Wingfield v. State

• Decision Date: 09 May 1910
• Citation: 128 S.W. 562,95 Ark. 71
• Parties: WINGFIELD v. STATE
• Court: Arkansas Supreme Court

128 S.W. 562

95 Ark. 71

WINGFIELD v. STATE

Supreme Court of Arkansas

May 9, 1910

Appeal from Clark Circuit Court; Jacob M Carter, Judge; reversed.

Judgment reversed and cause remanded.

Hamby & Haynie and Hardage & Wilson, for appellant.

Threats are admissible to show who was the probable aggressor in the difficulty. 82 Ark. 595. The jury should have been polled. Kirby's Dig. § 2419; Thompson on Trials, § 2632; 63 Ala. 97; 20 Cal. 69; 31 Ark. 196; 69 Ark. 626. Where the jury may be polled as of right, it is error to receive the verdict in the absence of defendant's counsel whereby the right is lost. 31 Wis. 615.

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

In filing a bill of exceptions proved by bystanders, the statute must be strictly complied with. 71 Ark. 577; 57 Ark. 1; 56 Ark. 594. The case of Boone v. Holder, 87 Ark. 461 should be overruled. Appellant's effort to impeach the verdict of the jury by their affidavits is without authority of law. Kirby's Dig. § 2423; 70 Ark. 224; 67 Ark 266; 59 Ark. 132; 37 Ark. 519; 29 Ark. 223; Bish. Crim. Proc. 1170. The punishment should be reduced to the minimum and then affirmed. 84 Ark. 292; 83 Ark. 268; 88 Ark. 579; 122 S.W. 727; 72 Ark. 276; 66 Ark. 270. Instructions not set out in appellant's abstract are presumed to be correct. 90 Ark. 161; 45 Ark. 348.

OPINION

McCULLOCH, C. J.

W. O. Wingfield was convicted of the crime of manslaughter, and appeals. Among other assignments of error, he shows that when the jury returned a verdict against him he requested the court to poll the jury, but that the court refused to do so. The statute, which is a part of the Code of Criminal Procedure, provides that, "upon a verdict being rendered, the jury may be polled at the instance of either party, which consists of the clerk or judge asking each juror if it is his verdict, and if one answers in the negative the verdict cannot be received" (Kirby's Digest, § 2419).

There seems to be some doubt whether defendant could, as a matter of right, in the absence of a statute expressly conferring that right, demand a polling of the jury, or whether it rests in the discretion of the trial court. The authorities are conflicting on that question. But there can be no serious doubt that our statute on the subject was intended to be mandatory, and that it confers an absolute right, on demand, to have a jury polled.

In Alabama there is a statute on the subject reading as follows: "When a verdict is rendered, and before it is recorded, the jury may be polled, on the requirement of either party, in which case they must be severally asked if it is their verdict, and, if any answer in the negative, the jury must be sent out for further deliberation." The Supreme Court of that State decided that the statute is mandatory. Brown v. State, 63 Ala. 97.

If the statute is mandatory, it follows that the refusal to poll the jury was a prejudicial error, for it deprived the defendant of a substantial right to ascertain to a certainty from the individual expression of each juror whether or not the verdict reported by the foreman was concurred in by all.

But the circuit judge refused to certify this exception in the bill of exceptions, and defendant procured and filed within the time allowed the certificate of two bystanders attesting the truth of the exception as by him prepared. No controverting affidavits were filed by counsel for the State, and we must treat the exception as having been properly taken and preserved. Smith v. State, 87 Ark. 459, 16 S.W. 2; Boone v. Holder, 87 Ark. 461, 112 S.W. 1081.

The Attorney General insists that the cases cited above are wrong, and that we should overrule them, and accept the certificate of the trial judge, refusing the exception. We decline to overrule those decisions, for they represent the deliberate judgment of this court in construction of a statute prescribing a rule of practice on appeals to this court. Moreover, we are more fully convinced on further consideration of this question that those decisions are correct. The Legislature is entirely untrammeled by constitutional limitation in prescribing the mode in which exceptions to ruling of trial courts must be preserved in order to have them reviewed by the appellate court. No judicial act is involved in recording an exception, and the statute authorizing the attestation by bystanders of the truth of an exception is not unconstitutional, as contended by the Attorney General.

"The object of a bill of exceptions," says the Supreme Court of Mississippi, in opinion by Judge Simrall, "is to perpetuate, for the use of the appellate court, a full and complete history of what transpired on the trial, or so much as may be needed for the...