1. HOMICIDE (§ 253*)-SUFFICIENCY OF EVI DENCE-MURDER IN THE FIRST DEGREE. bery, etc., shall be murder in the first degree, was proper. [Ed. Note. For other cases, see Homicide, Cent. Dig. §§ 642-647; Dec. Dig. § 308.*] Appeal from Circuit Court, Saline County; W. H. Evans, Judge. Joe Strong was convicted of murder in the first degree, and he appeals. Affirmed. Appellant was convicted upon an indictment charging him with the crime of murder in the first degree. The indictment, in apt words, charged the appellant with murdering one L. H. Thompson while engaged in an attempt to perpetrate the crime of robbery. The testimony on behalf of the state tended the mercantile business in the town of Bento show that one L. H. Thompson was in ton, and also keeping a small hotel in the In a prosecution for murder, evidence held to sustain a conviction of murder in the first de-same building; that appellant, in company gree. [Ed. Note. For other cases, see Homicide, Cent. Dig. §§ 523-532; Dec. Dig. § 253.*] 2. CRIMINAL LAW (§ 1166%*) APPEAL HARMLESS ERROR. In a prosecution for murder, where the prosecuting attorney requested that accused be required to stand up, but on objection abandoned his request before any ruling thereon, and where accused afterwards voluntarily stood up while the same witness was being cross-examined, there was no prejudice in the failure of the court to rule upon the request. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 3114-3123; Dec. Dig. § 11662.*] 3. CRIMINAL LAW (§ 519*)-EVIDENCE-CON FESSION-VOLUNTARY CHARACTER. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1163-1174; Dec. Dig. § 519.*] with one Dewein, went to this building for the purpose of robbing L. H. Thompson; that they took with them an iron coupling pin, with which they crushed and battered Thompson's skull; that he died from these wounds the next day; that the assault occurred on Saturday night November 22, 1913. Appellant lingered at the boarding house where he was staying until Sunday night, and then fled to Louisiana. Two or three weeks thereafter he was apprehended and brought back to Benton and placed in jail. He made a confession to one J. F. Shoppach, whose testimony concerning it is, in part, as follows: I then told him "I am 55 years of age, and live at Benton. Where the sheriff had said that he knew of I served as sheriff of Saline county for 12 years, the matter and went over the whole story and several years ago. I first saw appellant when asked if that was not the way it happened, and the officers brought him from Louisiana. He deaccused, without a threat or promise or a prof-nied at first to me that he had anything to do fered hope, but merely upon the statement that with the killing of deceased. it would be better for him to tell, expressed his what I knew of the matter, and told him that I then willingness to tell how it happened, and when Dewein had told how it happened. his statement was reduced to writing and read went over the whole story as I knew it, and to him sentence by sentence and he had made asked him if that was not about the way it hapsuch corrections as he desired, signed it in the pened. I did not tell him where I got the inforpresence of several persons, it was admissible mation until after I had rehearsed the story. as a voluntary confession. He saw then that I knew all about it, and said he would tell me how it happened. There was single promise, or hold out any hope whatever. not a threat made, and I did not make him a I just told him it would be better for him to tell it. After he had told me the whole story I asked him if he would be willing to have his statement reduced to writing and sign it, and he said he would. Then I called L. B. White and asked him to do the writing. He wrote down sentence by sentence the story as the appellant repeated it to him. He would read it over sentence by sentence and give appellant an opportunity to make corrections as they went along, which appellant did. After it was all written down it was all read over to the appellant, and he made such corrections as he desired and then signed it. At the time he signed the statement there were several other people in the room. When he made the statement to me there was no one else in the room besides 4. HOMICIDE (§ 293*)-INSTRUCTIONS-ISSUES [Ed. Note.-For other cases, see Homicide, Cent. Dig. § 604; Dec. Dig. § 293.