ARK.] CLARK V. STATE. 717 CLARK V. STATE. Opinion. delivered November 2, 1925.. INDICTMENT . AND: INFORMATIONSTATUTORY , clumE.-7-The general rule is that an indictment upon a statute must state all the facts and circumstances which constitute the statutory ,crime,, so as
to bring the accused within the provision of the statute, but it is • generally sufficient if it contains the substance thereof. , 2:. goAncIDE—muRDER DEGREE—INDICTMENT. AD indict-1.ment charging that defendant and: others named' Wilfully ; and feloniously killed another,; While engaged in the 'commission of the .crithe of robbery, charges the crime of murder in the e first degree, under Crawford &• § 2343. 3.. COURTS—SPECIAL TFRM OF COURT 'TO TRY PERSONS IN JAIL.L--Craw-: - . ford & MoSes Dig.,. §§ 2218, .2220; relating to calling . special terms to- try persons in jail; hld complied with. 45 " CRIMINAL LAWPETITION FOR CHANGE OF YENI.TECREDIRILITY OF AFFIANTS.—In determining the credibility and means of hnowl-•edge'of the stipporting affiants on a Metion for a change of venue, the court was authorized to inire, 'riot only as to whether the affiants'had sworn'or Were 'likely to Swear falsely, but into:their
motives, intent, and feelings,' and their opPortunitie's and' Means Of'knowledge as to exiiting :prejudiee i in • order that the court Might . determine whether they were credible perSons' Within •the statute: 5. CRIMINAL LAW—JUDICIAL NOTICE • L —The cOhrts take judiciarnotice of the division of counties into toWnships. . ,CrinuINAL LAW—PETITION FOR CHANGE OF . VENIJE DISCRETION OF COURT.—ID a , murder : Prosecution, the court . did not ,abuse.its dis-cretiOn in overruling defendant's Motion for a change of :venue on the ground, of prejudice :of , the inhabitants, under , Crawford & Moses Dig, § 3038, , Where . su , p . porting a . ffiants wer . e sent out for the' purpose of being able to !support defendant's , petition for change of venue, and knew very few of the persons to , whom they ,talked, and were necessarilY hurried in their investigatidn, and 'henee Were not "credible persOnS" within the me , aning „ of , the statUte. HOMICIDE—SUFFICIENCY Op EVIDENCE.-7In a prosecution for mur-der, alleged to have been committed while robbing ,a bank,,,under Crawford & Moses' Dig.,'§ 2343, evidence fteld , suffieient to' warrant a yerdict of guilty of murder in the first degree. HOMICIDE—MURDER . IN FIRST DEGREE—,VALIDITy. OF,STATUTE.—.-Stat-utes, which enact that murder committed in ,:the . perpetration of robbery, burglary and other crimes shall be deemedAnurder in
718 CLARK V. STATE: [169 • the first degree are valid enactments and do not violate any provision of the State or United States Constitution.
9. IlomICIDE—EvIDENCE.--In a prosecution for murder while engaged in robbing a bank, evidence held to warrant the jury in -• ' finding that-deceased was killed by defendant arid his confederates in immediate connection with the robbery, and before 'their • flight, thereby justifying a verdict' of guilty of murder in the first ,degree. 10. HOMICIDE—EFFECT OF VERDICT.—In a prosecution'of defendant for , murder while engaged in robbing a bank, the court properry imposed the death sentence where the jury were instructed•as to •their right to ,reuder a verdict of life imprisonment, under Craw-ford & Moses' Dig., §. 3206, , and, yet returned a verdict of guilty of murder in the first degree as charged in the indictment..
