Webb v. State
| Decision Date | 29 May 1922 |
| Docket Number | (No. 19.) |
| Citation | 242 S.W. 380 |
| Parties | WEBB v. STATE. |
| Court | Arkansas Supreme Court |
Appeal from Circuit Court, Lafayette County; Geo. R. Haynie, Judge.
Bill Webb was convicted of murder in the first degree, and he appeals. Sentence reduced to imprisonment for life unless Attorney General elects to have judgment reversed and remanded for a new trial.
D. L. Purkins, of Hope, and A. H. Hamiter, of Lewisville, for appellant.
J. S. Utley, Atty. Gen., and Elbert Godwin and W. T. Hammock, Asst. Attys. Gen., for the State.
Appellant was indicted by the grand jury of Lafayette county for the crime of murder in the first degree, and, on the trial of the case, the jury rendered a verdict finding appellant guilty of murder in the first degree, as charged in the indictment, and judgment was rendered on the verdict for the imposition of the punishment of electrocution.
Appellant is a negro, and the charge against him is the killing of another negro named Elmond Green by striking him with a gun barrel. The killing occurred at night near the home of a negro woman named Mary Ford, where there was a small social gathering attended by a small party of negroes of both sexes.
Green and one of Mary Ford's daughters, Leona, decided to attend a social gathering at another place and went out in front of Mary Ford's house to get in Green's buggy. The girl testified that, after she got into the buggy, Green walked around to unhitch the horse and that she heard the sound of blows, and thinking that Green was striking the horse, she called to Rufus Huie, another negro, who was standing on the porch, to come out and make Green stop beating the horse. Huie ran out and when he reached the place he discovered that appellant had been striking Green. When Huie ran out there, appellant commanded him to stand back and threatened to shoot. Another witness says he heard Huie state, after he had gone out to the place of the killing, that "Bill Webb has killed Elmond," and that appellant exclaimed: "God damn you, this is Mr. Bill Webb to-night." A pair of gun barrels were found at the spot, with blood on the breech end.
The evidence tends to show that appellant was secreted in the bushes near the place where Green's horse was hitched, and that he was lying in wait for Green. There is other evidence which establishes the fact that appellant and his wife had separated and that there was some trouble between them on account of Green's attention to appellant's wife.
Appellant himself testified that he went to Mary Ford's house that night to pay a small sum of money that he owed to one Nesbit, and that, when he got near the house, he heard a conversation between Green and his (appellant's) wife, and heard Green threaten to whip her, when he (appellant) interposed, and that Green then thrust his hand in his bosom as if to draw a weapon. Appellant testified that he did not strike Green with a gun barrel, but struck him with a stick.
The evidence was sufficient to sustain the verdict for murder in the first degree. The evidence tends to show that appellant was lying in wait and that he struck the deadly blows with the gun barrel, and did so without any provocation, with malice aforethought, and after deliberation.
Appellant introduced as a witness A. B. Knight, a white man, in whose family appellant's wife was cooking, for the purpose of proving that appellant and his wife had not separated, but were on good terms, and that appellant visited his wife frequently at the home of witness. On cross-examination, the prosecuting attorney drew out from witness Knight that prior to that time he had paid a fine for appellant upon the conviction of the latter for resisting an officer. On redirect examination, appellant's counsel re-examined Mr. Knight on that subject and had him state the occasion and the person with whom appellant was having a difficulty when he resisted an officer. There was no objection made to this testimony of Mr. Knight.
Appellant testified in his own behalf, and, on cross-examination, the prosecuting attorney was permitted to interrogate appellant, over the objection of his counsel, concerning his conviction of the offense of resisting an officer. The court overruled the objection, and appellant testified concerning the circumstances under which he resisted the officer. Appellant admitted that he had entered a plea of guilty, but his explanation of the incident was to the effect that his conduct on the occasion named did not amount to resisting an officer. The ruling of the court on this subject is now assigned as error.
