Vaughan v. State

• Decision Date: 03 December 1892
• Parties: VAUGHAN v. STATE
• Court: Arkansas Supreme Court

20 S.W. 588

57 Ark. 1

VAUGHAN v. STATE

Supreme Court of Arkansas

December 3, 1892

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

Samuel F. Vaughan was indicted in the Madison circuit court as accessory before the fact to the murder of W. A. Gage alleged to have been committed by Thomas Hamilton. On March 17th, 1892, the cause was set for trial on April 18th, 1892 and on March 18th the court adjourned until April 18th. On the day set for trial defendant objected to any proceedings being taken or order made in the cause, for the reason that the circuit court of Madison county began on the first Monday in March, 1892, and by the laws of the State of Arkansas was entitled to two weeks, at the end of which time the circuit court of Benton county on the third Monday in March, the 21st day of that month, commenced, and was entitled to the whole of the time until the 25th of April, when the Washington circuit court was entitled by law to commence; that the circuit court of Benton county had not finally adjourned, and that the day on which the case was called and the other days of that week were a part of the time belonging to the circuit court of Benton county, and that there was still unfinished business pending and undisposed of in that court, and that the circuit court of Benton county had adjourned over until the 30th day of May, 1892, to try and dispose of such unfinished business. All of which facts were admitted by the State and by the court stated to exist. The court overruled the objections and ordered the cause to progress. Thereupon on defendant's application, a change of venue was taken to Washington circuit court.

H. F Berry testified that, on the day after the killing, he went to Gage's house and saw tracks leading to and from the place of the killing. He says: "Hamilton was arrested and brought over to Gage's. I saw shoe tracks in the orchard east of the house. The tracks were made with a shoe that had heel irons on it. Saw tracks in the lane and where the killing was done. The tracks leading off from the scene of the killing were of a person in sock feet. We followed the tracks for about one-half mile. The shoe tracks fit Hamilton's shoes. Hamilton was with us at the time of the tracking. Hamilton's foot was set in the track. His foot fit the track. There was red dirt on Hamilton's socks and beggar's lice on his socks, corresponding to the red dirt and beggar's lice in Gage's field. Hamilton showed us where he got over the fence and where he stood at the time of the shooting."

Hamilton testified that he killed deceased; that defendant promised him a certain sum of money if he would kill him, and procured for him the gun with which the killing was done. He testified that no inducements were offered him to testify in the cause; that he left it to his attorneys to do the best they could for him, and they told him they had agreed for him to testify. Hamilton's attorneys testified that the whole matter was left to them to do the best they could for Hamilton, and that they made an agreement with the prosecuting attorney that Hamilton should testify, provided he would be permitted to plead guilty to murder in the second degree.

The court instructed the jury as follows:

"You are instructed that the witness, Thomas Hamilton, is an accomplice, and that a conviction of the defendant cannot be had upon his testimony unless corroborated by other evidence tending to connect the defendant, Vaughan, with the commission of the offense of the murder of Gage set forth in the indictment, and the corroboration is not sufficient if it merely shows that the offence was committed, and the circumstances thereof; and if such corroboration does not appear in the testimony, you should acquit. But if you find from the evidence that the testimony of witness, Thomas Hamilton, has been corroborated by the evidence as above indicated, and if such corroboration, considered in connection with said Thomas Hamilton's testimony and all other facts and circumstances in proof in this cause, satisfies your minds of the guilt of the defendant beyond a reasonable doubt, you should convict."

Defendant excepted generally to the giving of the above instruction.

The court refused a request of the defendant to charge the jury as follows: "To authorize a conviction on circumstantial evidence alone, it is not enough that all the circumstances proved may be consistent with and point to the guilt of the defendant, but to authorize a conviction the circumstances must not only be in harmony with the guilt of the accused, but they must be of such a character that they cannot reasonably be true in the ordinary nature of things and the defendant be innocent."

The jury returned a verdict of guilty of murder in the first degree. A motion for a new trial, the grounds of which are stated in the opinion, was filed and overruled. Defendant has appealed.

Judgment reversed and cause remanded.

J. D. Walker for appellant.

1. The special session of the Madison circuit court interfered with the business of the Benton circuit court, and was therefore held contrary to law. Mansf. Dig. secs. 1373, 1476-7, 1481; 32 Ark. 278.

