Ruloff and Berger v. State

• Decision Date: 08 March 1920
• Docket Number: 224,244
• Citation: 219 S.W. 781,142 Ark. 477
• Parties: RULOFF AND BERGER v. STATE
• Court: Arkansas Supreme Court

219 S.W. 781

142 Ark. 477

RULOFF AND BERGER v. STATE

No. 224, 244

Supreme Court of Arkansas

March 8, 1920

Appeal from Garland Circuit Court; Scott Wood, Judge; affirmed.

Affirmed.

A. J Murphy and Murphy & McHaney, for appellants.

1. The court erred in holding Jim Tisdale a competent juror and in changing its ruling and excusing him for cause for the purpose of restoring one challenge to appellants. Kirby's Digest, § 2357.

2. It was error to hold that W. K. Woodcock was a competent juror. 135 Ark. 520.

3. The court erred in permitting the State to read in evidence the statements purporting to be the testimony of Patrick Stearns Kramer and Sam Dillard et al., taken before the municipal judge, Ledgerwood, the record and evidence showing that defendants were not asked if they had or desired counsel. Kirby's Digest, § 2137; 105 Cal. 641; 39 P. 29; 93 Cal. 277; 88 Id. 84.

4. The court erred in overruling defendants' objection to the question by the prosecuting attorney asked Belding, and in permitting the prosecuting attorney's closing argument to go to the jury, and other statements in his argument.

5. The court erred in giving, refusing and modifying instructions.

John D Arbuckle, Attorney General, and Robert C. Knox, Assistant for appellee.

Section 2137, Kirby's Digest, is not mandatory but directory merely. 98 Ark. 505; 34 Id. 492; 52 Id. 275; 21 Id. 329; 26 Id. 328. 83 Ark. 277 covers appellants' contention. See also 95 Ark. 172. Where a witness is dead or beyond the jurisdiction of the court, what such witness testified to on a former occasion is competent. 58 Ark. 353; 29 Id. 17; 33 Id. 539; 40 Id. 454; 47 Id. 180; 60 Id. 400; 68 Id. 441; 90 Id. 515; Kirby's Digest, § 2148; 76 Ark. 515; 83 Id. 272.

Matters of argument of counsel are within the discretion of the court and here no abuse is shown. 23 Ark. 32; 193 S.W. 89; 74 Id. 256; 112 Id. 452; 119 Id. 101.

There are no reversible errors in the instructions and the evidence sustains the verdict.

MCCULLOCH, C. J. WOOD, J., dissenting.

OPINION

MCCULLOCH, C. J.

This appeal is from a judgment convicting the appellants of the crime of robbery.

In the course of the selection of the jury, three of the veniremen answered in substance that they had heard and read a great deal about the case and had formed an opinion concerning its merits which would require evidence to remove. It was not shown that the opinion was formed from talking with witnesses or any one who knew or professed to know the facts. The jurors in answer to the questions stated that notwithstanding their preconceived opinion they believed they could try the case according to the evidence and the instructions of the court.

The court first refused to excuse any of these jurors for cause, but afterward as to one of them changed its ruling and excused him for cause. At the time of this ruling appellants had exhausted their challenges, but the ruling had the effect to give to appellants the right to exercise another peremptory challenge.

After a certain juror had been accepted by the State and the appellants, and after a recess of the court, the prosecuting attorney asked permission to exercise peremptory challenge on a juror whom he had already accepted, which the court permitted over the objection of appellants.

After this ruling of the court one juror remained to be selected. The next venireman called, over the objection of appellants, was held to be qualified and the appellants exhausted their last peremptory challenge upon him. The next juror, over the objection of appellants, was held to be qualified and was selected, which completed the panel.

There was no reversible error in the rulings of the court. The answers of the jurors show that their opinions were based upon rumor. At least the appellants did not show that they had talked with witnesses or any one who assumed to know the facts. The preconceived opinion, which, prima facie, rendered the jurors incompetent was overcome by the further examination in which the jurors disclosed that they would be governed in rendering their verdict by the evidence and the instructions of the court.

The record does not show that at the time the court permitted the prosecuting attorney to exercise a peremptory challenge on a juror who had been previously accepted that the appellants' right to peremptory challenge had then been exhausted. The panel had not been completed, and the appellants at that time still had the right to one peremptory challenge.

