Simmons v. State
| Decision Date | 12 October 1931 |
| Docket Number | 146 |
| Parties | SIMMONS v. STATE |
| Court | Arkansas Supreme Court |
Appeal from Pulaski Circuit Court, First Division; Abner McGehee Judge; affirmed.
Judgment affirmed.
Walter A. Isgrig and Elmer Schoggen, for appellant.
Hal L. Norwood, Attorney General, and Robert F Smith, Assistant, for appellee.
Appellant and one J. R. Graham were jointly indicted for murder in the first degree. They were charged with killing one Elgin Jordan. Graham pleaded guilty, and appellant was tried in the Pulaski Circuit Court and convicted of murder in the first degree, and his punishment fixed at life imprisonment in the penitentiary. Appellant prosecutes this appeal to reverse the judgment of the circuit court.
The appellant, who was twenty-four years old, lived in North Little Rock, was married, and his occupation was electrical helper. According to appellant's testimony, he had never been in trouble before this except on two whiskey charges.
There had been a robbery of the Engleberger Cafe, but the evidence is in conflict as to whether appellant participated in this robbery. Appellant had known Graham, according to his testimony, four or five months. On the morning that Jordan was killed, appellant had gone near Moore's houseboat, he said, to meet a woman. He saw Graham at that time, and he testified that Graham asked him to carry him somewhere, as he had several times before.
He returned to where Graham was, Graham asked him to wait a minute, and then Graham went into a little tool shack, and came out pulling down, his pocket. Jordon was there, and he and Graham came up to the car. Graham got in the front seat and Jordan in the rear. Graham told appellant to drive out the 19th Street Pike, and while they were driving, they talked about money matters, and Graham said it was not right if Westerman owed Jordan part of the money, and that he ought to pay him, and that when he got out there he'd see that Westerman gave Jordan his part. According to appellant's testimony, they turned off the pike and drove a short distance and Graham told appellant to wait, that they would be back in a few minutes. When Graham told appellant they had reached the place, appellant stopped the car, and Graham and Jordan walked off together.
Graham came back to the car alone, and he and appellant came back to the city. Several days after this Jordan's body was discovered, and the examination showed two gun shot wounds that had caused his death. One bullet entered behind the left ear, ranged downward through the neck, coming out below the right ear. The other bullet entered below the left shoulder blade and passed through the body. Other evidence will be referred to in the opinion.
Appellant first contends that the evidence is insufficient to warrant a conviction of murder in the first degree. The evidence shows that appellant' and Graham were associates, frequently together both before and after the killing of Jordan. A short time before the killing of Jordan, Graham and others had robbed the Engleberger Cafe in North Little Rock. Graham testified that the appellant was involved in this robbery. Graham also testified that he and Westerman divided the money.
On the day of the killing of Jordan, appellant and Graham got in the front seat of the automobile and Jordan got in the back seat. They drove several miles out the Hot Springs Pike and left the pike and drove some distance and were gone a short time and Graham and appellant returned to the city in the car without Jordan. A few days thereafter Jordan's body was found, and two gun shots were in the body, either one of which would have killed him. The physician testified that the wound in the head killed him, but that if he had not been shot in the head, the other one would have killed him. Appellant and Graham were constantly together thereafter until Graham was arrested.
Graham testified that he did not know who killed Jordan. The appellant testified that Jordan and Graham left the car and went a few yards away, out of sight of the car, and that he heard two shots, and that Graham came back to the car and said that he had killed Jordan. This testimony of appellant is contradicted by Graham. If it occurred like appellant said it did, then Graham did know who killed Jordan. The statement of Graham that he did not know who killed Jordan could only mean that he and appellant both shot him, and that he did not know which one killed him. It cannot mean anything else, because, if Graham went out with Jordan alone, and fired both shots, he of course knew who killed Jordan.
The jury had a right to believe that Graham's statement was true, and that both Graham and appellant shot Jordan and that he did not know which one killed him. The jury may have believed that appellant and Graham thought Jordan knew too much about the cafe robbery and that they together took Jordan to the place where he was killed and that both of them shot him.
The undisputed proof shows that Jordan was claiming some of the money, and Graham, according to the evidence, was going to make Westerman pay Jordan some of the money. The circumstances and evidence very strongly indicate that both Graham and appellant drove Jordan out into the woods and killed him. There was ample evidence to justify the jury in believing that both of them took part in the killing. Another assignment of error relied on is the court's refusal to grant a peremptory instruction. This request for a peremptory instruction was of course based on the theory that the evidence was insufficient to support the verdict, and is the same as his first assignment of error. What we have just said answers this contention.
It is next contended that the court erred in refusing to furnish a full and complete panel of twenty-four jurors. The record shows that the appellant announced ready for trial, and waived arraignment and formal drawing of a jury, and entered a plea of not guilty. The record also shows that, during the examination of the regular panel for the purpose of selecting jurors to try the case, the name of Mrs. N. M. Harrison was called for examination, and the clerk announced that Mrs. Harrison had been excused, whereupon the following occurred: Mr. Isgrig: "How many jurors are on the panel?" Mr. Gladden (clerk): "There are twenty-one." Mr. Isgrig: "I want a full panel of 24 jurors and I won't proceed until it is completed, I am entitled to a panel, and I won't proceed further until I get it." Court: "The request is denied." Mr. Isgrig: "I except."
"The statute provides that by consent of the parties, the drawing of the jury may be waived, in which case the whole panel may be sworn, examined, and disposed of as provided in the preceding section." Crawford & Moses' Digest, § 3146.
The preceding section referred to provides that when the panel is exhausted, bystanders may be summoned. We think these two sections clearly show that when the drawing of the jury has been waived the defendant is not entitled to a full panel of 24 jurors.
Section 3144 of Crawford & Moses' Digest provides for the method of selection in felony cases. In construing these §§, 3144 and 3146, of Crawford & Moses' Digest, this court said: Bohannon v. State, 160 Ark. 431, 254 S.W. 683.
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