2. The testimony of Berry that "Hamilton showed us where he got over the fence and where he stood at the time of the shooting" was inadmissible.

3. It was error to instruct the jury "that Hamilton is an accomplice."

4. The court erred in refusing the instructions asked as to circumstantial evidence. 14 Gray (Mass.), 55.

5. Hamilton was incompetent to testify; there being an agreement or arrangement by which he was to be allowed to plead guilty of murder in the second degree. 13 S.W. 838.

6. There was undue influence used upon the jury.

W. E. Atkinson, Attorney General, and Charles T. Coleman for appellee.

1. The adjourned session of the Madison circuit court was legally held. Mansf. Dig. sec. 1476; 32 Ark. 278; 39 id. 448; 21 N.E. 751.

2. The statement of Berry was admissible. Defendant was indicted as accessory before the fact, and the guilt of Hamilton was a material fact to be established by the prosecution, and must be proved by competent testimony. 33 N.H. 224; Whart. Cr. Ev. sec. 702; 37 Ark. 83.

3. There was no interference with the province of the jury, if the whole charge of the court is considered. 52 Ark. 180.

4. Hamilton was a competent witness, and his evidence subject to the same rules and tests as that of other witnesses. 25 Ark. 96; Cr. Code, sec. 240; 1 Roscoe, Cr. Ev. 201 n.; 80 Ky. 349; 81 id. 250.

5. The instructions as to circumstantial evidence properly refused. 15 S.W. 411, 823; 49 Cal. 577; 67 Ga. 570.

6. The agreement that Hamilton would be allowed to plead guilty of murder in the second degree did not render him incompetent. 1 Hale (P. C.), 304, 305; 12 How. St. Tr. 1454; 1 Gr. Ev. (14th ed.), sec. 379; 1 Bish. Cr. Pr. sec. 1161; 28 Ark. 123. An inducement to testify by an offer of immunity only goes to the credibility of the witness. 44 F. 921; 1 Gr. Ev. (14 ed.), sec. 380; 1 Roscoe, Cr. Ev. 200; 59 Wis. 471; 11 Neb. 1.

7. It is not alleged that the undue influence was from any misconduct in the jury or in the officer having charge of the jury, and it was incumbent on the party complaining to show that the jury were in fact influenced to his prejudice.

8. The applause is not shown to have influenced the jury to defendant's prejudice. 29 Tex.App. 309; 15 S.E. 748; 46 Alb. L. J. 342; 78 N.C. 564; 64 Iowa 721. The fact that the audience applauded remarks of the prosecuting attorney, when the applause was promptly repressed and rebuked by the court, is not ground for reversal where it is not shown that the jury were influenced prejudicially to the defendant. 29 Tex.App. 309.

OPINION

COCKRILL, C. J.

The appellant was indicted as accessory before the fact to murder in the first degree. He was convicted and sentenced to be hung. His motion for a new trial assigns numerous grounds for the reversal of the judgment.

1. One of the grounds assigned for new trial and argued here is that the judgment should be reversed because of improper influence brought to bear upon the jury to obtain a verdict. It is said that the evidence of this influence is reached from two distinct sources: first, that it is found in a certificate of the executive and ministerial officers of the court, which is embodied in the bill of exceptions, showing that when the final argument of the State's attorney in prosecuting the case against the appellant was concluded, it was followed by "loud, general and continuous applause for some moments by the citizens of Washington and Madison counties," who filled the court house to its full capacity at the trial; and second, that it is found in the affidavit of J. W. Walker, which was considered by the court upon the application for a new trial. This affidavit is to the effect that the cause was submitted to the jury on Saturday, and that they brought in no verdict on that day; that on Sunday they were given the liberty of the court room, the doors and windows of which stood open; that some of the jurors left the court room and remained some upon the north and some upon the south porch of the court house; that divers citizens of Washington and Madison counties were in the court house yard, within fifteen or eighteen feet of the jurors, excitedly discussing the merits of the case against the appellant; that the affiant, who was one of the attorneys for the appellant, sought the trial judge, and reported these facts to him, but that thereafter "the crowd remained within fifteen or eighteen feet of the jurors who were trying the case, excitedly discussing the case and insisting upon the guilt of the defendant, Vaughan; and that this was kept up for hours after the...