Spurgeon v. State

• Decision Date: 09 July 1923
• Docket Number: 100
• Citation: 254 S.W. 376,160 Ark. 112
• Parties: SPURGEON v. STATE
• Court: Arkansas Supreme Court

254 S.W. 376

160 Ark. 112

SPURGEON v. STATE

No. 100

Supreme Court of Arkansas

July 9, 1923

Appeal from Pulaski Circuit Court, First Division; John W. Wade Judge; reversed.

Judgment reversed and cause remanded.

Isgrig & Dillon, Murphy, McHaney & Dunaway, for appellant.

1. This record, we think, makes clear the error of the trial court ill denying the petition for change of venue. The statute does not mean that a supporting witness, to be credible, must have talked with every citizen in every township in the county, and that he be able, on examination, to give the name of every mail with whom he talked. 120 Ark. 302; 85 Ark. 536; 54 Ark. 243.

2. The court committed error prejudicial to the defendant in the selection of the jury, (a) in holding as qualified, over the defendant's objections, six jurors who showed in their voir dire examination that they held a fixed opinion unfavorable to the defendant, and (b) in excusing three jurors from service, over defendant's objections, who showed opinions favorable to his innocence.

3. The indictment specifically charged the crime of injury to real property. That alone was the issue. It was prejudicial error to admit proof of the amount and extent of the damage caused by the explosion, the value of the property, the amount of the loss, and the fact that eight women and children were occupants of the house at the time.

4. That the alleged confession in this case was not freely and voluntarily made, is clear, yet it was incumbent on the State to show that it was free and voluntary. Underhill on Crim Evidence, 2nd ed., par. 126, 238, 283; Greenleaf, Ev., par 219; 1 R. C. L. 552, 560, 568; 50 Ark. 305; 107 Ark. 568; Id. 332; 114 Ark. 481; 262 F. 473; 66 Ark. 509; 122 Ark. 606; 115 Ark. 387; 69 Ark. 599; 74 Ark. 397; 97 Ark. 453; 125 Ark. 267; Id. 263; 28 Ark. 121; Id. 531; Wigmore on Evidence, vol. 1, § 861; Id. vol. 3, § 2097. The question of the admissibility of a question is purely a question for the court; and, in this case, it was error to submit that question to the jury.

J. S. Utley, Attorney General, John L. Carter and Wm. T. Hammock, Assistants, for appellee.

1. The testimony of the supporting witnesses was in large measure based on their personal opinions, and none testified that they had discussed the case with the citizens in all parts of the county. Appellant failed to make the showing contemplated by the statute, C. & M. Digest, § 3087. None of the witnesses claimed to have a general knowledge of the state of mind of the citizens of all portions of the county. 120 Ark. 302, 308; 141 Ark. 509; 149 Ark. 646; 130 Ark. 457; 146 Ark. 328; 54 Ark. 243.

2. There was no error nor any abuse of discretion in the court's ruling on the competency of jurors. 16 R. C. L. 262; Id. par. 80; 120 Ark. 193; 80 Ark. 15; 47 Ark. 180; 113 Ark. 301; 101 Ark. 443; 85 Ark. 64; 109 Ark. 450; Am. St. Rep. vol. 9, p. 747, and cases cited; 149 Cal. 310; 150 Ark. 555.

3. The admissibility of a confession is a question for the court. 28 Ark. 121. The voluntary statements of a prisoner, though made to an officer and while in that officer's custody, are admissible in evidence against him. And the fact that the confession was made without caution to the accused that it might be used against him does not render it incompetent. 107 Ark. 568; 18 Ark. 156; 14 Ark. 555; 94 Ark. 343; 114 Ark. 574.

MCCULLOCH, C. J. HART, J., concurs.

OPINION

MCCULLOCH, C. J.

The defendant, John G. Spurgeon, was indicted and convicted under a statute which makes it an offense punishable by fine, or imprisonment in the State Penitentiary, to "wilfully or maliciously destroy or injure any inclosure, building * * * or any real or personal property whatsoever, by means of dynamite, gunpowder or other explosive." Crawford & Moses' Digest, § 2528. The charge in the indictment is that defendant injured a dwelling house in the city of Little Rock, owned and occupied by W. J. Kooms, by placing on the porch a dynamite bomb, which exploded, and practically wrecked the building.

