Vaughan v. State

• Decision Date: 13 January 1894
• Citation: 24 S.W. 885,58 Ark. 353
• Parties: VAUGHAN v. STATE
• Court: Arkansas Supreme Court

24 S.W. 885

58 Ark. 353

VAUGHAN v. STATE

Supreme Court of Arkansas

January 13, 1894

Appeal from Washington Circuit Court, EDWARD S. MCDANIEL, Judge.

STATEMENT BY THE COURT.

W. A Gage was assassinated at his home in Madison county September 26, 1891. He was fired upon by some one in ambush as he was returning to his house from his horse-lot, and instantly killed. Tracks leading to and from the place of the killing were discovered. Those leading away were made by a person in sock feet. Those leading up to where the assassin stood were made with shoes having plates or irons upon the heels. The shoes of one Thomas Hamilton were compared with the tracks, and found to fit exactly; also, beggar's lice and red dirt were found upon his socks, corresponding to dirt of the same description in the field of the deceased--the way the party doing the killing had gone.

Hamilton was indicted as principal; the appellant, Vaughan, as accessory. Vaughan was suspected and arrested on account of the bitter animosity which he was known to have had against Gage growing out of a lawsuit which had been pending for years between them. Vaughan had sued Gage for something between twenty-five hundred and three thousand dollars, and had been heard, at different times and places, and by various witnesses, to express great hatred towards Gage. Had said "that Gage had treated him very bad, or very mean; that it was very hard to bear; that there were two ways a man could get him to kill him,--one, in self defense; the other by treating him mean." Also," that if Gage beat him in his suit, he did not know what he would do; that he thought he would leave the State; had never been fooled so badly by any man in his life." And, again, "that he had decided in his mind that, if a man beat him out of his just rights, it would not do him any good; that there was old Andrew Gage, who owed him about twenty-five hundred dollars, and, if he beat him out of it, it should never do him any good." And, again, "that he sometimes thought that if it were not for his family, or Gage's family, before Gage should testify against him, he would take his gun and kill him." Other witnesses testified that appellant, after being arrested, and on his way to jail, when near deceased's house, fell off his mule, began crying, and said that he had just realized that he was charged with crime; that he regretted the thought of having to be taken among his old friends and neighbors, charged with killing as good a man as Mr. Gage." After Vaughan and Hamilton were lodged in jail, witnesses and letters were introduced to show that Vaughan endeavored to dissuade Hamilton from turning State's evidence, all of which will be set out fully in the opinion,

Hamilton, by an agreement with the States' attorney to the effect that he might plead to murder in the second degree, was permitted to testify. Omitting the details of the horrible crime, as given by him, his testimony was in substance: that he was in most distressed circumstances, his family sick, and he in want; that defendant Vaughan, at different times, when they were hunting together and on other occasions, talked to him about his trouble with Gage; said that Gage was going to swear him out of his money, if he was not removed, and that he wanted him, Hamilton, to do it, and would give him half Gage owed him, if he would kill Gage; said that Vaughan promised to let him have land to cultivate, furnish him a team, and give him all he could make; that he had nothing against Gage, but finally yielded to the requests of Vaughan, moved through his promises to pay him, and committed the deed, in the manner above described, with a double-barrel shot-gun furnished him by Vaughan. Said that Vaughan planned the way for him to do the killing, and said he, Vaughan, would be suspected, but that he could prove that he was not there, and that he, Hamilton, would not be suspected.

The defendant, on his own behalf, denied all the statements of Hamilton, introduced witnesses to show his good character, and that Hamilton had made statements at different times "that he, Vaughan, had nothing to do with the killing." The above, together with the facts set out in the opinion, constitute the substance of the evidence upon which the State asked conviction.

The jury returned a verdict of guilty, and the case is here by appeal from judgment of death pronounced upon the verdict.

Affirmed.

J. D. Walker for appellant.

1. The court erred in excusing the jurors Hailey and Dorman. Defendant's challenges were exhausted, and he should have had an opportunity of accepting these jurors.

2. No proper foundation was laid to admit the testimony of Thomas to prove what Hays had sworn to, and it was error to admit it. 33 Ark. 540.

3. It was not shown that Hays' presence could not be obtained, nor even that a subpoena was issued for him. Mansf. Dig. sec. 2149. Thomas did not testify that he could give the substance of the language of Hays on the former trial. It was not shown that Hays was sworn on the trial. See Gr. Ev. vol. 1, p. 240, and sec. 165 and notes; 42 Iowa 574; 18 Pick. 434; 11 Serg. and R. 149; 10 Ala. 260. A witness is not competent to prove the testimony of another unless he can state that he remembers the substance of all that was said, both on examination in chief and cross-examination. 11 Ala. 260; 63 Ga. 692; 42 Iowa 573; 43 id. 177; 39 Md. 149: 14 Allen (Mass.), 236; 18 N.H. 284; 4 Jones (N. C.), 526; 11 S. & R. (Pa.) 149; 97 Penn. St. 420; 30 Am. Rep. 813; 7 Baxter (Tenn.), 80; 21 Vt. 378.

