Williams v. State

• Decision Date: 06 March 1897
• Citation: 39 S.W. 709
• Parties: WILLIAMS v. STATE.
• Court: Arkansas Supreme Court

Page 709

39 S.W. 709

WILLIAMS v. STATE.

Supreme Court of Arkansas.

March 6, 1897.

Appeal from circuit court, St. Francis county; N. Hutton, Judge.

Bill Williams was convicted of murder, and appeals. Reversed.

John Gatling and N. W. Norton, for appellant. E. B. Kinsworthy, Atty. Gen., for the State.

BUNN, C. J.

This is an indictment for murder in the first degree, found by the grand jury at the March term, 1896, of the St. Francis circuit court, and tried and determined at the September term, 1896. The trial resulted in the conviction of the defendant of murder in the first degree as charged, and judgment, and in due course defendant appealed.

To the indictment defendant interposed a demurrer, and the same was overruled by the court, and exceptions were taken and noted. The crime was committed in the night of the 23d of October, 1895, at the home of the deceased, Grant McGowan, and as to the circumstances attending the homicide the testimony of Maggie McGowan, wife of the deceased, may here be copied from the bill of exceptions, and is as follows: "I know Bill Williams, the defendant. He married my husband's sister. I am the wife of Grant McGowan. He is dead. He was shot. He was shot in the bed with me and the children; shot in the head. He was shot through the top of the head. My husband went to bed about 8 o'clock. I went to bed a little after 9. He slept in the southwest corner. I was right by the side window. I heard a noise at the window before I went to bed, but did not pay any attention to it. When I went to lay down, I heard a noise like a cat scratching. The light was turned down low. I did not hear any other noise. I had so often heard noises that I paid no attention to it. One standing on the ground could not see in, after I fixed the curtain. The blaze of fire was the first thing I saw on the pillow. I called my husband, I reckon, a dozen times. I laid my hand on him, and shook him, and then I heard the blood dropping on the floor. Then I called Swartz, the hired man. When Swartz came in the room, I told him I believed my husband was dead. and he said, `No, no.' He then turned up the light, and went out into the hall, and fired a pistol. Ben Thomas came in, I believe with sister. Bill Williams came. He was there about an hour. This was on the 23d day of October, 1895, and in this county and state. I know my husband and the defendant, Bill Williams, were not very friendly. They had fallen out about some cotton. Williams' wife was dead then. He had six children. My husband had charge of the place. Bill Williams had just moved there in the spring." On cross-examination she said: "I did not hear the gun fired. It did not wake me. The defendant's children are yet living; two in Tennessee. Mr. Freeland has one. The baby is two years old. Bill Williams' wife died last April a year ago." R. L. Freeland testified, also, as follows: "I know the defendant. Grant McGowan is dead. I never looked at the wound very particularly. He was shot in the head. The top of his head was shot off. His brains bespattered the head of the bed, and the ceiling of the room overhead. He died from the effects of the wound. The piece of canvass which was tacked over the broken pane of glass in the window, in the north end of the room, was cut horizontally and perpendicularly, and it was also burned. When I got there the yard was full of men standing around and talking. McGowan was washed and dressed then. The defendant was there. I talked with him. I asked him if he had any idea who it was that killed McGowan, and he said he had not. He stayed there most of the day. I said something about getting bloodhounds. I wanted it known that I was going to get bloodhounds, thinking that some one might leave, and give a clew. Defendant and I married sisters. There was a pane of glass out of the window, and a piece of canvass was over it. The canvass looked like it had been cut, and it was burnt. At the head of the bed I found some shot holes in it. It was about a month before the defendant was arrested." This was substantially all the testimony in the case, except the confessions of the defendant, testified to by some of the witnesses, which, if admissible, might be sufficient to justify a verdict of the jury, if they were properly instructed in relation thereto. The inadmissibility of these confessions in evidence is brought in question by the defendant.

"The rule of law applicable to all cases only demands that the confession should have been made voluntarily, and the evidence to this point is addressed to the judge trying the case, who admits or rejects them, as appears right in his discretion, and his judgment is not a subject of reversal unless arbitrarily abused." Runnells v. State, 28 Ark. 121. Most of the cases touching the subject which have been adjudicated in this court have involved the admissibility or weight of the testimony of accomplices testifying as to the confessions of the defendant, and for that reason are not strictly applicable. The general rule, as laid down by Wharton in his work on Criminal Evidence (section 658), is: "The real question is whether there has been any threat or promise of such a nature that the prisoner would be likely to tell an untruth from the fear of the threat, or hope of profit from the promise." The proper answer to this question in any case determines the question whether or not the confessions were voluntarily made, and this determination devolves upon the court trying the case; and it is said by all that this discretion of the trial court to determine it will not be controlled by the appellate court, unless it is abused. The evidence of the confessions, like any other evidence, ought nevertheless to be the subject of appropriate instructions to the jury, so that they can consider and pass upon the weight of this evidence, and whether or not it is entitled to any weight. Thus it is said in Ray v. State, 50 Ala. 104, a defendant may show that his confessions, detailed in evidence by witnesses, were uttered in jest. This is only an illustration, for there may be many circumstances surrounding the making of a confession which may very much affect the confession, and these are for the consideration of the jury under instructions. As to the admission of the evidence of the confessions, we see no reason to disturb the ruling of the trial court. There were no objections to the instructions of the court, and they were, therefore, not copied in the transcript, and we cannot say how far they went to cover the evidence of the confessions. All we can do is to suggest that proper instructions should be given the jury in that regard.

In the course of the formation of the jury, L. O. McDaniel, of the regular panel, was accepted by both parties, and took his seat in the jury box, he being the second juror accepted. On the next day, after about forty more persons had been examined, and seven more jurymen were selected therefrom, making nine accepted up to that time, on the motion of the...