*] appellant and myself, but Dr. B. F. Dougan and Judge J. J. Tarlton were in an adjoining room, and the door was partly ajar." 5. HOMICIDE (§ 308*)-INSTRUCTIONS-DEGREE. In a prosecution for murder an instruction in conformity with the proof and with the statThe prosecuting attorney, over the objec ute, prescribing that all murder committed in the tion of appellant, was permitted to read this perpetration of or attempt to perpetrate rob- alleged confession to the jury. It is unnec *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes know. and leggings. At this juncture the record shows that the following occurred: The prosecuting attorney asked the appellant to stand up. He refused to do so, and the prosecuting attorney repeated his request. Counsel for appellant objected. The court hesitated, and the prosecuting attorney abandoned the request. The appellant saved his exceptions to the action of the prosecuting attorney in insisting that he stand up and to the failure of the court to rule, and asked that his exceptions be noted of record, which was accordingly done. The record further shows that, on cross-examination: "The appellant, on request of his counsel, voluntarily stood up, and the witness who was beWitness was a head taller than the appellant. ing examined at the time stood beside him. Witness was then asked by the prosecuting attorney whether the appellant resembled the man with Dewein on the night of the killing, and witness replied, 'Somewhat.'" Among others, the court, at the request of the state, gave the following instruction, numbered 5: essary to set it out in detail. In it the appel- I was in his shirt sleeves and had on a cap lant says that he did not commit the crime or assist in doing it of his own free will. He claimed that Dewein induced him to enter into the affair, and that he did not have any intention of helping him to murder at all. He details the circumstances under which he met Dewein and another confederate by the name of Herman, when they talked over and discussed plans for two or three nights previous to the killing for robbing Thompson. He says that on the morning of the night of the killing Dewein approached him and said, "We'll pull it off to-night." After supper appellant started to go to town to buy a cap, and Dewein caught up with him at the depot and asked him if he was going to help kill Mr. Thompson, and that he said he did not Dewein said, "Come on; let's go." Dewein told appellant to help find a club. They did not find one. Dewein took a coupling pin out of a freight car. Appellant did not help him get the pin, but stood near by. Dewein gave appellant the coupling pin at the steps of the store. Then he told appellant to go in and try to get some more cheese and crackers. Appellant went in after the cheese and crackers. Thompson got the cheese for appellant and was going after the crackers when Dewein told appellant to hit him. Appellant did so, and caught him when he fell limp in appellant's arms. Thompson began to struggle and Dewein took the cou-petration of or attempt to perpetrate the crime pling pin and struck him twice in the back of the head. Appellant had dropped the pin after hitting Thompson one lick, when Dewein picked it up and hit him two blows hard enough to kill an elephant. Dewein then went through his pockets, after he hit him and while he was lying on the floor. Dewein then went to the bed to look for money, and found the gun. Dewein got some money and the knife when he went through Thompson's pockets. Appellant did not have the money, gun, or knife at any time. Appellant then tells where he took off his bloody shirt and tie and threw them in the creek, describing the kind of shirt, and also stating that he took off his leggings and put them on the back porch. Appellant then tells about his leaving for Louisiana and what he did while there until arrested and brought back. He concludes the confession by saying that the statement was made without any compulsion or hope of reward; that he had read the same and the statements were correct and true. This is substantially the material part of the alleged confession. While one of the witnesses was being examined he was describing two parties whom he saw about 20 minutes before Thompson was killed. They were going at the time in the direction of Thompson's house, according to the nearest route. He described one of them as a low heavy-set fellow, who had on a gray-looking shirt and brown tie and "If you believe from the evidence in this case, beyond a reasonable doubt, that the defendant, Joe Strong, after premeditation and deliberation, or in the perpetration of robbery, or in the attempt to perpetrate the crime of robbery upon L. H. Thompson, struck the blow or blows which caused, or contributed to cause, the death of L. H. Thompson, or that some other person, after premeditation and deliberation, or in perof robbery, struck the blow or blows which caused, or contributed to cause, the death of L. H. Thompson, and that the