Valentine v. State
| Decision Date | 07 July 1913 |
| Citation | 159 S.W. 26 |
| Parties | VALENTINE v. STATE. |
| Court | Arkansas Supreme Court |
Appeal from Circuit Court, Jackson County; R. E. Jeffery, Judge.
C. J. Valentine was convicted of murder in the second degree, and he appeals. Affirmed.
On or about February 10, 1913, the appellant killed one Vernon Neely in Jackson county, Ark., at the home of Mollie Mays, about 9:30 o'clock in the evening. Vernon Neely arrived at Newport about 4 o'clock on the day of the killing. He went to Newport on the local train, and was accompanied by two other negroes, Hardley Taylor and Efford Allison. They came to Newport from Beebe. After they got to Newport they went to one of the saloons and drank some beer together. After this, and about the hour above stated, appellant went to the home of Mollie Mays, and into the room where Vernon Neely and some other negroes were congregated. The testimony shows that he punched Allison in the side with his gun, which was a 12-gauge, single-barrel shot-gun, and caused him to move out of his way. The deceased turned his head to see who had come into the room, and was shot underneath his right nostril, and instantly killed. The testimony tends to show that Neely made no hostile demonstration whatever towards the appellant. Allison attempted to knock the gun up, and thus prevent appellant from shooting Neely, but the gun fired before he struck it. There was testimony on behalf of appellant tending to prove that the deceased had been making threats against him because of the fact that appellant had been keeping company with one Ophelia Mays, a former sweetheart of the deceased. These threats were communicated to the appellant, and were to the effect that Neely had come to Newport to kill him. There was testimony tending to show that defendant went into the house in question not knowing that deceased was in there, that deceased slapped the girl claimed to be his sweetheart, looked at appellant, and started at him with a quick motion, drawing a knife, that appellant then presented the gun, and that the gun was knocked up by Efford Allison and discharged. The above is substantially the testimony on behalf of the state and of the appellant, upon which the appellant was tried on an indictment charging him with murder in the first degree and convicted of murder in the second degree, and sentenced to 21 years in the penitentiary.
C. J. Valentine, pro se. Wm. L. Moose, Atty. Gen., and Jno. P. Streepey, Asst. Atty. Gen., for the State.
WOOD, J. (after stating the facts as above).
Appellant filed a motion to vacate the order of court reciting waiver of arraignment and the entry of a plea, and the order setting the case for trial on a certain day, alleging that the appellant had no counsel to represent him at the time, and that he was therefore ignorant of the effect of the waiver of arraignment and the purported entry of the plea, and the setting of the case for hearing, etc. The record recites that "on this day comes the state of Arkansas by her attorney, C. M. Erwin, and comes said defendant in his own proper person, in custody of the sheriff of Jackson county, and by his attorneys, Phillips, Hillhouse & Boyce." The record itself refutes the motion of the appellant, and there is nothing to impeach the record. There is no sufficient showing to impeach the recitals of the record. Moreover, appellant is not shown to have been prejudiced by the matters set up in the motion, even if they were true. The matters complained of are matters proper to be shown in the record entries. The court did not err in overruling the motion to vacate.
The appellant moved to continue the case on account of the absence of witness Will Roddy, alleging that Roddy was present at the time Neely was killed, and would swear that Neely was advancing upon appellant in a threatening manner with a knife drawn. Appellant alleged that he had used due diligence to procure the attendance of the witness, and that the witness was not absent by the consent, procurement, or connivance of appellant; that the witness was within the jurisdiction of the court, and that appellant could procure his attendance at the next term. Appellant sets up, in addition to the formal grounds for a continuance, that he could not procure counsel to represent him, and that the counsel who did represent him were appointed by the court, and that they did not understand that they were to have the full responsibility of representing the defendant until Monday February 24, 1913, and that the cause was set down for trial on February 25, 1913; that his attorneys, therefore, had not had sufficient time to prepare for his defense; that they had not had time to subpœna witnesses, nor to consult with the witnesses, nor to consult with the defendant, with reference to his trial, in time to have the witnesses present that were necessary to his defense. When the motion for a continuance was filed, with its supporting affidavits, the court postponed the trial until March 5, 1913. The appellant then renewed the motion for a continuance, setting up substantially the same facts shown in his first motion. The sheriff, who had a subpœna for the absent witness, Will Roddy, testified that he had made an effort to serve him, and he had learned from his deputies and others that he was out of the state. He said he had used due diligence in trying to locate him ever since he had had the subpœna; that he did not go to the home of Will Roddy in Newport, nor to his usual place of abode, and did not know that Will Roddy was out of the state, but to the best of his knowledge he knew that he was not in Jackson county. Other witnesses testified that they were told by Will Roddy, after the killing, that he was going to Missouri. The court overruled the original motion for a continuance, and...
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