Shinn v. State

• Decision Date: 24 October 1921
• Docket Number: 174
• Citation: 234 S.W. 636,150 Ark. 215
• Parties: SHINN v. STATE
• Court: Arkansas Supreme Court

234 S.W. 636

150 Ark. 215

SHINN v. STATE

No. 174

Supreme Court of Arkansas

October 24, 1921

Appeal from Pope Circuit Court; A. B. Priddy, Judge; affirmed.

Judgment affirmed.

Hays & Ward, for appellant.

The defendant on cross examination was subjected to a character of cross examination not permissible in the case of other witnesses which was highly prejudicial to his cause. 53 Ark 387; 58 Ark. 473; 60 Ark. 450; 70 Ark. 107; 72 Ark. 427; 75 Ark. 548; 78 Ark. 284; 91 Ark. 555; 103 Ark. 28; 104 Ark 162; 106 Ark. 160.

It was error to allow the State to recall defendant, after he had closed his case, for the purpose of contradicting him. The evidence could not have been introduced by the State to establish its case, and was collateral to the issue, hence could not be contradicted. 34 Ark. 480; 59 Ark. 431; 2 Ark 409; 76 Ark. 366; 99 Ark. 604; 101 Ark. 147; 103 Ark. 119.

The tests made with the gun, alleged to have been used in killing deceased, upon empty shells to show the impression made by the plunger, were prejudicial, as the same impression would not have been made with a loaded shell. Tests should be made under identical conditions with the original as nearly as possible. 18 C. J. 810; 115 Ark. 101.

The tests made under direction of the court with the gun and shells, away from the court house in the absence of defendant, was equivalent to taking testimony in his absence. 108 Ark. 191; 131 Ark. 320; 51 Ark. 553. Defendant could not, even by his own acts, consent to such procedure. It also amounted to the taking of evidence in the absence of the trial judge, whose presence at all stages of the trial is essential. 74 Ark. 19; 71 Ark. 112; 88 Ark. 62; 104 Ark. 629.

J. S. Utley, Attorney General, Elbert Godwin and W. T. Hammock, assistants, for appellee.

The testimony of witness Burks, which appellant viciously attacks, if believed by the jury, would support the verdict and judgment. 36 Ark. 653; 32 Ark. 220. The jury was the judge of the credibility of the witness.

The testimony elicited from appellant on cross-examination was without any objection raised on his part. Where no objection is raised, its admission will not be reviewed on appeal. 130 Ark. 111; 101 Ark. 443; 99 Ark. 462; 129 Ark. 316. As appellant answered a number of the questions propounded to him in the negative, he has no right to complain. A party cannot complain of the admission of evidence favorable to him. 52 Ark. 480; 118 Ark. 569. When a defendant in a criminal prosecution takes the witness stand in his own behalf, he places himself in the attitude of any other witness. 114 Ark. 239; 91 Ark. 555. A witness may be recalled for further cross-examination. 75 Ark. 574. The evidence so elicited was admissible for the purpose of reflecting upon the credibility of appellant. 138 Ark. 465; 139 Ark. 13.

The shotgun shells, fired without a load, in the court room and introduced in evidence, were so introduced at the request of both parties, and appellant cannot now complain of testimony offered by himself. 5 Ark. 41; 33 Ark. 180; 115 Ark. 392.

The further tests made with the gun and shells were at the request of appellant, and if there was error, it was invited by appellant and he has no right to complain. 108 Ark. 191. Not having requested the privilege of being present when the test was being made, it is too late now for him to complain. 86 Ark. 317.

The court could properly send its duly authorized officer with the jury Without accompanying them himself, especially where this was done at appellant's request. 114 Ark. 245.

MCCULLOCH, C. J. HART, J., dissenting.

OPINION

MCCULLOCH, C. J.

This is an appeal from a conviction of murder in the first degree, the punishment of appellant being fixed by the jury at life imprisonment.

The accusation against appellant is that he killed Lewis Vandergeten in Pope County on the night of November 27, 1920, by shooting him with a gun.

The first contention of appellant is that the evidence is not sufficient to sustain the verdict.

