Sneed v. State

• Decision Date: 05 June 1886
• Citation: 1 S.W. 68,47 Ark. 180
• Parties: SNEED v. STATE
• Court: Arkansas Supreme Court

1 S.W. 68

47 Ark. 180

SNEED v. STATE

Supreme Court of Arkansas

June 5, 1886

APPEAL from Saline Circuit Court, Hon. J. B. WOOD, Circuit Judge.

Judgment affirmed.

Met. L Jones for Appellant.

The deposition of Waller was improperly admitted. This witness was never subpoenaed.

The continuance should have been granted. Appellant was entitled to be confronted with his witnesses.

The Waller testimony does not come within the rule of Hurley v. State, 29 Ark. 17; nor Dolan v. State, 40 Ark. 504. See 33 Ark. 539.

The jurors who stated that they had formed opinions, should have been excused.

The rule as to admitting what a witness would testify, if present, to defeat a continuance, does not apply to criminal cases. The defendant is entitled to have the benefit of the witnesses' testimony before the jury. If it does apply it is unconstitutional.

Dan. W Jones, Attorney General, for Appellee.

In admitting this written statement of Waller, the court committed no error. Hurley v. State, 29 Ark. 17; Dolan v. State, 40 Ark. 454.

The instructions, given at the instance of the state as well as those by the court on its own motion, were excepted to in mass. They were all legal and exceedingly fair. But any of them being good, all must stand. Carroll v. State, 46 Ark. and cases there cited. 45 Ark. 539.

The appellant's third, sixth, eighth, tenth and thirteenth instructions were refused. The third was in reference to the degrees of murder, and the jury finding the appellant guilty of manslaughter, was unaffected by its refusal.

The sixth, as asked, was misleading to the jury by conveying the idea that if the witness contradicted himself, they should disbelieve everything he said. The court had already properly stated the law in the fifth for appellant, and on its own motion also. Yoes v. State, 9 Ark. 43; Atkins v. State, 16 Ark. 569; Drennen v. Lindsey, 15 Ark. 359.

The eighth asked that appellant be excused for what he did if the deceased or his party fired on him first. This was erroneous, for if he could then avoid further conflict without greater danger to himself, it was his duty to do so. Palmore v. State, 29 Ark. 250; Dolan v. State, supra. The third instruction, at the instance of the state, was a proper direction on the point. The thirteenth was faulty in calling the attention of the jury to the weight they should give to a part of the evidence, while the court gave instructions as to reasonable doubts in the twelfth for appellant, and in those given on its own motion.

The appellant fails to show how he was prejudiced in the rulings upon the qualifications of jurors, because each one with whom any fault could be found, was challenged by him, and he does not show that he was compelled to take an objectionable one after his challenges were exhausted. But the court committed no error as to the jurors. Wright v. State, 43 Ark. 641.

The evidence fully sustains the verdict, and the instructions taken together as a whole, were full, clear and impartial, and the appellant has no just ground of complaint in the whole case.

OPINION

SMITH, J.

B. C. Sneed was, jointly with his son, Dink Sneed, and his son-in-law, McCall, indicted by the grand jury of Grant county, for the murder of Jacob Rhodes. The venue was changed to Saline, and, upon a separate trial, he was convicted of voluntary manslaughter, and sentenced to the penitentiary for four years. A new trial was denied him, and numerous exceptions were saved, of which the following only are deemed worthy of notice:

1. It was alleged that the verdict was contrary to the evidence.

The proofs tended to show the existence of a bitter feud between the indicted parties and the deceased, his brother Henry, and brother-in-law, Carver. In fact they were at open war; habitually wearing arms in expectation of a reencounter. The elder Sneed had sworn out a warrant, charging Henry Rhodes with the removal or disposal of a horse, upon which he held a mortgage lien. Jacob and Carver were subpoenaed as witnesses. On the day of trial, the partisans of both sides attended, the majority of them with arms in their hands. And after the trial was concluded, about three o'clock p. m., Jacob Rhodes and Carver started home afoot. They were armed with double barreled shot-guns, and traveled the same highway, by which it was necessary to reach their homes. They were soon followed by McCall and the younger Sneed, also on foot, the latter carrying in his hand a large navy repeater, with his thumb on the cock and his finger on the trigger. Close in the rear rode his father, with a gun across his lap, and three other persons, who had no connection with the quarrel. By quickening their pace, they overtook the Rhodes party at the distance of three quarters of a mile from the magistrate's house, where the trial had taken place, and just before reaching a road which diverged to the right, and led to the home of Rhodes and, his companion, McCall brought on the affray by attempting to seize Carver's gun. A scuffle ensued, ten or a dozen shots were fired in rapid succession, and Jacob Rhodes fell, pierced with two balls. After he was down, B. C. Sneed beat him over the head, shoulders and breast with his gun, and fled the same night to Texas. Jacob died next day.

Under these circumstances, it is wholly unimportant to the proper disposition of this appeal, to inquire who fired the first shot, or whether B. C. Sneed fired before he was shot at, or whether it was his shot that cut down Jacob, or whether Jacob's death was caused by a gun-shot wound, or by the blows that were rained upon him after he had fallen. Indeed there are indications in the record that the whole affair was preconcerted, so far as the Sneed party was concerned; and we should have been loth to disturb a verdict for a higher grade of homicide, if the jury had so found. It will suffice to say that the verdict was as favorable to the defendant as the law and the testimony warranted.

2. The court gave an elaborate charge to the jury, besides three special directions at the instance of the prosecution, and nine at the instance of the defendant, rejecting five of his prayers. Exceptions in gross were reserved to the general charge of the court, and to the instructions in behalf, of the state. We perceive no serious objection to either or to any part thereof.

The law was fairly given and all aspects of the case covered. One of the rejected prayers related to the law of murder, and its refusal could not have prejudiced the defendant, as he was found guilty of a lower offense. Another was in reference to a point upon which the court had already given sufficient directions. The remaining prayers, if granted, might have led the jury to believe that the defendant was to be excused for the part he had taken in the fray, if the deceased or his party fired on him first, or if they were unable to tell whether the deceased died from wounds inflicted by the defendant himself.

3. In empaneling the trial jury, two persons who had been summoned on the venire, stated on voir dire, that, while they had neither formed nor expressed any opinion as to the guilt or innocence of the accused, and had no partiality for or prejudice against him, yet they had certain impressions resting on their minds in regard to the case which it would require evidence to remove; that these impressions were not derived from conversations with the witnesses, or with any one who professed to know the facts connected with the killing of Rhodes, but...