defendant, Joe Strong, was present at the time the fatal blow ready and consenting to aid and abet said other was given, and was aiding and abetting, or person in the commission of said offense, then you are instructed that the defendant is guilty of murder in the first degree, and you should so find." To which the appellant saved his exceptions. The court also refused appellant's request for instruction numbered 1, which is as fol lows: son lieve from the evidence that the defendant en- The court modified the instruction and believe, that his life or person was in great dan- | the alleged confession of the defendant. In ger, and struck the first blow on the head of the one of the latest cases we held that where a deceased, and you believe that said blow was not sufficient to kill the deceased, and that he did confession is obtained from a defendant by not die from said blow, and that the defendant persistent questioning by officers, but without then in good faith abandoned any further at- deception, threat, hope of reward, or inducetempt to kill or rob the deceased, and that the ment of any kind, it is admissible as a volunsaid Dewein then picked up the coupling pin and beat the deceased over the head, and from tary confession. We do not find in the cirthe effects of the beating the deceased did die, cumstances under which this confession was defendant would not be guilty of the crime made any influences which were calculated charged in the indictment, and you should find to induce appellant to swerve from the truth him not guilty." in his statement. from the taint of official inducement proceedThe confession was free ing from either hope or fear, and was made in the absence of any threat of injury or proming of the court in the case of Greenwood ise of reward, and thus conformed to the rulv. State, 107 Ark. 568, 156 S. W. 427, and all of our former cases on the subject. To which ruling of the court in refusing his instruction and in modifying and giving the same as modified the appellant duly excepted. The appellant was convicted of murder in the first degree. His motion for a new trial, in addition to the general grounds that the verdict is contrary to the law and the evidence, set out the following: [4] IV. The instruction which the appel"That the court erred in permitting the pros- facts as shown in the record, giving them lant requested was not the law, under the ecuting attorney to insist upon the defendant standing up before the jury and the witness, the most favorable interpretation for appelWalter Marion, while he was testifying. That lant. The testimony did not warrant a findthe court erred in permitting the prosecuting ing that the appellant was in imminent danger attorney to read what purported to be the confession of the defendant. That the court erred of his life or of great bodily harm by any in refusing to give to the jury instruction No. 1, threats or acts of Dewein at the time that as asked by defendant. That the court erred in appellant struck Thompson. His own conmodifying instruction No. 1, and in giving to the fession does not show that he was forced to jury said instruction in its modified form. That the court erred in giving instruction No. 5 asked take part in the killing and robbery by reason by the plaintiff." of any fear of danger to his life or great bodily harm from Dewein. The instruction of the court, therefore, as modified, was more favorable to appellant than he was entitled to under the evidence. Wm. L. Moose, Atty. Gen., and Jno. P. Streepey, Asst. Atty. Gen., for the State. as WOOD, J. (after stating the facts above). [1] I. The verdict was sustained by the evidence, as the same is set forth in the statement. [2] II. There is no error in the ruling of the court in regard to the assignment as to appellant's being requested to stand up during the examination of a witness. The record shows that after the request had been made by the prosecuting attorney for the appellant to be required to stand, he abandoned this request, and that the court did not rule upon the same, and that afterwards the appellant voluntarily stood up while the witness was being cross-examined. There was no prejudice in the alleged failure of the court to rule upon the request of the prosecuting attorney. The appellant, having voluntarily stood up, could not be prejudiced by any request made by the state to have him stand. He voluntarily made profert of himself to the jury in order to show, doubtless, that he did not fit the description of the person whom the witness was describing as a participant in the murder. If any prejudice had resulted in the request made by the prosecuting attorney and the failure of the court to rule thereon, such prejudice was removed by this voluntary act on the part of the defendant. [3] III. The court did not err in admitting [5] V. Instruction No. 5 was in conformity with the proof and the statute prescribing that: "All murder which shall be committed in the perpetration of or attempt to perpetrate arson, rape, robbery," etc., "shall be deemed murder in the first degree." The record presents no error, and the judgment is affirmed. CALEDONIA INS. CO. OF SCOTLAND ▾ Appeal from Circuit Court, Pulaski County; Caledonia Insurance Company of Scotland. W. L. & D. D. Terry, of Little Rock, for appellant. Wynne & Harrison, of Fordyce, for appellees. 