Hearne v. State , 121 Ark. 460 ( 1915 )

Kirby, J.,

(after stating the facts). Appellant’s first contention for reversal is that the court erred in denying his right to peremptorily challenge one of the jurors offered after the twenty peremptory challenges allowed by law had already been exercised by the defendants in the case in which he was jointly tried.

It is argued that appellant did not exercise his right of 'challenge at all, was not consulted and did not participate therein, the right being given to Bob Kenton, whom the record shows challenged the twenty jurors. Under our statute, the defendant is entitled to twenty peremptory challenges in prosecutions for felony and it is not claimed that the twenty challenges were not exercised and the right exhausted in this case but that each defendant where they were tried jointly, is entitled to the designated number of peremptory 'challenges. The. law allowing three peremptory challenges of jurors to the parties in civil actions has been construed and held to mean that each side is only entitled to that number, without regard to the number of plaintiffs or defendants interested in the trial; that the challenge of a juror on behalf of the plaintiff or defendant is a challenge for all on that side, regardless of number and this is likewise true when-cases are consolidated and tried together. Fidelity Phenix Ins. Co. v. Friedman, 174 S. W. 215, 117 Ark. 71.

(1) Appellant was jointly indicted with the others and ¡had the right upon request to a separate trial, when he individually would have been permitted to exercise the right to twenty peremptory challenges, 'but not having asked to sever, and having consented to the joint trial, the defense only had the right to the exercise of said number of challenges without regard to the number of persons on trial as defendants. The law only intends to permit the exercise of said number of challenges for the defense on a single trial in a felony prosecution. U. S. v. Hall, 10 L. R. A. 323; People v. Thayer, 1 Parker, C. R. 595; State v. Wolf, 112 Ia. 458; Cochran v. U. S., 77 C. C. A. 432; State v. MacQueen, 69 N. J. Law, 522.

It is ‘next complained that the court erred in the admission of incompetent testimony. This contention is without merit however. It is true, J. A. Green, was permitted to testify that J. A. Osborne was a party to a suit instituted by the State of Tennessee v. Cissna and others in the chancery court, but the .appellant had already introduced in evidence the record of said cause ■showing that fact.

(2) Neither did the court err in allowing said witness, Green, to testify about the true boundary line between the States of Tennessee and Arkansas, from the copy of the map produced by him in evidence. He stated that he had formerly made a survey of the island to determine the boundary line and had made a map thereof and that the copy of the map introduced in evidence, and referred to in his testimony, was ¡a photographic copy of the original map made 'by him and which had been compared iand was -known by him to be correct.

■Curtis. Little, the clerk of Mississippi County testified that he had used the field notes of the section and township -which were taken from the photographic plat book of the original surveys made by the -government. These books were furnished to the clerks of the counties by the -State Land Commissioner’s office, with the proper certificates attached.

No witness disputed the correctness or accuracy of either the map or field notes and the court committed no error in permitting the introduction of this testimony. Sellers v. State, 93 Ark. 313; Hankins v. State, 103 Ark. 28; Russell v. State, 97 Ark. 92. See also, Hall v. Conn. Mutual Life Ins. Co., 79 N. W. 497; Mincke v. Skinner, 44 Mo. 92; Shook v. Pate, 50 Ala. 91.

(3) Neither was error committed in allowing witnesses to testify that they heard Burt Spring -and a woman call, “Oh! Mr. Dave, Mr. Dave!” several times immediately after the shooting began. These exclamations were a part of the transaction and occurrence, being made at the time and competent and admissible as part of the res gestae.

