Williams v. State

• Decision Date: 25 March 1912
• Citation: 146 S.W. 471,103 Ark. 70
• Parties: WILLIAMS v. STATE
• Court: Arkansas Supreme Court

146 S.W. 471

103 Ark. 70

WILLIAMS v. STATE

Supreme Court of Arkansas

March 25, 1912

Appeal from Pope Circuit Court; Hugh Basham, Judge; affirmed.

Judgment affirmed.

U. L Meade and J. T. Bullock, for appellant.

1. When the defendant in a criminal case complies with the statutes governing changes of venue, he makes out a prima facie showing entitling him to a change of venue, and the State's only defense to such motion is to attack the credibility of the supporting witnesses. It is not open to the court to examine other witnesses touching the conditions of the minds of the inhabitants of the county relative to the defendant's guilt or innocence, nor to arbitrarily refuse the change of venue because it believes the defendant can obtain a fair and impartial trial in the county. Kirby's Dig., §§ 2317, 2318; 68 Ark. 466; 36 Ark. 286; 54 Ark. 243; 71 Ark. 180.

2. Appellant was entitled to an instruction on the question of alibi, and the court erred in refusing to charge the jury that unless they should find from the evidence that he had sexual intercourse with prosecutrix on the day she testified he had such intercourse they should acquit. The court also erred in modifying instruction 6 requested by appellant by striking out the last sentence. 55 Ark. 244; 46 Ark. 141; 39 O. St. 215; Bishop, Crim. Proc. § 1066; Wharton, Crim Ev. § 333; 59 Ark. 379; 69 Ark. 177; 70 Ark. 337; 12 Cyc. 620, and cases cited; Id. 654.

3. The testimony of the prosecuting witness of acts and conduct and improper relations between herself and appellant subsequent to the date of the crime as charged and testified to by her was improperly admitted. 2 Wharton, Crim. Law, (8 ed.) §§ 1733 and 1744; 91 Ark. 559; 54 Ark. 626; 16 Okla. 197; 8 Am. & Eng. Ann. Cases, 457.

Hal L Norwood, Attorney General and William H. Rector' Assistant, for appellee.

1. There was no error nor abuse of discretion in overruling the motion for change of venue. It was but a mode adopted by appellant to obtain a continuance, and the court would have been justified in denying the motion on the testimony of the supporting witnesses alone. As to the testimony introduced by the State on the hearing of the motion, no objection was made by appellant at the time, and he ought not to be heard to object now. 95 Ark. 239; 85 Ark. 518; 83 Ark. 336; 80 Ark. 360; 76 Ark. 276; 86 Ark. 357; 91 Ark. 65; 54 Ark. 243; 71 Ark. 180.

2. If it was error to strike out the last part of instruction 6 requested by appellant, that error was cured by the giving of instruction 2.

3. The court properly admitted testimony of acts, conduct and improper relations between appellant and the prosecuting witness subsequent to the date of the crime for which conviction was asked. 126 Wis. 447; 112 Tenn. 578; 139 Cal. 527; 133 Cal. 11; 99 Ia. 1; 87 P. 185; 172 Mo. 532; 72 Neb. 915; 117 Ia. 484; 5 Neb. 283; 39 Wash. 599; 68 Ia. 416; 115 Ia. 178; 14 Mass. 285; 95 Ind. 464; 96 Ind. 505; 52 Ala. 24; 168 Ill. 395; 72 Me. 531; 121 N.C. 551; 101 Mass. 111; 85 Wis. 615; 112 Wis. 496; 1 Wharton, Crim. Ev. § 35.

OPINION

HART, J.

Albert Williams was indicted, tried and convicted before a jury of the crime of carnally knowing Lena Linker, a female under the age of sixteen years. To reverse the judgment of conviction, he has duly prosecuted an appeal to this court.

1. His first assignment of error is that the court erred in overruling his motion for a change of venue. His petition was in statutory form, and was supported by the affidavits of C. K. Campbell, J. D. Waits and G. P. Wheeler. To ascertain whether or not they were credible persons within the meaning of the statute, the court caused J. D. Waits and G. P. Wheeler to be examined under oath, touching their knowledge of the subject-matter of their affidavits. Their examination showed that they had only been in a few localities in the county, and that their information was not sufficient to form an opinion as to the state of the minds of the inhabitants generally of the county as to the defendant. It was also developed that one of their chief motives in making their affidavits was to secure a continuance for the defendant, in order that he might secure the attendance of an absent witness. Other witnesses were examined by the court, whose testimony tended to show that the minds of the inhabitants of the county were not prejudiced against the defendant.

