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uance 'is never ground for a new trial unless it clearly appears to have been an abuse of such discretion, and manifestly operates as a denial of justice.'” In Loftin et al. v. State, Use, etc., 41 Ark. 156, the court said: “It must be a flagrant instance of the arbitrary or capricious exercise of power by the circuit court, operating to the denial of justice, that will induce us to interfere.” We are of the opinion that the court acted correctly in refusing the continuance.
As to the third assignment, that the court erred in not granting new trial on ground of newly discovered evidence, the motion is based upon the affidavit of Bob Hill, a negro, which is vague and indefinite. He states that a colored man came to his restaurant in South McAlester and made statements about the case; "that said colored man was unknown to affiant; that affiant did not make inquiry to his name, not knowing any. thing about the case or the circumstances of the killing, and in no way interested in it, and does not know the whereabouts of said colored man." We do not think the court erred in refusing new trial on ground stated.
The fourth assignment is overruling motion for change of venue. Granting change of venue is regulated by Mansf. Dig. 88 2195, 2196, which are as follows:
“Sec. 2195. Any criminal cause pending in any circuit court may be removed by the order of such court, or by the judge thereof in vacation, to the circuit court of another county, whenever it shall appear, in the manner hereinafter provided, that the minds of the inhabitants of the county in which the cause is pending are so prejudiced against the defendant that a fair and impartial trial can not be had therein.
"Sec. 2196. Such order of removal shall be made on the application of the defendant by petition setting forth the facts, verified by affidarit, if reasonable notice of the application be given to the attorney for the state, and the truth of the allegations in such petition be supported by the affidavit of some credible person."
It thus appears that the application shall be by petition, supported by affidavit of some credible person; reasonable notice to be given to the attorney for the state. In Ourtis v. State, 36 Ark. 286, the court said: "The prosecuting attorney filed the counter affidavits of four persons, in which they sev. erally stated, in substance and effect, that they were well acquainted with Silvia Finch; that she was of bad moral character and unworthy of credit as a witness. Defendant filed no affidavits to sustain her credibility, and the court overruled the motion for change of venue. The statute requires the application for change of venue to be verified by affidavit, and the truth of the allegations thereof to be supported by the affidavit of some credible person. Gantt, Dig. 1869.
It seems that the court below decided, upon the counter affidavits filed, that Silvia Finch was not a credible person, and we cannot undertake to say that she was." In Jackson V. State, 54 Ark. 247, 15 S. W. 609, the court said: “We are of the opinion that it was within the discretion of the court to receive the oral testimony of those witnesses as to facts affecting their own credibility, and their testimony, as set forth in the bill of exceptions, is such as we think amply sup ports the finding of the court that they were not credible witnesses. It follows that the court did not err in denying either of the appellant's applications for a change of venue.” In this case the witnesses, upon examination, stated that they
# had not heard the question of public sentiment or public feeling toward the defendant discussed, and had no knowledge of the same, except what they were told by Mr. Tarter, one of defendant's counsel, and that it was from the information received from him that the affidavits were made.
The court permitted the said witnesses to withdraw their affidavits, and thereupon held the statute had not been complied with, and we think the court acted correctly.
The fifth assignment states that persons of his own race were excluded from the grand jury because of their race and color. If the statement of fact made in this assignment was true, it would be reversible error, but nowhere does the record disclose such a state of facts; and a statement of a fact in an assignment of error which is absolutely false, so far as the record is concerned, is not only illegitimate practice, but deserves the condemnation of this court.