The theory of the State was that defendant committed the crime in connection with one Rawles, and both of these men were arrested together as they drove by the scene of the crime shortly after the bomb exploded. After the explosion a crowd collected at the scene, and shortly thereafter defendant and Rawles drove by in an automobile driven by Rawles, with the license plates turned upside down and no rear light burning.

The explosion occurred about one or two o'clock on the morning of October 26, 1922. There is a conflict in the testimony as to the precise hour. This conflict only affects the weight of the testimony introduced by defendant in an effort to establish an alibi. The conflict must be treated as settled by the verdict of the jury, and need not be further discussed.

The two accused men were taken to the city hall as soon as arrested, and held in separate confinement, and testimony was adduced by the State to the effect that both of the men made confessions--Rawles first, and defendant later, after Rawles' confession was reported to him. The defendant denied participation in the crime, and testified that the alleged confession was not voluntary, but was induced by promises made to him by police officers, and extorted from him by threats and brutal treatment on the part of those officers.

The theory of the State was that defendant and Rawles committed the crime jointly, and that it was done as a punishment of Kooms, who was a mechanic on strike, and was about to return to work. There was a strike of railroad shopmen, and defendant, Rawles and Kooms, were all members of the union, and were strikers. Kooms was about to return to work, despite the unsettled strike, and he testified that he was approached by defendant on the subject, and when he told defendant that he was going to return to work, defendant told him that he "would be sorry for it." Defendant admitted that he had a conversation with Kooms about the latter returning to work, but denied that he made the statement attributed to him, or made any statement in the nature of a threat.

Rawles did not testify in this case, and was not put on trial, the undisputed testimony being that he was promised immunity from prosecution in order to induce his confession, but, after Rawles made the confession and disclosed the information that bomb material could be found buried in defendant's yard, officers went there and found such material buried there. Defendant undertook to explain away this circumstance. The State's case therefore rests upon defendant's confession and proof of circumstances referred to above.

Defendant relied on his own testimony denying the charge, and also the testimony of several witnesses to the effect that at the time of the explosion he was at home and in bed. Defendant undertook to explain his presence at the scene of the crime with Rawles by stating that his efforts had been to repress lawless methods by strikers, and that Rawles came to his house that night, woke him up and told him about placing the bomb on Kooms' front porch, and that he went with Rawles with the hope that they could get there before there was an explosion. All these questions made an issue of fact for the jury, and there was sufficient testimony to support the verdict.

The first contention made by counsel for defendant is that the court erred in refusing to grant a change of venue.

Defendant was indicted a few days after the commission of the alleged offense, and was put on trial about the middle of December, 1922, and this resulted in a mistrial. The last trial was begun on January 8, 1923, and, as above stated, resulted in defendant's conviction and sentence to the State Penitentiary. Before the first trial, defendant filed his petition for a change of venue on the ground that the inhabitants of the county were so prejudiced against him that he could not obtain a fair and impartial trial. Crawford & Moses' Digest, § 3087 et seq. This petition was verified by defendant as required by law, and was supported by the affidavits of seventy qualified electors of the county, who were actual residents of the county and not related to the defendant in any way. The court required the production of all the affiants who were relied upon in support of the petition for change of venue, and most of them were called before the court by the State for examination as to their credibility. During the progress of the examination the court announced that the defendant would be required to produce all affiants who were relied upon, and defendant's counsel saved exceptions to this ruling. All of the affiants who were produced were examined by the State, but some of the supporting affiants were not produced by the defendants. The court overruled the petition, and the trial proceeded, resulting in a mistrial, as before stated.

Before the commencement of the last trial, defendant filed an additional petition for change of venue, with several of the supporting affiants to the original petition joining in affidavits in support of the second petition. These were examined again, and the court overruled the last petition. When the last petition for change of venue was filed, an order was made, by agreement, that the original petition should be considered with the last petition, and that the examination of the witnesses taken on the former petition and transcribed by the stenographer should be treated as part of the record, the same as if the witnesses were there and reexamined. The court again overruled the petition.

The first contention in regard to the ruling on this subject is that the court erred in requiring the accused to produce the supporting affiants for examination, and counsel insist that all those who...