In the case of Strong v. State, 85 Ark. 536, 109 S.W. 536, it was held: "Kirby's Digest, § 2318, providing that a change of venue in a criminal case may be granted upon the application of the defendant supported by the affidavits of two credible persons, does not contemplate that the truth or falsity of the affidavits shall be inquired into, though the credibility of the affiants may be investigated." Hence it was error for the court to have admitted the testimony of the other witnesses as to the state of mind of the inhabitants of the county for or against the defendant.

It does not appear, however, by the record, that the evidence received by the court was objected to in the court below, and, according to the well-settled rule of practice in this State, its legality or competency can not be questioned on appeal. Burris v. State, 38 Ark. 221.

While the accused had the right to insist that only competent evidence should be introduced against him on the hearing of his petition for a change of venue, yet he might waive that right, and did waive it, by his failure to interpose an objection to the testimony.

The examination of Waits and Wheeler showed that they had only been in a few localities in the county, and that their information was not sufficient to form an opinion as to the state of the minds of the inhabitants generally of the county as to the defendant. Besides, they stated that the chief reason that they made the affidavits was because they wished to secure a continuance for the defendant. Doctor Campbell was not examined, but, if it be conceded that he was a credible person within the meaning of the statute, yet his affidavit was not sufficient to support the petition of the defendant, as the statute requires the affidavits of two credible persons, and we are of the opinion that the court did not abuse its discretion in refusing the petition of the defendant for a change of venue, on the ground that the other two affiants did not have sufficient information to form an opinion as to the state of minds of the inhabitants of the county as to the defendant, and consequently were not "credible persons," within the meaning of the statute. Price v. State, 71 Ark. 180, 71 S.W. 948; Duckworth v. State, 80 Ark. 360, 97 S.W. 280; White v. State, 83 Ark. 36, 102 S.W. 715; Kinslow v. State, 85 Ark. 514, 109 S.W. 524.

2. It is next contended by counsel for the defendant that the court erred in modifying instruction No. 6, requested by defendant. The instruction as requested is as follows:

"6. You are instructed that if from the evidence you only have testimony as to one act of intercourse between prosecutrix and defendant in Pope County, Arkansas, that defendant may establish his innocence by proving that he was not at the place at the time when it is alleged the crime was committed. To establish his innocence under such circumstances, the burden of proof is on him by a preponderance of the testimony to establish what is called an alibi. That is, the evidence introduced to establish such an alibi must outweigh in your minds the evidence tending to show his presence at the place when the crime is claimed to have been committed. And if you believe from the evidence that he was not at such place when it is said that the crime was committed, then you should return the defendant not guilty. Or, if you have a reasonable doubt as to whether or not he was there, then you may consider that evidence with all the other evidence in the whole case; and if you have a reasonable doubt upon considering all the evidence, it is your duty to acquit."

The modification consisted in striking from the instruction the latter part, as follows: "Or, if you have a reasonable doubt as to whether or not he was there, then you may consider that evidence with all the other evidence in the whole case; and if you have a reasonable doubt upon considering all the evidence, it is your duty to acquit."

It is conceded by the Attorney General that the part stricken from the instruction is the law, and might properly have been given for the jury. Blankenship v. State, 55 Ark. 244, 18 S.W. 54; Ware v. State, 59 Ark. 379, 27 S.W. 485; Rayburn v. State, 69 Ark. 177, 63 S.W. 356; and Allen v. State, 70 Ark. 337, 68 S.W. 28.

The Attorney General however contends that instruction No. 6, as modified and given, taken in connection with instruction No 2, given by the court, cures any error in the elimination of the last sentence in instruction No. 6, as requested. Instruction No. 2, referred to, is as follows: "He starts out in the trial with the presumption of innocence in his favor, and that follows him throughout the trial or until the evidence convinces you of his guilt beyond a reasonable doubt. If, on a fair consideration of the whole testimony, you have a reasonable doubt as to his guilt or innocence, you will acquit the defendant." We think the contention of the Attorney General is well taken. The instructions, when read and considered together, in effect, told the jury, that where the evidence adduced to prove an alibi, considered with all the other evidence in the case, was sufficient to create in the minds of the jury a reasonable doubt as to the defendant's guilt, it was the duty of the jury to acquit him. Therefore, the error of the court in modifying the instruction was eliminated, and no prejudice resulted to the defendant. It is...