(4) It is insisted that the court erred in refusing appellant’s requested instruction embodying the legal principles -as announced in his requested instruction numbered 4 and in -giving instruction numbered 1, as follows: “On the question of venue * * * y011 are instructed that the boundary line between the State of Arkansas and the State of Tennessee in the vicinity of the alleged crime is the middle of the main channel of the Mississippi river as the same existed on the 16th day of June, 1836, the date of the admission of the State of Arkansas, and by the middle line of the main channel of the Mississippi river, is meant the equi-distant point in the main channel of said river between the well defined banks on either shore at said time, and all the water and. lands which may now occupy the space between the middle line as same then existed, and the Arkansas shore as same now exists, is within the jurisdiction of the Osceola District of Mississippi County, Arkansas.”

Said instruction numbered 4 reads: “Long acquiescence by one State in the possession of territory by another and in the exercise of sovereignty .and dominion over it, is. conclusive of the title and rightful authority of the latter State. Therefore, if you find from the evidence in this case that the State of Tennessee for more than thirty years exercised sole and exclusive jurisdiction, sovereignty and dominion over the place where the alleged crime was committed, and that the State of Arkansas has during that time acquiesced in the exercise of jurisdiction over the same, then the State of Tennessee has sole and exclusive jurisdiction over the territory where said crime was alleged to have been committed, you will return a verdict of not guilty. ”

The court in its said instruction numbered 1, also called attention to the testimony adduced relating to the existence of a civil district of Tipton .County, Tenn., upon Island 37, the establishment of polling places and holding elections thereon, under the laws of said State, the assessment and collection of taxes upon real and personal property and the exercise of jurisdiction by the courts of said county of Tennessee in civil and criminal proceedings against persons and property thereon, as well as testimony of the failure of the constituted authorities of Mississippi county, Arkansas, to exercise jurisdiction thereon and continued, “This testimony is competent and is to be considered by you, together with .all the other facts and circumstances in proof bearing upon this question of jurisdiction, but if you find from a preponderance of the evidence that the alleged crime was committed north of the middle line of the main channel of the Mississippi river, as it existed on the 16th day of June, 1836, at said place, the Osceola District of Mississippi County, Arkansas, has jurisdiction in this case, notwithstanding the exercise of the jurisdiction of the .State of Tennessee thereon, and notwithstanding the failure of the legally constituted authorities of Mississippi County, Arkansas, to exercise jurisdiction over .said territory heretofore. ’ ’

No mention was made of the law of Congress authorizing it nor the statutes of Arkansas authorizing and permitting reciprocal and extended jurisdiction over offenses committed upon the Mississippi river to the west bank thereof by Tennessee and the eastern bank by the State of Arkansas.

In Kinnanne v. State, 106 Ark. 286, this court approved an instruction relative to the boundary line between the States of Arkansas and Tennessee, declaring the law in effect as given in said instruction numbered one iand quoted in the opinion, the holding and declaration of the Supreme Court of the State of Tennessee, in Tennessee v. Muncie Pulp Co., 119 Tenn. 47, to like effect, recognizing the boundary between the states to be as declared by the Supreme Court of Arkansas, and no error was committed in the refusal of the said requested instruction numbered 4 and the others of like kind, for the ■State of Tennessee is making no claim of title herein to the territory upon which the offense was shown to have been committed, and as held in Tenn. v. Muncie Pulp Co., supra, the states having agreed upon the true and correct line separating their territory as announced in said instruction numbered 1, others .can not ibe heard to complain.

It is finally strongly urged that the testimony is not sufficient to support the verdict either as to the venue or the commission of the crime. The indictment charges the 'appellant, along with others, with conspiracy to kill and murder 'Sam Mauldin, the sheriff of Mississippi County, iand the instructions presented the questions at issue to the jury, requiring them to find before convicting appellant that Burt Spring, who fired the shot, was guilty of such offense. It is true there is no. testimony that appellant did anything on the night of the raid of the Andy Crum place and the killing of the sheriff, except to come out of his room in his night clothes after the shooting began and some one hallooed for him, but he was with difficulty kept from immediately going back into the room filled with loaded weapons, the officer having to threaten to shoot him with a shot gun presented, to keep him from doing so. He .also laughed when he came into the presence of the,, sheriff who lay dying upo'n the ground, manifesting a reckless .and wanton disposition in keeping with the unlawful business conducted by him and his associates and in accord with the many conversations and threats indulged in by them against the Arkansas officers, if any attempts were made for their arrest for their open violations of the law.