The sixth assignment was the alleged error in excluding from the jury a certain question and answer—as to whether Eliza Dixon, a witness for the government, was a “coke fiend” (meaning a cocaine fiend); and appellants cite Underhill on Criminal Evidence, s 168, in support of their assignment, but Mr. Underhill says: “The habitual use of morphine may be shown, and, if proved, is a circumstance for the jury to consider in determining the mental condition of the accused." Hence it appears that the mental condition of the accused may be examined into, but not a witness. The jury are the judges of the credibility of the witnesses. “And it has been held inadmissible, in order to attack veracity, to prove the bad character of a female witness for chastity, or to show she is a prostitute (Pleasant v. State, 15 Ark. 624), or to prove habits of intemperance, which do not affect the perceptive or narrative powers." Whar. Cr. Ev. (9th Ed.) 486; Thayer v. Boyle, 30 Me. 475; Hoitt v. Moulton, 21 N. H. 586. Evidence of the use of opium cannot be introduced to impair credit unless it be shown that the witness was under the influence of opium when examined, or that his powers of observation or recollec
tion were affected by the habit. Whar. Cr. Mansf. Dig., regulate and direct the manner Ev. (9th Ed.) 384a. Hence the court com- juries shall be cared for during the recess mitted no error in excluding this question. of the court. They are as follows:
The seventh assignment was the alleged "Sec. 2265. The jurors, before the case is error in charging that Berger had the right submitted to them, may, in the discretion of to draw his gun, and, if the defendant press the court, be permitted to separate, or be ed upon him, he would have the right to use kept together in the charge of proper officers. it. In the cross-examination of the witness The officers must be sworn to keep the jury Jones the following testimony was given: together during the adjournment of the court, "Q. At the time the first shot was fired, who and to suffer no person to speak to or comwere in the car? A. Mr. Garvey, Lee Berger, municate with them on any subject conmyself, and Duffy. Q. Berger was leaning nected with the trial, nor do so themselves. with his left arm on the counter? A. Yes, "Sec. 2266. The jury, whether permitted sir; facing the south door. Q. Where was to separate or kept in charge of officers, must he shot? A. He was shot about an inch be admonished by the court that it is their below the navel. Q. The defendant did no duty not to permit any one to speak to or talking to Lee Berger, did he? A. No, sir; communicate with them on any subject conhe did not. Q. Do you know whether he and nected with the trial, and that all attempts Berger were good friends? A. I don't know to do so should be immediately reported by what the relation was between them at all. them to the court, and that they should not
Q. Did you see Berger with a pis- converse among themselves on any subject tol? A. Berger had a pistol at that time; connected with the trial, or form or express
Berger was shot by the appellant, any opinion thereon until the cause is finally and the court probably had in mind the fact submitted to them. This admonition must that the testimony showed that Berger had be given or referred to by the court at each a pistol at the time. We think there was adjournment." sufficient evidence to support the instruction, “Sec. 2281. Where the jury have agreed and consequently no error.
upon their verdict, they must be conducted The eighth, ninth, tenth, and eleventh as- into court by the officer having them in signments were charges given to the jury, charge, their names called by the clerk, and, and were entirely applicable to the testimony if they all appear, their foreman must dein the case, and we might add that no ex- clare their verdict." ceptions were saved to any of them. Appel- "When the jury goes out to deliberate on lant complains in his ninth and tenth assign- its verdict, it is committed to the care of a ments that they do not instruct that defend. sworn officer of the court.” 1 Bishop, Cr. P. ant had a right to act in self-defense, from & Practice, 991. In Hurley v. State, 29 Ark. an honest belief that he was in danger; but | 28, the court said: “That the jury were no exceptions were saved, and no request not sworn in accordance with law, but were made of the court to give such an instruction. illegally sworn: The record entries show We are of the opinion that these assign- | that the jurors were sworn, but the form of ments were not well taken, and the authori- oath administered is not set out in the enties cited by appellant are not applicable to tries, nor in the bill of exceptions. In the this case.
