Terrell v. State

• Decision Date: 29 June 1901
• Citation: 64 S.W. 223,69 Ark. 449
• Parties: TERRELL v. STATE
• Court: Arkansas Supreme Court

64 S.W. 223

69 Ark. 449

TERRELL v. STATE

Supreme Court of Arkansas

June 29, 1901

Appeal from Pike Circuit Court WILL P. FEAZEL, Judge.

Judgment reversed and cause remanded.

J. O A. Bush, J. C. Pinnix and W. V. Tompkins, for appellant.

Alexander was not a qualified elector. Const. 1874, art. 2, § 10; 56 Ark. 404; 45 Ark. 165; Const. 1874, art. 3, § 1. Uncommunicated threats are admissible as part of res gestate. 16 Ark. 569; 29 Ark. 238; 34 Ark. 473; 18 Ga. 194. When the question as to the aggressor arises, proof of uncommunicated threats are admissible. 85 Ky. 77; 11 Ind. 557; 54 Ark. 603; 6 Baxt. (Tenn.) 493; 61 S.W. 918. The record must show that the jury were sworn. 42 Ark. 108; 34 Ark. 258; 37 Ark. 61; 45 Ark. 146. The record fails to show that the jury was instructed during recess. Sand. & H. Dig., §§ 2237 2219; 45 Ark. 146. It was error to refuse instruction as to good character of defendant. 35 Ark. 743.

G. W Murphy, for State.

The record recites that the jury was "duly sworn," which is sufficient. 29 Ark. 7; 34 Ark. 257. Failure to admonish the jury during recess is no error. 56 Ark. 515; 56 Ark. 4.

HUGHES J. RIDDICK and WOOD, JJ., dissent.

OPINION

HUGHES, J.

The appellant was indicted in the Pike circuit court for murder in the second degree, for the killing of Tom Bell by shooting him with a gun, etc. He was tried, convicted of murder in the second degree, and sentenced to eight years' confinement at hard labor in the state penitentiary. He filed a motion for a new trial, which was overruled, to which he excepted and appealed to this court. As we could not reverse the judgment for the want of evidence to support the verdict of the jury, we do not set out the testimony.

It is urged in the motion for new trial that the jury was not properly sworn to try the case. While it is not satisfactorily clear, whether they were sworn to try the case, or were sworn only as to their qualifications as jurors, we only mention this to prevent its occurrence again.

It was also made a ground of the motion that the court refused to give an instruction asked by the defendant, in approved form, defining reasonable doubt; the court having failed to give such an instruction. We think the instruction should have been given.

A juror, who was a justice of the peace, having been called and sworn touching his qualification as a juror, over the objection of the appellant for cause, based on the fact that he was a justice of the peace, was pronounced competent by the court, to which appellant excepted and peremptorily challenged the juror. The statute provides (Sand. & H. Dig., § 4302) that "whenever any juryman shall be presented for examination in impaneling any jury, it shall be a ground of peremptory challenge that said juror is a postmaster, justice of the peace or county officer." We construe this to mean that the fact that a justice of the peace is a juror is cause for challenge. Of course, any juror can be peremptorily challenged; and, unless the statute means that the fact that a juror is a justice of the peace is a disqualification, if the defendant desires to avail himself of the fact, then it is meaningless nonsense. Under the decision of Caldwell v. State, ante, p. 322, this is reversible error, the defendant having exhausted his peremptory challenges.

It is also urged that another juror was not a...