Van Camp v. State

• Decision Date: 16 October 1916
• Docket Number: 186
• Citation: 189 S.W. 173,125 Ark. 532
• Parties: VAN CAMP v. STATE
• Court: Arkansas Supreme Court

189 S.W. 173

125 Ark. 532

VAN CAMP v. STATE

No. 186

Supreme Court of Arkansas

October 16, 1916

Appeal from Garland Circuit Court; Scott Wood, Judge; affirmed.

Judgment affirmed.

M. S. & Arthur Cobb, for appellant.

1. The petition for change of venue should have been granted. The court abused its discretion in denying it. 36 Ark. 286; 54 Id. 243.

2. In the examination of Wm. Sumpter, the remarks of the court and its instruction were prejudicial. In making the statement and in its instruction, the court assumed facts which were solely for the consideration of the jury. 43 Ark. 289; 45 Id. 165; 53 Id. 381; 55 Id. 244; 58 Id. 108; 25 S.W. 282.

3. Testimony as to conversations had with John E. Jones relative to the transaction in the absence of appellant, was not admissible and prejudicial. It is useless to define res gestae or cite authorities.

4. It was error to permit the witness, Strite, to detail the rules of the Racing Association, and then refuse to let the witness say whether or not he relied on those rules to prove that he did not sell "Encore."

5. To constitute perjury, the swearing must be absolute, as well as false and material. Underhill on Ev., p. 761; Elliott on Ev Vol. 4, p. 385; 55 Ark. 529; 85 Id. 195. Instruction No. 2 given was erroneous.

6. Instruction No. 3 is inherently wrong. 53 Ark. 395. Corroboration of the falsity of the evidence is always required. 51 Ark. 138; 88 Id. 115; 53 Id 395; 77 Id. 455; 91 Id. 505.

7. The court erred in permitting evidence as to the value of the horses and in refusing instruction "A" asked by defendant. Also in refusing "B," etc.

8. The verdict is contrary to the evidence.

Wallace Davis, Attorney General, and Hamilton Moses, Assistant, for appellee.

1. The petition for a change of venue was properly overruled. No abuse of discretion is shown or appears. 98 Ark. 139; 76 Id. 279; 80 Id. 361; 107 Id. 30; 120 Id. 309.

2. There is no error in the court's charge. No. 2 is correct and No. 3 is copied from 53 Ark. 398; 88 Id. 117; 91 Id. 509. Strite was fully corroborated. 91 Ark. 509.

3. There was no error in the court's action on instructions 5a and 5b. 58 Ark. 353; 54 Id. 489. Courts are not required to repeat instructions already given. 101 Ark. 120; 101 Id. 569; 103 Id. 352.

4. There was no error in the admission of evidence. 43 Ark. 99; 88 Id. 579; 100 Id. 269. The conversations were intimately connected with the transaction; they emanated from the trade and were a part of the crime speaking for itself. 43 Ark. 99; 88 Id. 579; 100 Id 269. As to the Racing Rules, appellant can not complain. The explanation was drawn from the witness on cross-examination.

5. There was no error in the form of the verdict. 96 Ark. 196; 95 Id. 168; 76 Id. 550. The objection can not be raised for the first time on appeal. 26 Ark. 536; 28 Id. 188.

6. The verdict was responsive to the testimony. The State fully substantiated every charge in the indictment and proved every material ingredient of perjury.

OPINION

MCCULLOCH, C. J.

This is an appeal from a judgment of the circuit court of Garland County convicting appellant of the crime of perjury, which said offense was alleged in the indictment to have been committed by false swearing in a civil suit tried in the Garland Circuit Court Wherein appellant Van Camp was plaintiff, and J. T. Strite and A. L. Valentine were defendants.

Strite and Valentine were the owners of four horses said to be racers, and they brought their horses to the city of Hot Springs to attend races held there in the month of March, 1916. Appellant and one Jones resided in Hot Springs, and they applied to Strite and Valentine to get them badges which would pass them to the race track so that they could encourage betting. During the progress of the races, negotiations were opened up by appellant and Jones with Strite and Valentine for the purchase of the horses, and an agreement was finally reached for the sale of the horses or some of them to appellant and Jones. There is a conflict in the testimony concerning the terms of the sale. Strite and Valentine testified that they agreed to sell only three of the horses, named, respectively, Envy, Cooster and Cherry Seed, and that the other horse, named Encore, was not to be included in the trade. They also testified that only the horses were to be sold, and none of the racing equipments or the covers or bridles or saddles were to be included. Appellant and Jones both testified that the sale was to include all four of the horses and the blankets, saddles and bridles and other equipments. The price agreed upon was $ 1,500, and there is no dispute about that.

