Rush v. State
| Decision Date | 18 May 1964 |
| Docket Number | No. 5095,5095 |
| Citation | 379 S.W.2d 29,238 Ark. 149 |
| Parties | Frederick L. RUSH, Appellant, v. STATE of Arkansas, Appellee. |
| Court | Arkansas Supreme Court |
Hardin, Barton & Hardin, Ft. Smith, for appellant.
Bruce Bennett, Atty. Gen., by Jerry L. Patterson, Asst. Atty. Gen., Little Rock, for appellee.
Appellant, Fred Rush, hereinafter sometimes referred to as Fred, has appealed from a conviction of murder in the first degree resulting in a life sentence in the penitentiary for the alleged killing of his stepfather, Paul Rush, hereinafter sometimes referred to as Paul, who was also Fred's adoptive father. The State's theory of the case is that Fred, his cousin Raymond Wood, and Carolyn Brown, entered into a conspiracy to kill Paul, and did kill him about 11 p. m. on May 13, 1962.
The State contends that in carrying out the conspiracy, in the early part of the night of May 13, Fred went by the V & R Sales Company, a furniture factory operated by the Rush family in Ft. Smith, and intentionally left a light burning on the third floor of the building; that later, in accordance with the plans of the conspirators, he drove by the building with his wife, and his children by a former marriage, and pretended to discover the light burning; that he then went to the apartment of his father, Paul, who was at the time separated from Fred's mother, and inveigled him into going to the factory with appellant to investigate the reason for the light burning; that in furtherance of the conspiracy, Raymond Wood was hidden in the building armed with a .22 caliber rifle waiting to kill Paul; that Carolyn Brown was waiting for Wood in an automobile outside the factory to enable him to escape after having killed Paul; that Wood did kill Paul and was driven away from the scene by Carolyn as planned; that in addition to killing Paul by shooting him in the neck with a .22 caliber rifle, Raymond shot Fred in the shoulder to allay any suspicion that Fred was in any manner involved in the killing.
Immediately after the killing, Fred was taken to a hospital and while there he was questioned by officers of the law.
Pat Taylor, a paramour of Fred's, was living in a motel in Ft. Smith with her cousin, Carolyn Brown. The next day, after the killing, Pat Taylor, Raymond Wood and Carolyn Brown were questioned by officers; the questioning continued from time to time for months; they denied any knowledge of the killing.
Fred appears to be pretty much a libertine; although he was married and was living with his wife, he was keeping Pat Taylor. About nine months after the murder of Paul, Fred quit Pat Taylor and began to bestow his affections on one Louise Bromley. Along about the first of February, 1963, he left Ft. Smith with Louise Bromley and Carolyn Brown. They went to Houston, Texas, where they all lived together in an apartment.
About a month after Fred left for Houston with Carolyn Brown and Louise Bromley, and after first conferring with one Burnside, a professional bondsman and private detective, who had been engaged by the heirs of Paul, Pat went to the law enforcement authorities and told them that Fred, Raymond Wood and Carolyn Brown had conspired to kill Paul; that the plans to carry out the conspiracy had been worked out in her (Pat's) apartment in her presence. The arrest and conviction of Fred followed.
On appeal, appellant first contends that the court erred in refusing to grant a change of venue. At the hearing on the petition for change of venue it was shown that a local newspaper had given extensive coverage to the testimony of Pat Taylor and Bill Irons, witnesses for the State, who had testified at the preliminary hearing, and that there was great interest in the case all over the county. Attached to appellant's petition for a change of venue were the affidavits of about twelve residents of Sebastian County not related to the defendant. The substance of the affidavits is that the defendant could not get a fair and impartial trial in the county. The affiants appeared at the hearing on the petition and gave sworn testimony verifying what was said in the affidavits. There is no indication that any of the affiants is not a person of good character. The State offered no counter-affidavits and no rebuttal testimony.
Prior to the adoption of Initiated Act No. 3, adopted by the voters in 1936, our change of venue statute read: 'Such order of removal shall be made on the application of the defendant by petition setting forth the facts verified by affidavit, if reasonable notice of the application be given to the attorney for the State, and the truth of the allegations in such petition be supported by the affidavits of two credible persons who are qualified electors, actual residents of the county and not related to the defendant in any way.' C. & M. Digest (1921), § 3088.
This court has held that under the provisions of the foregoing statute the only issue to be decided on a petition for change of venue is the credibility of the affiants. The allegation of inability to obtain a fair trial could not be controverted. Dewein v. State, 120 Ark. 302, 179 S.W. 346; Strong v. State, 85 Ark. 536, 109 S.W. 536. It was also held that a credible person, within the meaning of the statute, is one who has knowledge of the feeling of the people throughout the county and is not merely a person ordinarily considered to be worthy of belief. Duckworth v. State, 80 Ark. 360, 97 S.W. 280; Speer v. State, 130 Ark. 457, 198 S.W. 113; Williams v. State, 162 Ark. 285, 258 S.W. 386; Hedden v. State, 179 Ark. 1079, 20 S.W.2d 119.
As heretofore mentioned, the change of venue statute was revised by Act No. 3. The statute now provides for the filing of counter-affidavits and the taking of testimony on the truth of the facts set out in the original affidavits, and provides that the court shall grant or refuse the petition according to the truth of the facts alleged in it and established by the evidence. Ark.Stat.Ann. § 43-1502 (1947). And this is the method that has been used since the adoption of Act No. 3. Lauderdale v. State, 233 Ark. 96, 343 S.W.2d 422; Perry & Coggins v. State, 232 Ark. 959, 342 S.W.2d 95.
In Leggett v. State, 227 Ark. 393, 299 S.W.2d 59, hundreds of veniremen had been examined for the trial on the merits before the filing of the petition for change of venue, and the jury was almost complete. From the testimony of the veniremen, previously heard, the court was able to reach the decision that the defendant could obtain a fair and impartial trial in the county.
In Robertson v. State, 212 Ark. 301, 206 S.W.2d 748, the court said: (Emphasis added).
In the case at bar there is no conflict in the testimony on the petition for change of venue. As heretofore mentioned, the State produced no affidavits and no witnesses on the question, and we cannot say that the...
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Berry v. State
...and in view of the conflict in the testimony, we are unable to say that any abuse of this discretion was shown." In Rush v. State, 238 Ark. 149, 379 S.W.2d 29 (1964), we held that the trial court had abused its discretion in not granting the change of venue based upon twelve affidavits when......
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Glover v. State, 5479
...may attend the source of information from which a juror may form an opinion as was clearly set out in the case of Rush v. State, 238 Ark. 149, 379 S.W.2d 29. In that case Fred Rush was being tried for the murder of his stepfather, Paul Rush, who owned and operated a furniture company in For......
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...that Appellant asserts makes it irrelevant and highly inflammatory. In support of his argument, Appellant cites us to Rush v. State, 238 Ark. 149, 379 S.W.2d 29 (1964), where this court held that a pistol not linked to the crime was not properly admitted into evidence. In so ruling, this co......