(5-6) We think the conduct of the appellant and the others in charge of the Andy Crum place, with the threats and statements shown to have been made by them, sufficient to show an unlawful conspiracy to resist the Arkansas officers .and kill the sheriff upon'an attempt to arrest, them. Conspiracies are often difficult to prove by direct testimony 'and rarely can any express understanding or agreement be shown, and the law does not require that it shall be. Large latitude is allowed, necessarily, in proof of a conspiracy, and the jury should be permitted to have before them all the facts which will enable them to come to a correct conclusion. Much discretion is left to the trial court in the admission of testimony tending to establish the fact and if all the evidence shows that a conspiracy actually existed, it is not material whether the conspiracy is established before or after the detailing in evidence of the acts and declarations of the conspirators. Easter v. State, 96 Ark. 629, 132 S. W. 924; Parker v. State, 98 Ark. 575; Chapline v. State, 77 Ark. 444.

In 'the last cited case, the court quoted from Cantrell v. State, 174 S. W. 521, 117 Ark. 233, the following: ‘ ‘ The rule in such oases is well defined, .and has been announced in a number of decisions of this court. The proof of such conspiracy is another of those preliminary questions to be passed upon by the court, and where evidence is offered which is sufficient to make a prima facie showing of the existence of such conspiracy, then all the acts and declarations of each conspirator during the progress of the conspiracy are admissible against his co-conspirators. It is not often that these conspiracies can be shown by express agreement. Their existence is more often shown by the proof of 'circumstances, the concurrence of which leads one to believe that the parties are acting from a common unlawful motive.”

The undisputed testimony shows that the sheriff was killed by Burt Spring, the keeper of the gambling house at the Andy Crum place, which was under the control of Dave Hearne during the absence of the proprietor, while he was attempting to make arrests for violations of the law by these offenders, and the testimony is sufficient to show, as the jury found; that appellant, Spring and some of the others had conspired to resist such arrest, to the killing of the officers upon any attempt to take them. It was etrongly contended that Burt Spring, who died from the wounds inflicted in the raid, had no knowledge or information that an attempt was being made to arrest him and that he had the right to protect himself and his house from those who were attempting to force an entrance and shooting at him. The testimony is in conflict upon this point but it is not disputed that before the shot was fired that killed the sheriff, Burt Spring had been told by the negro who was. trying to push the door open, in order to protect himself from being shot while doing so, “Don’t shoot, Burt, don’t shoot these white men, these officers ¡and soldiers, they won’t hurt you, and if you make fire, you are ruined,” and notwithstanding this, after the door was forced open, he continued shooting until the sheriff was killed.

(7) The testimony all 'shows that the place was a notorious dive operated in open defiance of the laws of Arkansas; that those in charge knew that it was regarded as in Arkansas territory and in Mississippi County by the officials of that county and that they anticipated a raid by the Arkansas officers and expressed themselves as not only prepared for but determined to resist it. Under these circumstances the evidence is sufficient to warrant the jury’s verdict that' Burt Spring knew that he was resisting arrest by the officers and not attempting to defend himself against a deadly assault from an unknown assailant.

The testimony of the witnesses who made the survey and determined the boundary line between the two states was undisputed that the Andy Crum place, where the killing occurred, was on a certain part of section of land in Mississippi County, Ark., except as the testimony of the exercise of dominion and jurisdiction by the State of Tennessee over said Island No. 37, upon which the Crum place was situated, tended to refute it. The jury were properly instructed as to the venue, and the testimony is sufficient to support the finding that the offense was committed within Mississippi County, Arkansas.

Finding no prejudicial error in the record, the judgment is .affirmed.