Wilson v. State
| Citation | 68 S.W.2d 100,188 Ark. 846 |
| Decision Date | 12 February 1934 |
| Docket Number | Crim. 3866 |
| Parties | WILSON v. STATE |
| Court | Arkansas Supreme Court |
Appeal from Logan Circuit Court, Northern District; J. O. Kincannon Judge; affirmed.
Affirmed.
John P. Roberts, for appellant.
Hal L. Norwood, Attorney General, and Pet Mehaffy, Assistant, for appellee.
Appellant was indicted in three counts jointly with Clifford and Gene Harback for the murder of Dolph Guthrie. In the first count they were charged with said murder in that they conspired to and did rob the First National Bank of Paris and in doing so did kill and murder said Guthrie, a teller in said bank, by shooting him. In other words, all were charged with shooting Guthrie. The second count charges them with the same offense in the same way, except the actual shooting of Guthrie is charged to Clifford Harback, and that appellant and Gene Harback were accessories before the fact. The third count, after alleging the conspiracy to rob and the actual robbing of said bank as in the first and second counts, further charged that the offense was committed as follows: "the said John Wilson, Clifford Harback and Gene Harback, in carrying out said intentions and common purpose of robbing said bank and effecting their escape, and while executing the purpose of said conspiracy aforesaid, feloniously, wilfully and of their malice aforethought and for their own protection from arrest and attack by officers or other persons from arresting them, the said John Wilson, Clifford Harback and Gene Harback, or either of them, compelled and forced Dolph Guthrie, against his will and consent, to accompany them out of said bank from a place of safety to a place known by said John Wilson, Clifford Harback and Gene Harback to be a place of great danger and exposed the said Dolph Guthrie to said danger from said attack upon them, the said John Wilson, Clifford Harback and Gene Harback by officers or other citizens in arresting them and preventing their escape, it was apparent to the said John Wilson, Clifford Harback and Gene Harback that the said Dolph Guthrie would naturally and necessarily be exposed to death and likely to lose his life, compelled the said Dolph Guthrie to accompany them from said place of safety to said place of danger as a shield from said attack from said officers or other persons and Andy Connoughton, the city marshal of the city of Paris, while attempting to arrest them, the said John Wilson, Clifford Harback and Gene Harback, and preventing their escape, and intending to shoot the said John Wilson, Clifford Harback and Gene Harback, the said Andy Connoughton accidentally, innocently and with no intention to injure the said Dolph Guthrie, he the said Andy Connoughton did shoot at them, the said John Wilson, Clifford Harback and Gene Harback, but did shoot, accidentally and unintentionally, the said Dolph Guthrie in and upon the head and body, from the effect of said wounds so inflicted, he, the said Dolph Guthrie, died on the 30th day of May, 1933, against the peace and dignity of the State of Arkansas."
Appellant was convicted under said indictment and sentenced to life imprisonment.
For a reversal of the judgment against him, appellant first says the court erred in refusing him a continuance or postponement from Monday to Wednesday. No formal motion was filed and no attempt was made to comply with § 1270, Crawford & Moses' Digest. The case was set for trial on August 24 for September 11, and, while it is true appellant was confined in the penitentiary, it is also true he was represented by counsel on August 24, and thereafter up to and during the trial. He had ample time to prepare his case for trial. Continuances and postponements of trials in criminal cases rest in the sound discretion of the trial court, and this court does not reverse for failure to grant them unless an abuse of discretion is shown. No abuse of discretion is shown in this case.
Appellant next says the court erred in not requiring the State to elect upon which count of the indictment it would go to trial. We cannot agree. Counts one and three charged appellant with murder in the first degree for the killing of Guthrie in different ways. Count two charged him with accessory before the fact to the murder of Guthrie. The statute, § 3015, Crawford & Moses' Digest, provides that: "An indictment except in cases mentioned in the next section, must charge but one offense, but, if it may have been committed by different modes and by different means, the indictment may allege the modes and means in the alternative." The next section referred to gives a number of offenses that may be joined in one indictment. This court has frequently held that an indictment for murder may charge the killing in different ways in separate counts. See Owens v. State, 159 Ark. 503 at 505, 252 S.W. 25, where a number of cases are collected to the same effect. It is also the holding of this court and generally that it is permissible to charge one as principal and as accessory before the fact to murder in the same indictment, since they are only different modes of charging the same offense. Lay v. State, 42 Ark. 105; Gill v. State, 59 Ark. 422, 27 S.W. 598; 2 Bish. Cr. Pr., § 7. Therefore the court did not err in refusing to require the State to elect.
The final and most interesting assignment of error relates to count three of the indictment, to which a demurrer was interposed, and to an instruction based thereon. While there is some evidence tending to show that Guthrie may have been killed by one of the robbers, we prefer to base this decision on the assumption that he was accidentally killed by the town marshal. While the robbers were engaged in robbing the bank the marshal, Andy Connoughton, thinking something was wrong, walked to the front door of the bank, shook the door and looked in. He met Mr. Wayne Cook and told him to get a gun. The robbers knew they had been discovered and hastened to leave the bank with their loot. One of them with a drawn pistol forced Guthrie to go with them. When they emerged from the bank the marshal ordered them to halt and fired at appellant, who returned the fire, wounding the marshal,...
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