4. The instructions in this case were argumentative. It was error to single out the witness Vaughan, and instruct the jury as to his credibility especially. See 84 Ill. 99; 85 id. 612; 13 Ill.App. 557; 115 Ill. 628. Nor should an instruction single out and give prominence to certain facts, ignoring other facts proved. 81 Ill. 478; 33 Mich. 143; 57 Mo. 138; 55 Mich. 139; 90 Ill. 612, 440.

5. The jurors were coerced into a verdict by the action of the court in directing them to retire after they had reported that they could not agree.

6. The eighth and tenth instructions given are not full enough, and were unfair to defendant. The corroboration should be as to matters material to the issue. Conduct that is susceptible of two opposite explanations is bound to be assumed to be moral rather than immoral. 70 Ill. 484; 32 Ark. 239; 13 Mo. 379; 123 Mass. 222; 25 Am. Rep. 81; 22 Pick. 397; 3 Rice on Ev. p. 513; 100 N.Y. 592; 44 Tex. 109; 9 Gray, 299; 10 id. 472; 12 Allen, 183; 110 Mass. 104; 111 Mass. 411. The instruction should have been that the accomplice must be corroborated as to material facts tending to connect defendant with the commission of the crime. 28 Hun, 589; Ib. 320; 53 N.Y. 474; 26 N.Y. 207; 55 N.Y. 645; 70 id. 38; 1 N. Y. Cr. Rep. 344.

7. It was error to limit counsel in his argument.

8. The prosecuting attorney's remarks in closing were prejudicial to appellant, and their effect was not removed from the minds of the jury.

9. It was error to subject the juror Dowell to another examination as to his relationship to defendant.

James P. Clarke, Attorney General, and Chas. T. Coleman for appellee.

1. It is within the sound discretion of the trial court to excuse a talesman for any ground deemed sufficient.A defendant has no legal right to any particular juror. 29 Ark. 7; 30 id. 343; 35 id. 639; 44 id. 117.

2. As a foundation for the admission of Thomas' testimony as to what Hays testified on a former trial, it was proven that Hays testified that he had since removed out of the jurisdiction, and that Thomas was present and heard his testimony. The objection that such testimony is in violation of art. 2, sec. 10, constitution, has been often overruled. 22 Ark. 372; 29 id. 17; 33 id. 539; 38 id. 304; 40 id. 461; 47 id. 180. In order to admit such testimony, it is not necessary that the witness should be able to state what was sworn to in ipsissimis verbis, but it is sufficient to state the substance. 4 T. R. 290; 18 Pick. 438; 1 Gr. Ev. (14 ed.) sec. 165; 1 Bish. Cr. Pr. sec. 1196; 10 Serg. & R. 16; 29 Ark. 17; 31 Ill.App. 394. The record states that Hays "testified," which includes the idea of an oath in legal form. Burrill, L. Dic.; Bouvier, Law Dic. No specific objection to Thomas' testimony was made on this ground below, and a general objection will not be considered as extending to any matter of form or question of regularity. 29 Ark. 17; 18 id. 392; 27 id. 377; 32 id. 319; 50 Mo. 126; 25 P. 816; 9 So. Rep. 274.

3. The instruction as to an accomplice and the corroboration necessary to convict follows the statute, and was approved in Vaughan v. State, 57 Ark. 1. Mansf. Dig. sec. 2259; 40 Ark. 484; 50 id. 544; 36 id. 117.

4. The twenty-third instruction is not objectionable on the ground that it singles out Vaughan, and instructs the jury as to his credibility. By act March 24, 1885, the defendant is made a competent witness in his own behalf. If he takes the stand, he is on the same footing as any other witness. 56 Ark. 7; 46 id. 141; 95 Ill. 407; 105 id. 414; 42 N.Y. 265. See also 49 Ill. 400; 19 Nev. 135; 16 id. 310; 34 Cal. 191; 60 id. 142; 60 Cal. 142; 54 Ark. 498.

Wood, J. BATTLE, J., dissenting. MANSFIELD, J., concurs with me in this opinion.

OPINION

Wood, J., (after stating the facts.)

Fully appreciating the importance of this case, and the consequences to the defendant of an affirmance of the judgment, we have given every assignment of error presented by this record our careful consideration. Some of them have been of easy solution, on account of the former adjudication of this court in this case upon the same questions, and by reason of the long and well established doctrine announced by it upon similar questions in other cases....