Whitehead v. State

• Decision Date: 13 December 1915
• Docket Number: (No. 54.)
• Citation: 181 S.W. 154
• Parties: WHITEHEAD v. STATE.
• Court: Arkansas Supreme Court

Page 154

181 S.W. 154

WHITEHEAD v. STATE.

(No. 54.)

Supreme Court of Arkansas.

December 13, 1915.

Dissenting Opinion January 10, 1916.

Appeal from Circuit Court, Lonoke County; Thos. C. Trimble, Judge.

P. D. Whitehead was convicted of manslaughter, and he appeals. Reversed and remanded.

J. M. Brice, of De Witt, and W. J. Waggoner, of Lonoke, for appellant. Wallace Davis, Atty. Gen., and Jno. P. Streepey, Asst. Atty. Gen., for the State.

SMITH, J.

Appellant was convicted under an indictment charging the commission of the crime of manslaughter alleged to have been committed by destroying a quick and unborn child, and that the act so committed was not necessary to save the life of the mother of the child. Appellant was indicted jointly with one Arthur Dawson, who was shown to have been the father of the child, and upon a severance Dawson was also convicted. The issues in this case and in the Dawson case are very similar and in many respects identical, and the opinion in that case sets out the facts fully. See 180 S. W. 761.

A number of errors are assigned as grounds for a new trial, but most of those assignments cover matters which are not likely to reappear upon a trial anew, or they are disposed of in the opinion in the Dawson Case, supra.

Among other points of difference, however, between the two cases is the insistence that the evidence is not sufficient to support the verdict for the reason that it fails to show the operation was not necessary to save the life of the mother, and that a proper instruction was not given on this subject. Cases might arise in which this question would become highly important and this failure of proof fatal to a conviction, but no such question arises here. If there is any truth whatever in the state's theory of the case the child was destroyed over the protest of its mother and for the sole reason that the putative father was unwilling for it to be born, for the alleged reason that he did not want to be disgraced by becoming the father of a bastard child. And the evidence on the part of the appellant is to the effect that he did not produce an abortion at all, and in the case of a contradiction of this character no error was committed in failing to charge the jury upon a question which, under the proof, was an abstract one.

The real question raised by this appeal is the action of the trial court in refusing to grant the prayer of appellant's petition for a change of venue. This petition alleged the existence of a prejudice in the minds of the inhabitants of that county which would prevent appellant from obtaining a fair and impartial trial therein, and was supported by the affidavits of eight qualified electors who were citizens of the county and not related to appellant. The court called and examined four of these affiants touching the source and extent of their information on the subject embraced in their affidavits. The appellant called three witnesses, who were not affiants, who gave evidence touching the truthfulness of the matter recited in the petition. The remaining four affiants were not called as witnesses and did not testify, nor was any evidence heard touching their credibility or qualifications under the statute to make the supporting affidavits.

The affidavits of these eight affiants appear to have been taken before the clerk of the court on the day the petition was heard, and there is no intimation in the record that they were not available as witnesses had the court desired to examine them for the purpose of passing upon their credibility.

The trial court exercises a judicial discretion in passing upon the credibility of the affiants, but its discretion is limited to that question. When the petition for change of venue is properly made and supported, the court has no discretion about granting the prayer thereof, whatever the opinion of the court may be as to its truthfulness. The statute provides no method by which the court may determine the credibility of the affiants, but leaves the question to the court. A number of cases, however, have approved the practice of calling the affiants and examining them as to the source and extent of their information for the purpose of ascertaining whether or not they have sworn falsely or recklessly without sufficient information as to the state of the mind of the inhabitants of the county as to the accused. But the cases also hold that the statute on this subject does not contemplate that the truth or falsity of the affidavits shall be inquired into, and that the only question for the determination of the court is whether or not the affiants are credible persons, and that all inquiry must be confined to that question. No requirement of the statute was met by the testimony of the three bystanders called by the appellant, and the court properly disregarded their evidence, as they testified in regard to the truthfulness of the recitals of the petition rather than as to the credibility of the affiants.

In the case of Latourette v. State, 91 Ark. 65, 120 S. W. 411, the supporting affiants were examined in open court and found not to be credible, whereupon the defendant "requested `permission to introduce four additional witnesses to corroborate the two witnesses who made the affidavit.'" The trial court denied this request, but stated to counsel, however, that if the proffered witnesses desired to make additional affidavits for a change of venue and would go upon the stand for examination they would be permitted to do so. This offer was refused, and the refusal of the court to hear these witnesses was assigned as error. In upholding the action of the trial court it was said:

"Now, the offer made by appellant's counsel was to introduce witnesses to corroborate the supporting affiants on the petition for change of venue. The language in which this offer is couched in its ordinary acceptation is understood to mean an offer to introduce evidence in corroboration of the testimony of the two witnesses. Understood in this way, the testimony was not relevant. The only issue before the court was that of the credibility of the two supporting affiants. It was not competent to go into the question of the truth or falsity of the statements of their affidavits. White v. State, 83 Ark. 36, 102 S. W. 715; Strong v. State, 85 Ark. 536, 109 S. W. 536, 14 Ann. Cas. 229. We find no error of the court in this respect."

There are cases where more than two affiants joined in the affidavit, and all but one of them were...