Strong v. State

• Decision Date: 02 March 1908
• Parties: STRONG v. STATE
• Court: Arkansas Supreme Court

109 S.W. 536

85 Ark. 536

STRONG v. STATE

Supreme Court of Arkansas

March 2, 1908

Appeal from Lee Circuit Court; Hance N. Hutton, Judge; affirmed.

Judgment affirmed.

R. D Smith and H. F. Roleson, for appellant.

William F. Kirby, Attorney General, and Daniel Taylor, for appellee.

WOOD J. MCCULLOCH, J., (concurring).

OPINION

WOOD, J.

Appellant was convicted of murder in the first degree for the killing of one Jesse Garretson, and appeals to this court.

There was no error in overruling appellant's motion for continuance. The testimony showing a fight in the spring before between appellant and Garretson was too remote to throw any light upon the conduct of the accused at the time of the killing. Such testimony was irrelevant and improper. It is not shown to have had any connection whatever with the fatal ren-counter.

Appellant filed a motion to change the venue supported by the affidavits of one Robert Lofton and Dan Bronson. To test the question of whether or not they were credible persons, the court permitted the affiants to be examined. The court, after hearing their testimony, overruled the motion. This was a matter within the sound discretion of the court, like a motion for a continuance. We find no abuse of the court's discretion. On the hearing of the application for change of venue, it was not error to refuse to allow the sheriff to testify "that the feeling against the defendant in the county was so strong that he (the sheriff) deemed it advisable to take him to an adjoining county for safe keeping, to keep him from being mobbed." The statute (section 2318, Kirby's Digest) requiring the petition for change of venue to be supported by the affidavits of two credible persons does not contemplate that the truth or falsity of the affidavits shall be inquired into. The only question is whether or not the affiants--supporting witnesses--are credible persons. The inquiry must be confined to that. White v. State, 83 Ark. 36, 102 S.W. 715. The court may permit the witnesses themselves to be examined to determine that question, and also may permit "the testimony of other witnesses bearing on the credibility of the supporting witnesses, but can not go into the question as to whether the facts sworn to were true or false. The offered testimony of the sheriff was therefore collateral to the issue raised by the petition, and the court did not err in excluding it.

In the selection of the jury one of the talesmen was examined as follows:

Q. "Can you go into the jury box and try defendant in the same fair and impartial manner, giving to him the benefit of all reasonable doubt, and the presumption of innocence, the same that you would if he were a white man charged with the same offense?"

A. "I believe I could."

Q. "Do you know you could?"

A. "I think so."

Q. "Do you mean to say that, although the defendant is a colored man charged with killing a white man, you would require the same strict proof of his guilt and give him the benefit of all doubts the same as if he were a white man?"

A. "I believe I could."

Q. "Would you carry into the jury box with you any prejudice against defendant by reason of the fact that he is a colored man and killed a white man?"

A. "I might have some prejudice on that account."

Q. "Do you say that such prejudice would not influence you, but that you would give him the same kind of a fair trial and the same presumption of innocence that you would if he were a white man?"

A. "I think I could."

Q. "Would you in your deliberations allow the fact that he is a colored man charged with the killing of a white man to influence you at all in the decision of the case?"

A. "It might."

Counsel here challenged the jury for cause. The court then asked the following question: "You have said you could give defendant a fair and impartial trial. The question is, can you go into the jury box and try him from the testimony as it comes from the witness stand and the law as given you by the court, and return a verdict according to the law and the evidence, regardless of the color of defendant or the fact that he killed a white man?"

A. "I think I can."

The juror was declared competent. The defendant excepted to the ruling. Two jurors were selected after defendant had exhausted his challenges. The court did not err in holding that the juror was competent. The trial judge doubtless concluded that the juror had no prejudice against appellant on account of his color. The court observed the manner of the juror in giving his answers to the questions asked, and concluded that he was sincere. Many men express their honest convictions, in a somewhat indefinite and uncertain way, as "I believe so," "I think so." Often some men express themselves thus when they really have no doubt in their own minds about the truth or certainty of the existence of the fact they are asserting. The trial judge could better determine than this court, from the manner of the juror in giving answer, as to whether he had any prejudice against appellant on account of his race. The language set forth in the record does not warrant us in saying that he was so prejudiced. See Hardin v State, 66 Ark. 53, 48 S.W. 904.

The appellant and Garretson lived on the Winters place in Lee County. Appellant was an employee of Winters, but had an interest in the crops over which, it appears, the fight took place. Garretson was a share cropper or renter, and did have no interest on the crop. On the morning of the killing, and before it occurred, appellant was using the wagon of Winters to haul some cotton and cotton seed from the gin. Winters had told him to turn the wagon over to Garretson When he was through hauling the cotton and seed, and when he had hauled a load of corn. He had told Garretson to get the team as soon as Sim came back from the gin. Garretson demanded the wagon when the cotton and seed were hauled, and appellant refused to give it up, but Garretson seized the lines that were thrown down and drove the wagon away.

This, as it appears from what took place sometime after, greatly aroused the passion of appellant. For he was heard inquiring where Garretson went with the wagon. Appellant at this time had his shotgun, and was heard to say that "Garretson would not haul any corn that day unless he hauled it over his (appellant's) dead body." Garretson, after getting the wagon, went to a place called Moro. He was gone about an hour and a half. He is shown to have had a pistol, and invited parties to go over with him in the field where he was going to haul corn "to see it well done." Witnesses differ as to what was said and done by appellant and Garretson at the time of the fatal rencounter. It suffices to say that Garretson went into the field to haul the corn, he had his pistol, and his every act indicated that he intended to haul the corn, and, if resisted by appellant, to take his life, if necessary to accomplish his purpose. On the other hand, appellant was on the ground with his shotgun and equally determined to prevent Garretson from hauling the corn, even to the extent of taking his life if necessary to accomplish his purpose to prevent him. The jury were justified in finding that it was a mutual combat, in which both engaged after having ample time for premeditation and deliberation, and there was proof of express malice. So the facts fully warranted the jury in finding appellant guilty of murder in the first degree.

The court over the objection of appellant gave the following instruction:

"If the jury find from the evidence that the defendant was in a place where he had a right to be, and that, while the defendant was there, deceased came to the place after knowing that defendant was there and began an assault upon defendant, defendant was not bound to retreat, but might stand his ground, and might slay his assailant, if, from all the facts of the assault as they appeared to him, he honestly believed that such act was necessary to protect his life or prevent great bodily injury."

The instruction was not proper in a case of mutual combat, such as is disclosed by the facts of this record. For neither party had the right to be on the ground that belonged to some one else and disputing to the death over a matter that the law did not permit either one to settle "vi et armis." The law furnished the forum for such disputes. Both were in the wrong. For, if both were where they had the right to be, yet neither had the right to resist the possession of the other by force and to the extent of taking life. It was the duty of each to retreat, rather than to stand his ground and slay his adversary. The doctrine of standing one's ground in the defense of person, habitation or property had no place in the case. But the instruction was not prejudicial to appellant. It was more in his favor than otherwise, and he can not complain.

On the morning of the killing Garretson had asked a deputy sheriff "if a man had a right to his own crop," and the deputy replied: "If a man has no right to protect himself in his own crop,...