absence of any showing to the contrary, it The twelfth, thirteenth, and fourteenth as- must be presumed that the oath was adminsignments was the refusal of the court to istered in proper form. Greenwood v. State, charge on the law of manslaughter. From 17 Ark. 332.” It does not appear from the an examination of the evidence in the bill of record that any objection was made or exexceptions, we can find no evidence what- ception saved to the officer not being sworn ever tending to prove the crime of manslaugh
as the law directs, but the record does show ter. “It is error for the court to assume that the jury were placed in charge of a facts in an instruction not authorized by the "sworn bailiff.” We are of the opinion that evidence." St. Louis, I. M. & S. Ry. Co. this is sufficient, and that the same presumpRosenberry, 45 Ark. 256. "On a trial for tion will be indulged as to the officer as is homicide, where there is no evidence what- indulged when the record shows that the ever tending to prove a degree of the offense i jury were duly sworn. But this objection below that charged in the indictment, the was not made at the trial, nor was it includcourt should refuse to instruct the jury as to ed in the grounds of the motion for new such lower offense." Fags v. State, 50 Ark. trial, and the first we hear of it is in these 506, 8 S. W. 829. We are of the opinion thai assignments of error. In Atterberry v. State, the court was correct in his refusal to charge 56 Ark. 520, 20 S. W. 412, the court said: on the law of manslaughter.
We hold that it is too late, after The fifteenth and sixteenth assignments are verdict, to object for the first time that a the failure of the record to show that the jury retired from court in charge of an ofjury was placed in charge of an officer sworn ficer to whom the special oath had not been as the law directs, and a failure to show that administered, where it appeared that the dethe jury, when returned into court, were in fendant was present when it retired, and charge of the same officer in whose custody neither asked that the special oath be adthey were placed. Sections 2205, 2266, 2281, ministered to him, nor objected to his tak
ing charge of the jury, and it does not ap- ness McKee the following question: "Had pear that either the officer or the jury was you received instructions that there was a guilty of any misconduct." We therefore are plan on foot to burglarize that house?” Obof the opinion that the assignments are not jections were urged and sustained, and the well taken.
question was not answered. The district atThe seventeenth assignment is the alleged torney, in his opening remarks to the jury, error of the court in not admonishing the stated, in substance, while commenting upon jury as required by statute. No objection the excluded question and proposed evidence was made or exception saved, and we are of of McKee: “If defendant's counsel had not the opinion that the presumption is that the objected, and if the court had not excluded court did his duty, and hence there was no the proffered testimony of said McKee, he error.
could have shown by said witness why the A special brief has been handed to this officers were watching said house and decourt as a reply to the proposition that the fendant and Haney on said night, and that court will not entertain any presumption that this evidence, to which counsel for defendthe officer was sworn as required by law, ant objected, and which the court excluded, and it is insisted that the state must show would have fully warranted all honest men the fact affirmatively. We have already ex- to convict of the crime charged.” “That the pressed our view to the contrary, but, be that district attorney, in his closing argument to as it may, it is evident, under the decision
the jury, made an inflammatory appeal to in Atterberry v. State, supra, that appellant the jury to convict on the excluded evidence, is too late to raise that question after ver- and, among many other illegal and unwardict.
ranted statements, stated in his closing arBeing satisfied that there is no substantial
gument to the jury that defendant's attorerror in the record, we are of the opinion
ney had objected to said testimony, and had that the judgment of the court below was
same excluded by the court, because they correct, and it is therefore affirmed.
were afraid, and because it would have
shown a plot to burglarize said house before RAYMOND, C. J., and GILL, J., concur. they reached it, and would exclude the pre
tense that defendant was taking said Haney
home because he (Haney) was drunk; and TALLY V. STATE.
the further contention that he was gagging
at the door, and defendant thought he was (Court of Criminal Appeals of Texas. June 23,
vomiting; and that the officers knew it be1905.)
forehand, and were watching defendant and 1. CRIMINAL LAW TRIAL ARGUMENT OF COUNSEL.