We have often held that a defendant may, on cross-examination, be interrogated concerning any of his past conduct which might affect his credibility as a witness. It is unnecessary to determine whether or not the present instance comes within that rule, for appellant's own statement was more favorable to himself than the other witness Mr. Knight, who did not pretend to detail the exculpating circumstances attending the alleged offense of resisting an officer, but merely stated that appellant had been convicted, and that he (witness) had paid the fine. This testimony went in without objection, and we cannot see that it added anything prejudicial to appellant to permit him to make an explanation of the circumstances according to his own version of them. Appellant did not ask for the exclusion of Knight's testimony, and, as before stated, we cannot see that his own testimony would make any more unfavorable impression than that made by the testimony of Knight.
We conclude, therefore, that there was no prejudice in this ruling of the court, without deciding whether or not it was competent to draw out from appellant on cross-examination the fact that he had been guilty of the crime of resisting an officer, an offense which might or might not involve moral turpitude, so as to affect the credibility of the witness.
The form of the verdict rendered by the jury was as follows:
And, as before stated, the court rendered judgment for the extreme penalty of electrocution. There is a statute fixing the punishment for murder in the first degree at electrocution, but there is another statute which reads as follows:
"The jury shall have the right in all cases where the punishment is now death by law, to render a verdict of life imprisonment in the state penitentiary at hard labor." Crawford & Moses' Digest, § 3206.
We have decided that the statute just quoted did not repeal the old statute fixing the penalty at electrocution, but merely gave the power to the jury to reduce the punishment to life imprisonment, and that a verdict finding the defendant guilty of that crime, without fixing the punishment at imprisonment, called for a judgment for the extreme penalty of electrocution. Kelley v. State, 133 Ark. 261, 202 S. W. 49.
In the present case it appears from the record that the court did not instruct the jury as to the form of the verdict and was not asked to do so. It is now contended by appellant's counsel that it was error for the court to fail to give such an instruction, informing the jury that it was within their power to reduce the punishment to life imprisonment, and that an order ought to be entered here reducing the punishment in order to eliminate the error.
We have steadily adhered to the rule that it is not error for a trial court to fall to give an instruction on a given subject unless the court is requested to do so. Allison v. State, 74 Ark. 444, 86 S. W. 409; Scott v. State, 77 Ark. 455, 92 S. W. 241; Mabry v. State, 80 Ark. 345, 97 S. W. 285; Hobbs v. State, 86 Ark. 360, 111 S. W. 264; Snyder v. State, 86 Ark. 456, 111 S. W. 465; Ray v. State, 102 Ark. 594, 145 S. W. 881. We have applied this rule in cases where the court had failed to give instructions on the lower degrees of homicide. There is nothing in the statutes of this state which requires a court to give instructions, unless requested by the parties to do so. The only statute on the subject reads as follows:
"When the evidence is concluded the court shall, on motion of either party, instruct the jury on the law applicable to the case." Crawford & Moses' Digest, § 3179.
We perceive no reason why the rule announced above should not be applied to the failure of the court to give an instruction concerning the power of the jury to reduce the punishment for murder in the first degree to life imprisonment. It rests upon the same principle as the failure to give any other instruction of law applicable to the issues involved in the trial. We believe it to be good practice for the court in all murder cases to inform the trial jury that they have the power to fix the punishment at life imprisonment, but there is no error in the court's failure to do so unless attention is called to it by a request for an instruction on that subject.
Affirmed.
The majority opinion relies for its support upon the rule that it is not error for a trial court to fail to give an instruction on a given point unless requested. I dissent, on the ground that this rule can have no application to the matter of instructing as to the punishment in capital cases.
Section 3205 of Crawford & Moses' Digest provides that the jury shall in all cases of murder, on conviction of the accused, find by...
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Burns v. State
... ... The language of the act makes ... the punishment a part of the verdict. The statute gives the jury, and not the court, the right to reduce the punishment. The fixing of the punishment must necessarily, then, be a part of the verdict. See Webb v. State (Ark.) 242 S. W. 380 ... The indictment in this case was for murder in the first degree. It is true that the indictment contained a charge of all the lesser degrees of homicide, but the jury could only fix the punishment at imprisonment for life in the state penitentiary ... ...