Venable v. State

• Decision Date: 22 January 1923
• Docket Number: 109
• Citation: 246 S.W. 860,156 Ark. 564
• Parties: VENABLE v. STATE
• Court: Arkansas Supreme Court

246 S.W. 860

156 Ark. 564

VENABLE v. STATE

No. 109

Supreme Court of Arkansas

January 22, 1923

Appeal from Boone Circuit Court; J. M. Shinn, Judge; affirmed.

Judgment affirmed.

Mitchell & Williams and Oscar W. Hudgins, for appellant.

J S. Utley, Attorney General, Elbert Godwin and W. T. Hammock, Assistants, for appellee.

OPINION

SMITH J.

Appellant was indicted for having conspired with certain other persons named in the indictment to commit a felony, to wit, to murder the present employees of the Missouri & North Arkansas Railroad, and that in furtherance of said conspiracy he did transport, and cause to be transported, into Boone County, Arkansas, large and unusual amounts of ammunition and firearms with which to carry said unlawful conspiracy into effect. Appellant was convicted, fined $ 100, and has appealed.

The first assignment of error is that the evidence is insufficient to support the verdict. The prosecution grew out of appellant's alleged connection with a strike which had been called against the M. & N. A. Railroad Company by its employees, who were members of different labor unions. Appellant had been employed as a conductor, and was a member and the secretary of the Order of Railway Conductors, which was one of the organizations whose members were out on the strike. It is insisted that there was no evidence of any trouble between the present employees of the railroad company and any of the strikers, and that there was no evidence of any attempt on the part of any striker to molest the present employees, and no proof of any agreement on the part of the strikers to kill any one.

It may be said that most of the proof offered which was admitted in evidence was admitted over the persistent objections of appellant. For instance, there was an objection, both general and special, on his part to the admission of testimony to show that there was a strike at all, or that he was a striker; and many of his objections to the admission of testimony were sustained, and but little testimony was admitted except over his objection.

Appellant was within his legal right in objecting to testimony, and the question of its sufficiency to support the verdict must, of course, be determined by a consideration of the testimony which was in fact admitted. But it is obvious that the significance and import of the circumstances which were admitted in evidence were fully appreciated, and cannot now be dismissed here as having been treated at the trial as trifles too unimportant to explain. Do the facts and circumstances admitted in evidence, with the inferences legally deducible therefrom, support the verdict? In the decision of that question we are required, of course, to give to these facts and circumstances their highest probative value in support of the jury's verdict.

The testimony may be summarized as follows: A strike on the M. & N. A. Railroad had been called on February 26, 1921, by certain unions of railroad employees. The Order of Railway Conductors, of which appellant was a member, was one of the labor unions participating in the strike. The strike was being conducted continuously and systematically, and the unions to which the strikers belonged were aiding them in promoting the strike. The strike centered around the city of Harrison, and quarters were rented in that city, where the strikers gathered for the exchange of views and for conference. This room was first in the O'Neal building, and the strikers repaired there to receive the strike benefits, which were paid at regular intervals by the labor unions. Appellant was in charge of this room for some months, but later moved his office to his home, where the strikers continued to visit him regularly.

On the night of June 26, 1922, Selby, Stevens and Barnett, who were indicted with appellant as co- conspirators, left Harrison and drove to Springfield, Missouri, where they arrived about sunup. After arriving in Springfield they went to a wholesale hardware store, where Selby represented himself as being engaged in the retail hardware business in Harrison. The salesman made out the bill, consisting principally of cartridges of different calibers, and amounting, at wholesale prices, to $ 37.62. After filling this order, Stevens directed the shipping clerk to add to the bill a thousand 12-guage shells, loaded with nitro power and No. 2 chilled shot. The wholesaler had only 750 shells of that kind in stock, and they were included in the bill. The price of the shotgun shells was $ 28.96, making the total bill $ 66.58. Stevens and Barnett were former employees of the railroad, and Selby ran in Harrison a small grocery store and "short-order" eating house. An offer was made to prove that he was a sympathizer of the strikers, but the court sustained an objection to that question.

It transpired that the salesman-manager of the wholesale store in Springfield was a stockholder in a hardware store in Harrison, and was advised of the tension there. His suspicions were aroused by the size and character of the order, as he knew that no game could be lawfully hunted at that season of the year which required shot of the size of those ordered. He also recognized Stevens as one of the strikers; so he called the sheriff at Harrison over the telephone and advised that officer of the purchase. The sheriff swore out a warrant for the parties, and went out upon the Springfield and Harrison road to a point which he knew the parties would have to pass on their return to Harrison, and he arrested them late in the afternoon at that place. The sheriff found two boxes of ammunition in the automobile, weighing about 150 pounds. The purchasers made no explanation of their possession of...