Haney; and, if the said evidence had not On a prosecution for burglary, where the been excluded, it would have shown a prior only testimony tending to show a conspiracy conspiracy to rob the house by defendant to burglarize as charged was inadmissible, and for that reason excluded, it was error to per
and Haney; and that no honest jury could mit the district attorney, in argument to the
afford to acquit defendant.”. Exception was jury, to refer to the exclusion of the evidence, reserved to these statements, and the court and forcibly state what the evidence would
refused to stop the district attorney and inhave been, had he been permitted to introduce it, and that it would have shown a conspiracy,
struct the jury to disregard the remarks on even though he was challenged by plaintiff's the excluded evidence. Whereupon appellant counsel to state why proof of the conspiracy appealed to the district attorney, and asked was not introduced.
him if he wanted to convict defendant on ex2. SAME-EVIDENCE-ADMISSIBILITY. On a prosecution for crime, evidence of
cluded and illegal evidence; and he refused defendant's intoxication is inadmissible to af
to stop, and continued his remarks on said fect his credibility.
excluded evidence. The court explains this 3. SAME-INSTRUCTIONS.
bill as follows: "The district attorney, in Where the defendant's testimony had not been attacked, nor his credibility assailed, but
his opening argument, did argue to the jury evidence was admitted of his intoxication, a
that the house was being watched, as was charge that evidence of defendant having been testified to by one of the witnesses (J. W. drunk might weaken his testimony and af- McKee), but did not in his opening argufect his credibility as a witness was erroneous, as in violation of the statute prohibiting char
ment refer to the question asked, as shown ges on the weight of testimony.
by bill No. 2. The counsel for the defendBrooks, J., dissenting.
ant, in their arguments, repeatedly called
upon the district attorney to show why these Appeal from District Court, Fannin Coun
men were watching the house, and asked ty; Ben H. Denton, Judge.
him if he wanted to convict the defendant by Henry 'Tally was convicted of burglary,
withholding testimony, and, if he wanted to and he appeals. Reversed.
convict defendant, why did he keep back H. E. Taylor, J. H. G. Lee, and James testimony, etc., and insinuated that he had H. Lyday, for appellant. Howard Martin, testimony that he would not produce, and Asst. Atty. Gen., for the State.
asked the district attorney if he wanted
to convict the defendant on illegal testiDAVIDSON, P. J. Appellant was mony; referring to testimony in bill No. victed of burglary. The state asked the wit- 2. And the argument of the district at
torney in his closing speech was simply mony. In other words, accused had the brought out in answer to the argument right to ask, if there was testimony that of defendant's counsel. The counsel for the could have been before the jury, why it was defendant did not request a charge instruct- not placed there. This, of course, means ing the jury to disregard the remarks of the legitimate testimony. It does not mean illedistrict attorney." This is the bill as quali- gitimate testimony, or such evidence as was fied. The matter referred to, as contained not permitted to go before the jury, even as in bill of exceptions No. 2, is the question a circumstance for the jury to consider in asked by the district attorney, above set out, arriving at a conclusion of guilt. We think to wit: "Had you received instructions that the court erred in permitting this line of arthere was a plan on foot to burglarize that gument, and further erred in not instructing house?” We have held in many cases that the jury to disregard it. Conviction ought where illegitimate argument has been in- not to be obtained in this way. In fact, condulged, unless of a serious character, it will victions should always be predicated alone not call for a reversal, and in quite a num- upon testimony introduced before the jury, ber of cases that it is incumbent on the ac- and not upon that excluded. cused to ask instructions to the jury to dis- The state, without objection, introduced regard such illegitimate argument. This evidence to the effect that appellant bad practice of requiring the accused to ask for been drunk at the theater, and had been put special instructions has been a gradual out of the house. The court limited this growth under the decisions of this court,