The rulings of the court in passing upon the qualifications of these jurors, and thus completing the panel by which the appellants were tried, were in conformity with previous decisions of this court. Sneed v. State, 47 Ark. 180, 1 S.W. 68; Williams v. State, 63 Ark. 527, 39 S.W. 709; Sullins v. State, 79 Ark. 127, 95 S.W. 159; Daughtry v. State, 80 Ark. 13, 96 S.W. 748; Decker v. State, 85 Ark. 64, 107 S.W. 182; McGough v. State, 113 Ark. 301, 167 S.W. 857; see also § 2357, Kirby's Digest.

The only limitations found in the statute (Kirby's Digest, § 2357) with respect to the time for the exercise of the right of peremptory challenge is that it must be before the juror "is sworn in chief," but another limitation necessarily implied is that it should not be exercised at such time as to prejudice the rights of the other party in the exercise of challenges. Sneed v. State, supra; Williams v. State, supra; McGough v. State, supra.

When the prosecuting attorney challenged the previously accepted juror, appellants had, as before stated, one more peremptory challenge left to them. It does not appear from the record before us at what stage of the formation of the jury this particular venireman was originally accepted, nor how many challenges appellants had left at that time. It does not show that appellants rights with respect to the exercise of their challenges were in any wise altered by the challenge made by the State. All that the record shows in this matter is that when the State was allowed to challenge this juror, appellants had one challenge left, and this is sufficient to show that no prejudice resulted. McGough v. State, supra.

The appellants next contend that the court erred in permitting the State to read in evidence to the jury statements purporting to be the testimony of Patrick Stearns, W. Kramer, Sam Dillard and J. F. Potts, taken before the municipal judge, Ledgerwood, who presided at the examining court. The appellants urge that the court did not comply with that part of section 2137 of Kirby's Digest, which provides as follows: "The magistrate, before commencing the examination, shall state the charge and inquire of the defendant whether he desires the aid of counsel and shall allow a reasonable opportunity for procuring it."

The judge who presided at the preliminary examination testified on this issue as follows: "They (appellants) were not represented by counsel. I don't remember that I said anything to them before I began the examination. I asked them if they were ready for trial, was all, and if they had anything to say, and neither of them wished to make any statement."

Witness was asked the following question: "Before entering upon that examination, did you ask them if they wanted counsel or time to get counsel or anything of that sort?" He answered, "I don't believe I did, Mr. Murphy." Witness was asked the following question by the court: "Q. Did neither of them say anything about wanting to get counsel?" "A. No, neither one of the boys said whether they wanted to get counsel or not. I didn't ask them if they wanted counsel. They were not represented there at the trial. When any one is not represented by counsel I try to make the examination as fair to the defense as I can."

R. B. Cotham testified that he was the official court stenographer; that in the performance of his duties he sometimes took down testimony in preliminary hearings; that he took and transcribed the testimony of several witnesses in the case of the State against the appellants. Witness identified the manuscript that was presented to him as his official transcript of that testimony. Witness was asked the following question: "Q. You took down everything that occurred at the trial, did you?" "A. Yes, sir; I think I did." "Q. The preliminaries of the examination as well as the other matters?" "A. I am not so sure about that, Mr. Murphy, as to whether I took all of the preliminaries down or not." "Q. Well, I see it says here, 'The State of Arkansas (after styling the case) appears by prosecuting attorney John Hoskins, Esq., and the defendants, Gus Berger and George Ruloff, appear in person but not being represented by counsel. The State of Arkansas, in order to sustain its charges against the defendants, introduced the following testimony.' Now were Ruloff and Berger asked if they wanted counsel or if they had counsel?" "A. I don't remember of any such question being asked them at that time."

The appellants testified that they were not asked by any one before the examining trial whether they wanted an attorney or counsel to represent them.

Joe Wakelin, for the State, in rebuttal testified as follows: "I was present in the municipal court when the preliminary hearing of Ruloff and Berger was had charged of robbery." Witness was asked: "At the beginning of the trial what action did the court take?" Witness answered, "Well, as near as I remember, the court told them that they were charged with robbery and asked them if--I think he asked them if they wanted any counsel or had anything to say."

On cross-examination witness was asked: "And do you say that he (the court) asked them if they wanted counsel?" He answered: "I don't remember whether it was 'wanted' or if 'they had' and he told...