Vasser v. State

• Decision Date: 13 May 1905
• Citation: 87 S.W. 635
• Parties: VASSER v. STATE.
• Court: Arkansas Supreme Court

87 S.W. 635

VASSER v. STATE.

Supreme Court of Arkansas.

May 13, 1905.

Appeal from Circuit Court, Sevier County; James S. Steel, Judge.

R. R. Vasser was convicted of murder in the second degree, and appeals. Affirmed.

The following are the instructions given for the state, referred to in the opinion:

"(9) Even if the jury should find from the evidence beyond a reasonable doubt that the deceased, John Forshee, was killed at the time and place in question, and that the said defendant, R. R. Vasser, was present at the time of such killing, and that such killing was murder, still if you are not satisfied from the evidence beyond a reasonable doubt that the said R. R. Vasser was previously aware of the purpose to commit such murder, or that he in some way aided, abetted, or assisted in the killing, or advised or encouraged it, then you should find R. R. Vasser not guilty.

"(10) The court instructs the jury that the mere fact of one person being present at the time the shooting occurred, and the further fact that he follows along after the party doing the shooting, are not of themselves sufficient to convict the party following of aiding and abetting in the shooting; but before you can find that the defendant was aiding and abetting in the shooting, you must find that he was acting in concert with those committing the crime, and actually participating in some manner in the shooting."

The following are the instructions given for defendant, referred to in the opinion:

"(3) The court instructs the jury that if you believe from the evidence beyond a reasonable doubt that the defendant, in connection with Tom Taylor, Will Taylor, and Arthur Taylor, willfully, deliberately, and maliciously, and after premeditation and deliberation, killed John Forshee, the defendant would be guilty of murder, and the time when the intent to take life was formed was not material. All that is necessary in order to sustain a conviction of murder in the first degree is that it be shown from the facts and circumstances, beyond a reasonable doubt, the design and intent to take the life of the deceased was formed in the minds as the result of premeditation by defendant before the act of the killing."

"(5) The court instructs the jury that if they believe from the evidence beyond a reasonable doubt that the defendant, R. R. Vasser, in connection with Tom Taylor, Will Taylor, and Arthur Taylor, killed John Forshee, and that the defendant participated, aiding or assisting, in the killing of John Forshee, it will not be necessary, in order to convict the defendant, for the state to prove that he fired any shot or shots that resulted in the death of the deceased; and if you believe from the evidence beyond a reasonable doubt that he was present, aiding, abetting, and assisting, he would be as guilty as though he had fired the fatal shot."

R. R. Vasser was jointly indicted at the January term, 1904, of the Sevier circuit court, with Will Taylor and others, for murder in the first degree, for the killing of one John Forshee. Appellant severed, was tried, convicted of murder in the second degree, and sentenced to five years in the penitentiary.

The proof tended to show that appellant and others killed John and Dave Forshee. John Forshee fell on or near the place where the shooting began. Dave ran some distance, and was pursued and fired upon until he was killed. The facts are set forth in Taylor v. State (MS. opinion) 82 S. W. 495.

The grounds of the motion for new trial urged here are:

(4) The court erred in overruling the motion in arrest of judgment filed in this case.

(6) The court erred in allowing the witness, Alex Little, to testify to the acts of other parties than defendant in shooting at Dave Forshee after John Forshee had fallen.

(7) Because of the following remark of the court: "I will not allow a witness to be contradicted by a statement drawn up by one of the attorneys on one side, where the others are not present. It is a departure from our practice."

(8) Because the court stated in the presence of the jury: "Mr. Little is a reasonable man. He will give it [the written statement] to you when it becomes necessary. Let him keep it awhile."

(15) Because of the following remarks of the prosecuting attorney, to wit: "Why didn't he prove to Mr. Thomas that he was innocent? Did he ever claim that he was innocent? This thing was deliberated, premeditated, and concocted at De Queen, Arkansas."

(16) Because the court erred in remarking, in the presence of the jury, when J. D. Head, counsel for defendant, excepted to the court's giving the jury an oral instruction, as follows: "All right, I withdraw the remark. I did not think about you being in the case, or I would not have done it."

From 17 to No. 28, inclusive, are exceptions to the 12 instructions given at the request of the state.

No. 32 is as follows: Because, after the jury had retired to consider of their verdict, the bailiff in charge of the jury allowed the said jury to go out upon the ground where the shooting took place, and view the character thereof, without the consent of the defendant, and when said defendant was not present, either in person or by attorney.

Scott & Head and Otis T. Wingo, for appellant. Robert L. Rogers, Atty. Gen., for the State.

WOOD, J. (after stating the facts).

Treating the assignments of error in the order named:

First. It is contended that the indictment fails to specifically allege that the shooting was done with the intent to kill deceased. The indictment charges "T. G. Taylor, Will Taylor. Arthur Taylor, and R. R. Vasser of the crime of murder in the first degree, committed as follows, to wit: The said defendants, in the county and state aforesaid, on the 19th day of January, A. D. 1904, did unlawfully, willfully, feloniously, and of his malice aforethought, and after deliberation and premeditation, kill and murder one John Forshee," etc. The indictment is sufficient. Green v. State, 71 Ark. 150, 71 S. W. 665; La Rue v. State, 64 Ark. 144, 41 S. W. 53; Hamilton v. State, 62 Ark. 543; Jones v. State, 61 Ark. 88, 32 S. W. 81.

Second. It was not error to permit testimony as to the acts of other parties in shooting at Dave Forshee after John had fallen. The killing of John and Dave Forshee was one continuous transaction. The death of each was so near in time and place as to constitute but one rencounter. It was impossible to properly develop the case as to the killing of one without proof of the killing of the other. The testimony on the part of the state justified the court in proceeding in the trial upon the theory that the killing of both the Forshees was part of one plan, carried out by the appellant and the Taylor boys at one and the same time, in one continuous difficulty, which ended only when both John and Dave Forshee had fallen from the shots of appellant and his confederates. Taylor v. State, supra.

Third. The remarks of the court: "Mr. Little is a reasonable man. He will give it [speaking of a written instrument] to you when it becomes necessary. Let him keep it awhile"—were not prejudicial to appellant. These remarks, it appears, were elicited by an effort on the part of one of the attorneys for appellant to have the witness Little, while on the witness stand, to turn over to him a certain written statement, which purported to be a statement which the witness had written, or the attorney had written for him, a day or so before, not in the presence of the court or the attorneys for the other side. The court very properly held that the statement had no place in the case for any purpose. Upon the insistence of one of the attorneys for appellant that this statement be turned over to him, and the refusal of the witness to do so, the court remarked that he was not going to force the witness to let the attorney have the paper; that "Mr. Little is a reasonable man. He will give it to you when necessary," etc. These remarks were not germane to the ruling of the court in excluding the improper paper, and the court might have refrained from interposing in the controversy between the witness and the attorney as to the surrender of the paper without any remark upon the character of the witness upon the stand. But, as it is evident that these...