evidence to the question of impeachment of since Kennedy's Case, 19 Tex. App. 618. The appellant as a witness. Exception was rewriter is not clear in his mind that this line served to this portion of the charge, which of decisions is correct. It is the duty of the we think was well taken. If it be conceded court, under our statute, to give all the law that appellant was drunk in the theater, applicable to the case; and if illegitimate this is not such an offense as would justify argument is indulged, and the jury are mis- its introduction to attack the credibility ul led, or likely to be misled, against the law the defendant or the weight of his testimony. and the facts, the court should guard against Nor do we think that it is likely that it was this error, as well as any other error in introduced for that purpose. In fact, the which charges are necessary. Be this as it indications are rather that it was intromay, there is no question as to the condition duced for another purpose. It might reflect of this matter under this bill of exceptions. somewhat upon his general standing, but The state had undertaken to prove testimony could not affect his credibility as a witness. which the court ruled out as inadmissible Drunkenness is not one of those crimes recand illegal. Upon the argument of the case, ognized as involving moral or legal turpicounsel for the state went over this matter, tude. The fact of his being drunk at the and informed the jury that, but for the in- theater was culled out and charged upon. terposition of appellant's exception, he could This was a charge upon the weight of the have proven a previous conspiracy to bur- testimony, and that fact relegated to a poglarize the house. So far as the bill of ex- sition before the jury on the testimony ceptions is concerned, it seems that the only which the law does not recognize. Appelattempt to prove any conspiracy or previous lant's testimony had not been attacked, nor knowledge of a conspiracy on the part of the his credibility assailed, and yet the court officers was that shown in bill No. 2. The informs the jury that this testimony may or court held that said testimony was illegiti- | does weaken his testimony before them, and mate, and, in our judgment, that ruling was affects his credibility as a witness. The correct. The evidence was ruled out, and evidence was injurious, and not only so, but yet the district attorney forcibly stated be- the charge is directly violative of the statfore the jury what this would have been if ute which prohibits the court from charging he had been permitted to prove it, and that upon the weight of the testimony. it would have shown a conspiracy. It would The judgment is reversed and the cause hardly be questioned that this was very remanded. damaging, because it was supplying illegitimate testimony, and evidence that the court HENDERSON, J. I agree to a reversal of had ruled could not go to the jury. Yet in the case on the last proposition. the argument of the prosecution this was made to play the part of testimony against BROOKS, J. (dissenting). I do not agree the accused. This was not justifiable under to the reversal, and believe the judgment any circumstances. However, the court says should be affirmed. My reasons are as fol. that this was in answer to argument of lows: counsel for appellant. We do not agree with In the motion for new trial, appellant critthis statement. It is true that counsel for icises the sixteenth paragraph of the charge, appellant asked why the conspiracy, if such which reads: existed, was not proved. This he had the "The statement of the witness Andy P. right to do. If there was anything indicat- Evans, introduced by the state, wherein he ing a conspiracy, he had the right to ask the stated, in substance, that he saw Henry Talstate why it did not introduce such testi- ly at the theater some time before the bur
glary, drunk, and that he put him out of the theater because he was drunk, was not admitted before you as original testimony, but only for the purpose of aiding you in determining the weight and credibility of the testimony of the said witness Henry Tally, and you will consider it for no other purpose whatever."
The testimony on which this charge was predicated was admitted without any objection being offered. If objection had been offered, it would have been error for the court to permit the same to be introduced for the purpose of impeachment, since it would be an effort to impeach upon an immaterial issue. Under the authorities of this court, we bare never held that drunkenness brought about that degree of moral turpitude which authorized its introduction in evidence to discredit a witness. However, the testimony having been introduced without objection, for the court to limit it to one purpose, whereas the jury might have considered the same for other purposes without said limitation in said charge, I cannot see how appellant can complain thereof. Without said charge it could have been considered for all purposes, but under said charge it could be considered only for the one purpose. To this extent this charge is not injurious to appellant. In other words, appellant would have been injured more if the charge had not been given than by its being given. It is a well-known rule, under article 723, Code Cr. Proc. 1895, that a charge which does not injure defendant will not authorize a reversal.
dent in endeavoring to keep defendant's wife from living with him, including what passed between defendant and a third person with reference to procuring a writ of habeas corpus to secure the custody of the wife, living in her father's house; such evidence not being selfserving, but showing defendant's condition of mind at the time. 5. SAME-SELF-DEFENSE-EVIDENCE.