It appears from the testimony that the terms of the trade were finally agreed upon on a certain evening, and that appellant was to prepare the bill of sale, and the parties were to meet the next morning for the purpose of consummating the sale. They met the next morning and in the meantime appellant bad prepared the bill of sale, which Strite and Valentine read over carefully, and they testify that the writing did not include the name of the horse Encore or the other property, except the names of the other three horses. According to the testimony of Strite and Valentine, Jones left the parties to go to one of the banks to get the remainder of the money he needed to make the payment of $ 1,500, and on his return they repaired to the office of a justice of the peace, and when they reached there, Strite and Valentine signed the instrument, and their signatures were witnessed by the justice of the peace and a constable who happened to be present.

There is a sharp conflict in the testimony as to what occurred immediately afterward concerning the payment of the money. Strite and Valentine both testified that as soon as the bill of sale was signed, appellant picked it up and left the room; that Jones ran his hand into his pocket and walked into the next room, and when Valentine and Strite followed him Jones remarked that Van Camp wanted a commission for selling the horses; that they refused to allow any commission, and that Jones refused to pay the money except in the presence of appellant. Each of these men testified that the agreed purchase price was not paid then or at any other time. On the other hand, appellant and Jones each testified that the money was handed over to Strite and Valentine in the office of the justice of the peace, and that that ended the transaction. The bill of sale as exhibited at the trial shows that the horse Encore and the blankets, bridles, saddles, etc., were included therein, but Strite and Valentine testified that those things were not in the bill of sale at the time it was signed. The testimony of the justice of the peace and constable to some extent corroborates the testimony of appellant and Jones, but they do not swear positively that the money was actually paid over in the office or that the writing included the horse Encore or the other items in dispute. Strite and Valentine testified that after making considerable effort, without success, to get appellant and Jones together so that they could get the money, they went out to the race track where the horses were, and that later appellant came out there with an officer and tried to get the horses. They refused to give up the horses and a replevin suit was brought in the name of appellant.

In the trial of that cause in the circuit court, appellant testified as a witness and his testimony was substantially the same as that given in the trial of the present case. He testified in both trials that the horse Encore and the blankets, saddles, bridles, etc., were included in the trade and were described in the bill of sale, and that the price, $ 1,500, was paid in the office of the justice of the peace. The charge of perjury set forth in the indictment is predicated on the testimony given in the trial of the civil case which is alleged to be false. There is little, if any, controversy as to the substance of the testimony given by appellant in the trial of the civil case, the real controversy being over the question of the truth or falsity of that testimony concerning the alleged sale of the horses.

Appellant filed a petition for a change of venue, supported by the affidavits of three persons, all of whom were examined in open court except one. We must, of course, treat the one who was not examined as being a credible person (Whitehead v. State, 121 Ark. 390, 181 S.W. 154), and the testimony must be reviewed in order to determine whether or not the court abused its discretion in finding that none of the other affiants were credible persons within the meaning of the statute. The trial court is, of course, in better position than we are to determine a question of this sort, and it has been the invariable rule here to uphold the trial court's exercise of discretion in such matters unless an abuse thereof has been shown. All of the affiants were examined at considerable length concerning their knowledge of the state of feeling toward appellant, and it was shown that many of the witnesses had but little, if any, knowledge of the feeling outside of the city of Hot Springs. Of course, it is easy to see that there was no abuse of discretion by the court in holding that those persons were not credible within the meaning of the statute. Several of the affiants, however, showed a knowledge to some extent outside of the city of Hot Springs. When the fact is considered that the transaction, out of which the civil action arose, occurred less than a month before the trial of the present case, thereby giving very little time for the incident to become sufficiently notorious to arouse the prejudice of the inhabitants of the whole county to the extent that a fair and impartial trial could not...