The killing occurred in a building called the "wash-house," at a coal mine about three miles from Russellville. On the night mentioned, the deceased and a crowd of other boys and men were engaged in playing craps in the wash-house at the coal mine, and about 11 o'clock they were held up and robbed by three masked men. The three men walked into the wash-house by different doors, and one of them coming through the door at the north was armed with a shotgun. Deceased failed, when ordered, to put up his hands, and the man with the gun shot him, killing him instantly. The weapon used was a double barrel shotgun, and the empty shell was extracted and thrown on the floor at the spot where the shot was fired. One of the participants in the crap game who testified as a witness identified appellant as the man who fired the shot. The witness stated that he was well acquainted with appellant, and was standing in the crowd in the wash-house when the three robbers entered; that he saw enough of appellant's face to be able to recognize him and did recognize him as the man who fired the shot. Two other witnesses testified that the next morning after the killing appellant, apparently laboring under excitement, in speaking of the killing, said: "I done it. I might as well say I done it. I will be accused of it anyhow." That was, according to the testimony, before the appellant was arrested, and before any accusation was made against him. Appellant and his step-mother lived in about 300 yards of the wash-house. He had been to Russellville that night, and shortly before the killing he and two other young men drove out to the wash-house in a jitney, entered the house and participated in the game. Appellant left the house in a few minutes, and about fifteen or twenty minutes later the robbers entered and committed the crime. Appellant testified that when he left the wash-house he went home and remained there for about an hour and a half, and on his return to the wash-house ascertained that the crime had been committed, but that he was not a participant in the crime, and had no knowledge of it until he had returned to the wash-house. A double-barrel shotgun was found at the house occupied by appellant and his step-mother, and on examination it appeared that one of the barrels of the gun had been recently fired. Shells of the same size and make as the empty one found on the floor in the wash-house were found at appellant's house. During the progress of the trial there were experiments made by firing from appellant's gun the same kind of shells, but these are matters which will be referred to later in discussing other assignments of error.

There was sufficient evidence to sustain the verdict. The credibility of the witnesses was a question for the jury to determine, and there was testimony adduced, both direct and circumstantial, which tended to establish appellant's guilt. There are other assignments of error which will be discussed in the order mentioned in the brief of counsel.

Objections were made to certain questions propounded to Mrs. Bettie Shinn on cross-examination and the exhibition to her of a letter said to have been received from appellant without introduction of the letter before the jury. Mrs. Shinn was asked whether or not she had corresponded with appellant while he was temporarily held in the penitentiary under the present charge. She answered in the affirmative, and the prosecuting attorney thereupon held up a letter and asked her if she had received that letter from appellant. There was a long colloquy then between counsel in the case, in which appellant's counsel objected to the introduction of any correspondence on the ground that it was not admissible because written from the penitentiary, and also on the ground that the letter itself should first be shown to the witness. The court permitted the question to be asked in the following form, and answered:

"Q. I will ask you if you got a letter from Shinn in which he stated this, 'You all know that I left home and come back through the same door, and that the lights were burning when I left and when I come back, and that I could not have took my gun or brought back any gun, as the lamp was lit when I come back, and the kind of pants I wore, so you will be asked all these, and that I slept on a couch in the north room, your room, and that the lights burned all night, and me and Luther got up and fed and milked the cows, etc., in the morning.' Did you get a letter from him with a statement like that from him?

A. "Yes, sir."

Without determining whether or not the contents of the letter were properly brought to the attention of the jury, we are clearly of the opinion that there was no possible prejudice that could have resulted from this incident in the trial. There was nothing unfavorable to appellant's defense contained in the purported statement in the letter. It was written to his step-mother, with whom he was living at the time the killing occurred, and with whom he sustained, according to the testimony, the most cordial relations, and the statement does not tend to incriminate appellant in any way, so therefore there was no prejudice in its introduction.

It is next contended that there was error in permitting appellant to be cross-examined concerning his past conduct. Appellant was asked all sorts of questions about having been a gambler and about other offenses and immoralities. This was merely for the purpose of testing his credibility and was admissible as such. This court so decided in the case of Hollingsworth v. State, 53 Ark. 387, 14 S.W. 41. This was with regard to a witness other than the accused himself, but we have since then frequently held that the same rule applies to a defendant in a criminal prosecu...