A defendant on trial for murder, who relies on self-defense, has the right to show any fact tending to prove the good faith of his belief that he was in danger, and he is entitled to rely on proof of the desperate character of decedent, and on proof of special acts communicated by decedent to him indicating his dangerous character, but cannot show that decedent told him that he had run away from a place where he had had difficulties with the officers without showing what the difficulties were. 6. SAME-EVIDENCE-ADMISSIBILITY.
Where, in a prosecution of defendant for the murder of his father-in-law, the defense was that decedent was forcing defendant's wife to remain away from him, and the state endeavored to show that the relations between defendant and his wife were not friendly, letters written by defendant to the wife prior to the homicide, showing that their domestic relations were pleasant, were admissible. in re buttal, and as showing the state of his mind with reference to his wife and decedent. 7. SAME.
On a trial for homicide it is error to permit the state to show that defendant, while in jail awaiting trial, was studying law, in order to learn to fabricate a defense. 8. SAME.
Where defendant, on trial for homicide, relied on self-defense, the testimony that decedent, a few weeks before the homicide, looked feeble, and had an injury to his side, was inadmissible, in the absence of a showing that defendant had knowledge thereof. 9. WITNESSES-HUSBAND AND WIFE-CONFIDENTIAL COMMUNICATIONS.
Code Cr. Proc. 1895, art. 774, providing that neither husband nor wife shall testify as to any communications made by one to the other while married, etc., does not render the wife of defendant on trial for murder incompetent to testify that defendant, immediately after firing the shot which killed decedent, exclaimed in the presence of his wife and her mother, "I told you I would do it," the exclamation not being a confidential communication. 10. SAME.
On a trial of defendant for the murder of his father-in-law it was error to admit in evidence a letter written by decedent to defendant's wife, when living with her husband, about a year before the homicide, containing expressions of decedent's good will to defendant, and by the wife handed to defendant, who read the letter, it being a confidential communication by the wife to defendant, 11. HOMICIDE-HEARSAY EVIDENCE.
On a trial of defendant for the murder of his father-in-law, defended on the theory that decedent was forcing defendant's wife to remain away from him, evidence of what defendant's wife stated defendant had said to her on the occasion of a quarrel was inadmissible. 12. SAJE-MANSLAUGHTER PROVOCATIONSUFFICIENCY.
The provocation that will reduce a homicide to manslaughter must arise at the time of the killing, but the jury may look to all the circumstances in order to make out the provocation at the time. 13. SAME.
A husband has the right to the custody of his wife, and her father has no right to attempt to gain possession of her, and, if he does, the husband has the right to use force necessary to
COLE V. STATE. (Court of Criminal Appeals of Texas. June 21,
1905.) 1. Homicide-EVIDENCE-ADMISSIBILITY.
It is not error on a trial for homicide to admit evidence of blood found on the ground where the homicide occurred and of the wounds inflicted on decedent, where the same is pertinent to issues in the case. 2. SAJE-HEARSAY EVIDENCE.
On a trial for homicide, evidence that decedent's wife had stated that decedent had tbreatened to kill defendant was hearsay, and inadmissible. 3. SAME-EVIDENCE-PREJUDICIAL Error.
The admission of evidence, on a trial for homicide, that defendant, a married man, had visited at the house of a woman who had two daughters-one married, living apart from her husband, and one unmarried-and that he had on one occasion gone with the daughters to church, though erroneous, because immaterial, was not prejudicial. 4. SAME-EVIDENCE DEFENDANT'S CONDITION OF MIND.
Where, on a prosecution of defendant for the murder of his father-in-law, the defense was that decedent was forcing defendant's wife to remain away from him, and the state's evidence tended to show that decedent was kindly disposed toward defendant, and had no desire to separate his wife from him, it was error to exclude evidence offered by defendant, showing what he had told others prior to the homicide about his family troubles and the acts of dece