Tiner v. State , 115 Ark. 494 ( 1914 )

Kirby, J.,

(after stating the facts). (1) It is insisted first, for reversal, that the court erred in permitting T. W. Campbell, an attorney employed to assist in the prosecution, to make the opening statement to the jury, the prosecuting attorney being present. Section 2374, Kirby’is Digest, provides that, ¡after the jury is sworn, ‘ ‘ The prosecuting attorney may then read to the jury the indictment and state the defendant’s plea thereto and the punishment prescribed by law for the offense, and may make a brief statement of the evidence upon which the State relies.” Section 2388 prescribes the order of the argument. The court held in Coon v. State, 109 Ark. 346, that there is nothing in said section prescribing the order of the argument requiring the prosecuting attorney, when assisted by other counsel, to make the closing argument himself. Neither do we think the law requires that the prosecuting attorney himself shall make the opening-statement to the jury; the purpose of it is to inform the jury of the issue to be tried and the testimony upon which the State intends to rely in proof thereof. This statement can be as well made by the attorney assisting in the prosecution as by the prosecuting attorney himself, and the law does not contemplate that it can not be so made, but only that such a statement shall be made by some one representing the State, in the beginning of the trial.

No error was committed in permitting this statement to be made by the attorney assisting in the prosecution.

(2) The next contention is that the court erred in the admission in evidence of the conversation between James Hum and the deceased. The deceased immediately before riding past the wine cellar asked said witness to watch him past the wine cellar, as he supposed Tom Tiner, who was jointly indicted with appellant, had threatened his life. He then rode the 150 yards intervening, and was killed immediately opposite the wine cellar. The conversation occurred at the time and place of the killing, related thereto and was a part of the transaction, so closely connected therewith that a correct and connected account of the occurrence could not have been made without stating it. Childs v. State, 98 Ark. 435; Carter v. State, 108 Ark. 124; Palmore v. State, 29 Ark. 248.

(3) In any event, all that part of it relating- to the request of deceased to see him past the wine cellar, and the witness’s agreement to do so, was admissible, and if deceased’s statement, that he supposed Tom Tiner had threatened his life, was objectionable, the whole of the conversation should not have been excluded on that account, and it could not have operated to the prejudice of the defendant since the father who had been convicted for the hilling of the deceased, testified in this cause that he did hill him, shooting him twice, first with a shotgun, and immediately thereafter with the rifle. Smith v. State, 107 Ark. 494.

(4) The court allowed over appellant’s objection the introduction of the written statement of his testimony voluntarily given before the coroner’s jury, and it is strongly urged that error was committed in so doing. This is the same statement that was admitted in the former trial, and the court there held it admissible as tending to show a declaration against interest, and to establish the fact of his presence in the wine cellar, notwithstanding his contention through the testimony of his mother that he was outside and behind the wine cellar when the shots were fired. Timer v. State, supra. The mother testified on this trial, as in the other, and likewise his father, that appellant was not in the cellar at the time of the shooting, and the appellant’s voluntary statement before the coroner’s jury was admissible on this trial.

It is claimed that the court made many errors in the giving and refusing of instructions, but after a careful examination of the court’s charge, we are of opinion that all the correct instructions asked for by' appellant that were refused by the court were fully covered by instructions given, and that on the whole they submitted the cause fairly to the jury which convicted the appellant upon virtually the same testimony that has been held sufficient to sustain a conviction by this court in two trials, that of appellant’s father and of himself preceding this one.

In his motion for a new trial, he alleges the misconduct of the jury in the consideration of the case, and that several of them read the following article, which was printed in the Star -Herald, a newspaper published in Pocahontas, while the trial was in progress:

“The frequency with which murderers escape the death penalty and the light sentences often given, even when convicted at all, has caused more or less comment the country over. It has been remarked that it is probably safer to commit homicide than to be a burglar. The more serious the crime, the harder the -fight is put up for the criminal. The lax enforcement of the law against homicide is one of our pet scandals, due in part to a too technical view of the law on the part of the courts and the disposition on the part of jurors to dodge a duty.

“The moment a man comes up for murder, at least in any State having capital punishment, there is a unanimous effort to dodge jury service. Thoughtful men shrink from the task. The result is, murder juries in the United States are not, as a rule, equal in intelligence or in personal force, to the panel assembled to try a man for larceny. The case that calls for the highest sense of responsibility and the hardest intelligence, may draw a minimum of these qualities.

“It is merely the duty of the murder jury to look at the evidence in a sensible, common sense, light. Even if one believes that the penalty imposed is too severe, yet the responsibility. rests wholly upon the citizens of the State, and no more on the jury than on their next-door neighbors.

“In almost any murder ease, -an appeal to mushy sentimentalism is made. The jury is implored to disregard a sworn duty, simply because it is difficult to inflict punishment. It takes iron in the blood to stand up against these appeals to a universal sentiment. The jury that brushes aside all this fog, and renders an honest verdict on the facts, is entitled to the gratitude of the people and full recognition as to manhood.”

(5) The testimony in support of this allegation consisted of one affidavit only, the affiant stating that papers containing the article were seen in the jury room while the verdict was being considered, but there was no statement that any member of the jury had read it. The article makes no direct reference to the case on trial, and does not attempt to relate any of the testimony nor comment thereon. No sneh showing was made as would require the granting of a new trial because of it.

Finding no error in the whole record the judgment is affirmed.