Williams v. State

• Decision Date: 27 June 1891
• Citation: 16 S.W. 816
• Parties: WILLIAMS v. STATE.
• Court: Arkansas Supreme Court

Page 816

16 S.W. 816

WILLIAMS v. STATE.

Supreme Court of Arkansas.

June 27, 1891.

Appeal from circuit court, Jefferson county; JOHN M. ELLIOTT, Judge.

F. M. McGehee, for appellant. W. E. Atkinson, Atty. Gen., and Chas. T. Coleman, for the State.

MANSFIELD, J.

The appellant, Robert Williams, was indicted by a grand jury of Lincoln county for the murder of Albert Hayes. Upon his application, the venue of the cause was changed to the county of Jefferson, in the circuit court of which he was tried, and found guilty of murder in the first degree. He applied for a new trial; but the court denied his application, and pronounced judgment against him in accordance with the verdict of the jury.

The first of the various grounds on which the application for a new trial was made is that the court erred in overruling the defendant's motion to set aside the indictment. The Code of Criminal Procedure provides that a motion to set aside an indictment can only be made on the following grounds: "First, a substantial error in the summoning or formation of the grand jury; second, that some person other than the grand jurors was present before the grand jury when they finally acted upon the indictment; third, that the indictment was not found and presented as required by law." Mansf. Dig. § 2157. The defendant's motion does not appear to have been made in writing. But a record entry shows that he moved to set aside the indictment on the ground that E. S. Lee, J. J. Bowles, and Jarrett Johnson were the jury commissioners who selected the grand jurors and alternate grand jurors for the term to which the indictment was found, and that they selected themselves as alternate jurors, and two of them became members of the jury by which the defendant was indicted. The entry further states that the court overruled the motion, and that the defendant excepted. But the record is silent as to whether the facts stated in the motion were proved or admitted, and also as to the ground on which the court placed its ruling. For aught that appears to the contrary, the court may have found that the facts did not exist. Whether the conduct of the jury commissioners in the matter stated in the motion would, of itself, be "a substantial error," within the meaning of the first paragraph of section 2157, copied above, is therefore a question which this record fails to present for our decision. But it does not appear that the matter complained of could have been prejudicial to the defendant. The persons composing the grand jury by which he was indicted were placed upon the jury lists, as the record shows, before the death of Hayes, and none of them could therefore have been selected with the view of accusing any person of his murder. And, nothing appearing to the contrary, it must be presumed that E. S. Lee and John J. Bowles, who are shown to have been members of the grand jury, possessed all the intellectual, legal, and moral qualifications which the statute mentions as necessary to fit them for performing the duties incumbent upon that body. But in this connection we think it ought to be said that, if they are the same persons who acted as jury commissioners at the term of the court next before that at which this indictment was found, then it was an improper act on their part to place their names or permit them to be placed on either of the jury lists. The statute does not intend that jurors shall pass upon their own characters for "approved integrity, sound judgment, and reasonable information;" and it plainly intends, for obvious reasons, that the fact that a citizen has been selected for jury service shall remain unknown, alike to himself and the public until the lists are opened by the clerk at the time prescribed by law. Mansf. Dig. §§ 3978, 3982, 3983, 3985.

2. On the day on which the indictment against the defendant was set for trial in the Jefferson circuit court, he filed an exception to the transcript of the record and proceedings in the Lincoln circuit court, on the ground that it showed that Jarrett Johnson was on the list of grand jurors selected for the term at which the indictment was found, while the jury lists showed that he was on the lists of alternate grand jurors for that term. If the transcript was defective in this respect, and the defendant desired to have it amended, he should have applied to the court for a rule against the clerk for that purpose, or moved to have the record amended on certiorari. "A mere exception," however well founded, could accomplish nothing, unless the court took action for correcting the error upon its own motion. But we are unable to see how the defect in the transcript pointed out by the defendant could have operated to his prejudice, and it was not error to overrule the exception.

3. Before noticing the third ground of the motion for a new trial, it is necessary to state briefly some of the most important facts and circumstances of the case. As to the following, there was no conflict in the evidence: The deceased, Albert Hayes, was the pastor of a church of which the defendant was a member. They occupied houses separated by a distance of about 300 yards. A short time before the homicide the defendant's wife left him, and went to the house of her father. The defendant had stated to two of the witnesses that his wife's separation from him was due to the influence of Hayes, and in conversation with each of them he used towards Hayes language of a threatening nature. On the morning preceding the night on which the killing occurred, the defendant made to one of these witnesses a remark which, if it did not show an intention to take Hayes' life, indicated a purpose to inflict a violent injury upon his person, and to do so on that night. About 8 o'clock in the evening Hayes was shot and instantly killed while in the act of drawing a bucket of water from a well a few yards from his house. Rice, the sheriff of Lincoln county, was at his home near by, and was informed of the homicide a few minutes after it occurred. He went immediately to Hayes' house, carrying with him several trained dogs. The dogs followed the track of a man from a fence, near the body of Hayes, across a field, to the house in which the defendant lived. Rice went into the house, and, finding there a double-barreled shotgun belonging to the defendant, examined it in the latter's presence. One of its barrels bore all the usual marks of having just been discharged. The other was loaded. The defendant was then asked where he was when the shot which killed Hayes was fired. He replied that he was in bed and asleep. He pointed out his bed, and there was nothing in its condition to indicate that it had been occupied on that night. The wound of which Hayes died was inflicted with mixed shot, and near his body were found pieces of gun wadding made of bagging. Similar shot and wadding were found in the undischarged barrel of the defendant's gun. It was proved that the defendant was in the habit of using mixed shot, and that he had used wadding of the kind mentioned in loading his gun a few days before Hayes was killed. The tracks across the field were made in soft ground, and were plainly defined. They appeared to have been made by a person who was moving rapidly. The shoes worn by the defendant were placed in these tracks at different places, and exactly fitted them. Other facts tending to establish the guilt of the defendant were put in evidence; but their statement does not appear to be necessary to an understanding of any question to be decided.

The third ground of the motion is that the court erred in allowing Rice, who was sworn as a witness for the...