3082, Phoenix Insurance Co. v. Banks, 169 S. PER CURIAM. This case is ruled by No. W. 233, and should have been submitted and decided at the same time; but the court was not advised at the time of the submission of the former case that the same issues were involved. The judgment is therefore affirmed. END OF CASES IN VOL. 169 INDEX-DIGEST KEY NUMBER SYSTEM THIS IS A KEY NUMBER INDEX It Supplements the Decennial Digest, the Key-Number Series and ABANDONMENT. See Adverse Possession, § 50; Trespass to Try See Evidence, § 335. ABATEMENT AND REVIVAL. V. DEATH OF PARTY AND REVIVAL ABSTRACTS OF TITLE. ACCESSORIES. See Criminal Law, §§ 69, 80. ACCIDENT. ACCOMMODATION PAPER. See Insurance, § 449. (A) Abatement or Survival of Action. § 68 (Ky.) Upon death of defendant after judgment, the action abated as to him.--Gish Banking Co. v. Leachman's Adm'r, 169 S. W. See Bills and Notes. 481. (B) Continuance or Revival of Action. ACCOMPLICES. ACCOUNT. §71 (Ky.) Upon death of defendant after See Abortion, §§ 3, 5; Criminal Law, §§ 69, 80. judgment, the action abated as to him, and nothing could be done affecting his estate until it was revived, and a bill of exceptions by plaintiff could not properly be filed and made part of the record, so as to affect the estate, until the action was revived.-Gish Banking Co. v. Leachman's Adm'r, 169 S. W. 481. See Account Stated; Executors and Administrators, § 510; Receivers, 88 198, 199. ACCOUNT, ACTION ON. ACCOUNT STATED. 871 (Ky.) Under the direct provisions of Ky. See Pleading, § 320. St. § 521, there is no necessity of revivor against the heirs of defendant, where he died between the time the court directed a conveyance of his land judicially sold and the time the conveyance was actually made by the commissioner.Likens v. Pate, 169 S. W. 734. ABETTORS. See Criminal Law, §§ 69, 80. ABORTION. See Criminal Law, §§ 69, 396, 589; Witnesses, § 361. §3 (Tex.Cr.App.) A female who commits abortion on herself is regarded as the victim, and not the perpetrator, of the crime.-Fondren v. State, 169 S. W. 411. Pen. Code 1911, art. 1072, reciting that ont who furnishes the means to secure an abortion shall be an accomplice, held not exclusive but under article 79 one who before the fact advises, commands, or encourages the commission of an abortion defined by article 1071 is an accomplice though he does not furnish the means for the perpetration thereof.-Id. Where an abortion was performed on prosecutrix by a physician at the alleged instance of defendant, prosecutrix was not an accomplice. -Id. 85 (Ark.) It is the consent of the debtor that imparts the character of an account stated to an account; and the parties may agree as to the items on one side and leave the items on the other open for settlement.-Godfrey v. Hughes & Hall, 169 S. W. 958. § 12 (Ark.) An account stated may be impeached only for fraud or mistake.-Godfrey v. Hughes & Hall, 169 S. W. 958. $20 (Ark.) In an action on a note, which plaintiff claimed represented an account stated, held, on the evidence for defendant, that the refusal to submit the issue whether it was given in full settlement of all transactions between the parties was reversible error.-Godfrey v. Hughes & Hall, 169 S. W. 958. ACKNOWLEDGMENT. IV. PLEADING AND EVIDENCE. § 62 (Mo.) In a suit where a married woman sought to set aside a deed on the ground that the acknowledgment was not her free act and deed, a decree denying her claim held not contrary to the weight of the evidence.-Nelson v. Alport, 169 S. W. 94. ACTION. $5 (Tex.Cr.App.) An indictment against an accomplice of a physician for abortion under Pen. Code 1911, arts. 79, 1071, held not ob- See Dismissal and Nonsuit. jectionable for failure to allege that the physician who performed the abortion then knew that the woman was pregnant.-Fondren v. State. 169 S. W. 411. II. NATURE AND FORM. § 24 (Ky.) The fact that an equitable assignment is set up in an action at law, instead of For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and section (§) NUMBER 169 S.W. (1193) |