68 Id. 355; 81 Id. 417; 88 Id. 579;

8. The charge as to accessories follows the statutes and decisions of this State. Kirby's Dig., § 1560-1563; 37 Ark. 274.

9. Giving an erroneous instruction is not ground for reversal unless prejudicial. 59 Ark. 431.

10. Instructions 15 and 17 are sustained by 77 Ark. 436; 55 Id. 242; 68 Id. 336; 95 Id. 169; 82 Id. 540; 91 Id. 562; 98 Id. 318.

11. There was no misconduct of the jury. 44 Ark. 118; 57 Id. 8; 29 Id. 254; 95 Id. 428;

FRAUENTHAL, J. HART, J., dissents.

OPINION

FRAUENTHAL, J.

At the August term, 1911, of the Desha Circuit Court, the defendant, W. S. Rhea, was indicted upon the charge of murder in the first degree. It was alleged in the indictment that on May 13, 1911, one Jim Hubbard did kill and murder Vital Archard by shooting him with a gun, and that the defendant was present and did aid, abet and encourage said Hubbard in the commission of said crime. The trial resulted in a verdict finding the defendant guilty of murder in the first degree. He filed motions in arrest of judgment and for a new trial, and, both being overruled, he has prosecuted an appeal to this court.

The indictment was returned at a regular term of the Desha Circuit Court begun on the fourth Monday of August, 1911. It is contended that the term thus held by the Desha Circuit Court was at a time not authorized by law, and, for this reason, the indictment then returned and all proceedings had thereunder are illegal and void. The Legislature of 1911 enacted a statute, which was approved on May 26, 1911 changing the time of holding the terms of the circuit courts in the Eleventh Judicial Circuit and fixing the time of holding said courts in Desha County on the third Monday in January and the fourth Monday of August of each year. (Acts 1911, p. 283.) The statute concludes with the provision that "this act shall take effect and be in force ninety days from and after its passage." It is contended that, under the constitutional amendment commonly known as the Initiative and Referendum, the passage of the above statute did not occur until ninety days after the adjournment of the General Assembly, and that it did not become effective until ninety days after that time had passed, in other words, not earlier than 180 days after the adjournment of the General Assembly, which was later than August, 1911, at which time the term of court was held wherein this indictment was returned. This contention is the same as that which was made in the case of Jackson v. State, 101 Ark. 473, 142 S.W. 1153. The same statute was involved in that case, and it was determined that it was in force in August, 1911, when the term of the Desha Circuit Court was held, at which Jackson was tried and convicted of a felony. In that case this court said: "We are urged to consider the section of the statute postponing its operation ninety days after passage to mean ninety days after the end of the period allowed for reference to the people. We are unable to reach the conclusion that that is the correct construction, for it would do violence to the plain language of the statute which declares that it shall take effect and be in force ninety days after its passage. The act was passed, within the meaning of the language used, when it was approved, and the ninety days' postponement ran from that date. The Legislature had the power to lengthen, but not to shorten, the time for putting the statute into operation, and it was the manifest intention of the lawmakers to postpone the operation of the statute that length of time regardless of any further postponement of its operation which might result from the length of time given for reference to the people after the adjournment of the session." The decision in the case of the Arkansas Tax Commission v. Moore, 103 Ark. 48, 145 S.W. 199, does not, we think, conflict with the ruling made in the Jackson case. In the Tax Commission case, this court referred to the Jackson case, and there said: "The court there, in ascertaining the legislative intent, concluded that it was meant to postpone the operation of the statute for a period of ninety days after its approval by the Governor, * * * without regard to the reference period or whether or not the referendum provision was in force. That construction of the statute which we then had under consideration had little, if any, bearing on the question now presented. We do not find the construction adopted in that case to be in conflict with the views now expressed." According to the construction placed on this statute by this court in the Jackson case, the Legislature determined that the act should be in force ninety days after its approval by the Governor. No referendum of this act was demanded, and, the August term of the Desha Circuit Court having begun more than ninety days after the adjournment of the Legislature and the approval of the act by the Governor, it was then in full force and effect. That was the decision of this court, then made, and must be followed unless overruled. It is essential that there should be stability and uniformity in the construction and interpretation of the law. The conduct of the affairs of State, the rights and interests of individuals, the uniformity of the enforcement of the law and the proper administration of justice require in these matters that there should be settled rules. It becomes necessary, as a general rule and as a matter of public policy, to uphold the principles...