Vowell v. State
| Decision Date | 23 January 1904 |
| Citation | 78 S.W. 762,72 Ark. 158 |
| Parties | VOWELL v. STATE |
| Court | Arkansas Supreme Court |
Appeal from Greene Circuit Court, ALLEN HUGHES, Judge.
Affirmed.
Judgment affirmed.
L Hunter, J. D. Block and Lamb & Gautney, for appellant.
The court erred in excluding the evidence of Sudie Vowell and Pearl Keller, as to statements made by Russell Williams. The court also erred in not granting a new trial because of the incompetency of Kirby as a juror. 66 Ark. 53; 64 Mo. 358; 37 Mo. 347; 64 P. 356; 84 N.W. 541; 50 Mo. 309; 19 Oh. 198; 3 S.E. 377; 26 So. 985; 2 Bond. 147; 3 Scam. 412; 32 P. 166; 3 Dall. 515; 9 Cal. 299; 8 Ia. 477; 6 F. 844; 15 P. 182; 4 Oh St. 234; 1 Whart. Cr. Pl. & Pr. § 844; 1 Bish. Cr. Pr § 949.
George W. Murphy, Attorney General, for appellee.
The refusal to grant a new trial on account of Juror Kirby was not error. 40 Ark. 511; 13 Ark. 317; 20 Ark. 53; 44 Ark. 115; 57 Ark. 1.
This is an indictment for murder in the first degree, heard and determined on change of venue from the Western District of Clay county, in the Green circuit court, resulting in a verdict and judgment for murder in the first degree as charged.
The evidence in the case fully sustained the verdict of the jury, and the only defense on the facts was that the deceased had made threats against the life of the defendant, and that these threats had been communicated to the defendant before the killing. The jury had this question before them, and determined against the contention of the defendant. But it is objected by the defendant that the court erred in not admitting the offered testimony of Sudie Vowell, daughter-in-law, and another witness by the name of Keller.
Sudie Vowell offered to testify that "I was at Mart Vowell's house on Saturday after the killing, and saw Russell Williams there," and the following question was propounded to her: "Tell the jury whether or not, upon that occasion, Russell Williams, either in words or substance, stated that Allen Lovejoy [brother of deceased] had it in for, and was threatening to kill, because he, Russell Williams, had told Mart Vowell of the threats Lovejoy [the deceased] had made against him [Mart Vowell]; and, if he didn't look out, he [Russell Williams] would get him [Allen Lovejoy]." The court refused permission to the witness to answer this question. The only object to be obtained by the answer to this question was to show that on that occasion Russell Williams had thus made statements as to the threats made by the deceased against the defendant which were contradictory of his statements on the same subject made while on the witness stand.
This evidence was not offered to prove the threats, for it would have been inadmissible for that purpose, it being hearsay, but it was offered to impeach the testimony of Russell Williams. Had it been admitted, and had Williams thereby been thoroughly discredited in the minds of the jury, yet the evidence on the whole case is so manifestly in support of the jury's verdict that we cannot see how the verdict could have been affected in the least by it.
Another important question raised is with reference to the disqualification of G. W. Kirby, one of the jurors that tried the case. It appears from the affidavit of one Wyatt, filed with the motion for a new trial, that on the day of the trial, while the jury, of which Kirby was a member, were passing through the court house yard in a body and in charge of a deputy sheriff, they passed near the affiant and another man, and that Kirby left the other jurors and had a three-minute conversation with one Tom Simms, an outsider, but that said conversation was in such a low tone that affiant could not hear what was said; that when the deputy sheriff called Kirby back to the other jurors, said Simms followed him up and continued the conversation. In such case, where prejudice might arise, it devolves upon the state to show that the conversation was harmless and without prejudice. It was shown in this case that the subject of the conversation was a domestic matter, entirely foreign to the subject of the trial. This was a sufficient showing on the part of the state to remove the objection.
The next objection to the qualification of this juror was that having stated on his voir dire that he had not formed and expressed an opinion as to the guilt or...
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