Sullivan v. State

• Decision Date: 25 February 1924
• Docket Number: 190
• Citation: 258 S.W. 643,163 Ark. 11
• Parties: SULLIVAN v. STATE
• Court: Arkansas Supreme Court

258 S.W. 643

163 Ark. 11

SULLIVAN v. STATE

No. 190

Supreme Court of Arkansas

February 25, 1924

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

Judgment affirmed.

T M. Mehaffy, M. E. Dunaway and E. L. McHaney, for appellant.

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

OPINION

SMITH, J.

Appellant, Joe Sullivan, and one Emory Connell were indicted by the grand jury of Pulaski County on July 3, 1923, for killing L. C. Hays, and also for killing George Moore, both of whom were killed at the same time and place. The case in which the killing of Moore was alleged was set for trial on July 30, 1923, at which time a special venire of a hundred men was ordered. The case was reset for August 1, but was then reset for August 20, and the special veniremen, being in court, were ordered to report again for duty on September 17, at which time the State elected to go to trial on the indictment charging the killing of Hay. Thereupon the defendants announced ready for trial, but first moved to quash the special venire on the ground that it had been summoned without authority, and that the act of the court in ordering the special venire to report at the times reset for the trial was unauthorized and prejudicial. It is insisted that, on account of the facts hereinafter recited, the special veniremen had imbibed the general prejudice which existed against the defendants, or had at least been subjected to influences which were hostile to them.

The various continuances were either asked by the defendants or consented to by them, and no objection was made to the summoning of the special veniremen, or to the act of the court in ordering the return, until the case was called for trial on the day the actual trial began, at which time the motion aforesaid was filed.

During the adjournment stated, which covered a portion of what would ordinarily have been a part of the summer vacation, the court had, for causes not shown, excused a number of the members of the regular panel, so that, when the case was called for trial, only fifteen members of the regular panel of the petit jury responded to the call of their names. Thereupon the court ordered the sheriff to summon jurors to become members of the regular panel, and a sufficient number of persons were called from the special venire and qualified for that purpose so that when the drawing of the jury began, which the defendant demanded, there were twenty-four jurors in the box. An exception was saved to the action of the court in thus filling the jury.

We think no error was committed in the respects stated. These were matters over which the circuit judge must necessarily have a wide discretion. It is thoroughly settled that a defendant has no right to the services of any particular juror. He may only demand that he be tried before a fair and impartial jury, and it is difficult to imagine a case where the judge had excused a juror from further service on the regular panel which would afford any defendant just cause of complaint.

In the matter of summoning the special veniremen the trial judge is also necessarily vested with a wide discretion. He is charged with the duty of dispatching the business on his dockets, and should, of course, do so in a way to avoid either unnecessary delay or unnecessary expenses. Many eases recognize the right of the trial judge to order special jurors to be summoned before the actual trial begins, that they may be available without involving the delay of waiting for this to be done after the trial has begun. The necessity for the action here taken is shown by the fact that the jury was not completed until both the regular panel and the special venire had been exhausted, and opportunity was, no doubt, afforded by the examination of each venireman on his voir dire to ascertain whether, on account of the continuances, or for other reasons, he was not qualified to serve at the trial, and there is no assignment of error that the defendants were compelled to accept any juror who was in fact disqualified for any reason.

It was the theory of the State that the defendants were professional criminals, who, because of their crimes, were apprehensive of arrest at any time. That Connell had only recently killed a man in Sapulpa, Oklahoma, and that he and Sullivan had, on the night before they killed Hays and Moore, committed three separate burglaries, in one of which they had stolen a Ford touring car, in another they had stolen a Ford coupe, and in a third had broken into a private home, where they had stolen some lace dresses and other wearing apparel and various articles of jewelry and silverware, which, the owner testified, were worth, or had cost, about two thousand dollars. That defendants knew these crimes would be investigated and an effort made to arrest the culprits who had committed them, and that they had prepared to resist any effort to effect their arrest, and, as a means to this end, they were armed with a .45 caliber pistol and two automatic .32 caliber pistols, and that, as soon as they were advised that Hay and Moore were officers, they commenced firing, to prevent the arrest which they supposed the officers had come to make. According to the State's theory, defendants thought the officers were about to arrest them, and they killed the officers to prevent this being done. Many witnesses gave testimony tending to support this theory of the case.

According to defendants, they were tourists who had been taking the baths at Hot Springs. Upon being advised by one McDonald that he had two cars to sell, they went to Pine Bluff, where the cars were, and, about midnight, after their arrival in Pine Bluff, they purchased the cars from McDonald and paid him for them, and then proceeded in the cars thus purchased to Little Rock, on their way back to Hot Springs. The presence of the articles stolen from the residence in one of the cars was admitted by the defendants, but was explained as having been inadvertently left in the car by McDonald, to whom they intended to return the package, which had been examined by them only casually, when they next saw him. That, upon their arrival in Little Rock, they sought to raise money on a diamond ring, for which Connell had paid between seven and eight hundred dollars in New Orleans, and, for this purpose, telephoned a negro man named Waddell, and made an appointment to meet Waddell at his house. The conversation in which the appointment was made occurred over the telephone, and Waddell inquired who they were, but, without revealing their identity, he was told that he would know them when he saw them, and so he did when they came to his house, about seven o'clock in the morning. Waddell was still in bed when they arrived, and they asked an advance on the ring, which Waddell did not make, but their suspicions were aroused by Waddell's conduct, and they began to suspect that he was delaying them for some purpose, and about that time a white man in citizen's clothes came to the house and looked in the window and said, "Hello, Rube!" (that being Waddell's given name), and, without knocking, this man and another white man, who was also dressed in citizen's clothes, entered the house, without invitation so to do. Thereafter, without disclosing that he was an officer, Hay walked over to Connell and took hold of his hand, whereupon Connell freed himself from the man, whom Connell regarded as his assailant, and sprang to the bed, about which time the shooting commenced, the first shot fired striking Connell in the leg, after which Connell commenced firing, and continued to do so until he had emptied his pistol, after which he ran from the room, Sullivan having preceded him, without firing a shot, by jumping through a window when the first shot was fired. The defendants testified that Connell fired only after he had been shot, and that he did so to protect himself from what he regarded as a murderous assault.

Upon the issues thus joined we think no error was committed in permitting testimony showing that the defendants committed the burglaries, nor that Connell had killed a man in Oklahoma, for the reason hereinafter stated, and that they were fugitives from justice. This testimony tended to prove motive, and had probative value in determining the issues of fact as to the circumstances of the killing. The court, in several instructions, told the jury that this testimony was admissible for the purpose only of showing motive for the killing, and we think it was admissible for that purpose. The brief of the Attorney General cites a number of cases decided by this as well as by other courts, holding such testimony admissible for the purpose of showing motive.

When the testimony of the chief of police of Sapulpa, Oklahoma, was offered, showing that Connell had killed a man in that city and had fled, counsel for Connell objected, and, on his objection being overruled, asked the suspension of the trial for sixty days in order that he might take testimony to establish an alibi, as Connell claimed to have been in Kansas City, Missouri, at the time that killing occurred. This request was not granted, and, on behalf of the State, it is insisted that the motion was taken under advisement by the court and was not again called up, and no formal ruling thereon was made or requested.

We consider it unimportant whether the record sustains this contention or not, for the following reasons: The trial resulted in a verdict of guilty of murder in the first degree, and both defendants were sentenced to death. They prayed and perfected an appeal, pending which Connell escaped, and was killed in the effort to recapture him. His appeal...