11, HOMICIDE—REFUSAL TO CHARGE AS TO LOWER DEGREES.—In, a prosecution for murder in first degree shown, to have been committed while defendant was engaged in robbing a .bank, refusal. to charge as to murder in the second degree o wa's not . erroneous. 12. CRIMINAL LAW—DUTY OF COURT TO• INSTRUCT JI.nty.-7-1Jnder Const., art. 7, § 23, and at common , law, , it is' the duty, Of the court to in v, struct the jury upon the la:w, and the jury is required to accept the ruling a,n d be guided by it. 13.. CRIMINAL LAW=POWER OF JURY.—The jury may disregard the
evidence and acquit a person whom the evidence shows to be guilty of the crime charged in the indictment, and may disre-. gard the instructions of the court and find for a lower, de • g • ree • ' Of' homicide' than Warranted bY the evidence. 14. CRIMINAL LAW—INSTRUCTION—INVASION OF JURY'S PROVINCE.— • Instructions requiring the jurY to donVict or aCquit the defendant of murder in the first degree, and no Other offense, is not violative of Const., art. 7, §, 23, as' invading, the prOvince of the jury' or as a comment on the evidence, where there was an • 'entire absence of evidence tending to prove any grade of homicide other than that of first degree. 15: URIMINAL LAW—JOINT INDICTMENT—ORDER OF TRIAL.— W nere defendants, jointly indicted for murder, elected to'sever for';trial,
CrawfOrd & MoseS' Dig., § 3140, requiring in such case that the defendants shall stand for trial in the order in which their names appear upon the indictment, is directory merely. „ 16. INDICTMENT AND INFORMATION—COPY OF INDICTMENT.—The tact • • that the copy of the indictment served on defendant did not contain the name of the foreman 'of the grand jury and date of filing
• 'was 'immaterial where it was complete in all other respects, and the defendant was informed of the charge so that -he might prepare for trial. '
. r any , lower degre . e of homicide .
:ARK.] CLARK V. STATE. 719 CAIMINAL LAW—WAIVER OF RIGHT TO COPY OF INDICTMENT.—The privilege of having a copy of the indictment served on him' was waived by the defendant Nihere he filed a motion 'to quash the indictment and one to change the venue.
HOMICIDE—MURDER 'IN COMMITTING ROBBERY—DEFENSE.—The fact that defendant, in perpetration of- robbery, had no intent , to commit murder would be no defense, under Crawford & ,Moses', Dig., § 2342, providing that all murders committed in perpetration of rebbery, ete., Shall be murder in the first degree.
• 1 . Appeal from Benton . Circuit Court ; W. A. Dickson, Judge ;, affirmed. . H. Spencer and Vol T. Lindsey, for appellant; • '11: W:Applegate, Attorney General, and Johnl. Ccir-•teo, •-ASsistant, for appellee. • ' • ' 'HART, J. Tyrus Clark appeals from a judgment of cOkriction of murder in the first degree . where a sentence of 'death was pronounced in conformity with , the verdiet of the jury trying 'him. The body of the indictment is as follows . "The grand jury of Benton •County, in the name and authority of the State of Arkansas, accuse John • .Burchfield, Boyd jewel, Elva McDonald and Tyrus Clark of' the crime of murder in the first degree, committed as follows; to-wit : „ " The said John Burchfield, Boyd Jewel, Elva McDon-,ald and Tyrus Clark, in the county of Benton and State of.Arkansas, on the eleventh .day of June, 1925, then and there . being, and while acting and conspiring together , and having a common purpose and design to perpetrate •the:crime: of robbery and effect their escape,. and .while eecuting the purposes, of said conspiracy aforesaid, did 'unlawfully, feloniously ,and violently take from the Bank pf Sulphur Springs; a corporation, situated and.doing a banking business in the town of Sulphur Springs, in the county and State aforesaid, the sum of nine hundred ,($9o0), dollars, gold, silver and paper money—current , and lawful ruone.y of the United States of America; tbe , property , of said. Bank of Sulphur Springs, a corpora-tion, and of the value ,of, nine hundred. ($900);,dollars,
720 . CL 'ARK V. STATE. [169 in.the.presence of One :S. 0. Whaley, the lawfully, authorized and acting cashier of said Bank of Sulphur. Springs, a corporation, and having the care and control of :said sum of Money aforesaid, forcibly and against his will and by intimidating and putting fear in him, the ' said S. 0. Whaley, and while PerPetrating said crime.of robbery as aforeSaid, feloniously, wilfully, and: with malice aforethought, and with premeditation and deliberation did kill and murder one Lou Stout, with a 'certain gun loaded with gunpowder and leaden balls- and then and there ' held in the hands of him, the said Tyrus Clark; the said Boyd Jewel, John Burchfield and Elva McDonald 'being then and there present aiding and .abetting,and consenting to aid 'and . abet the said Tyrus Clark in the commission of said homicide; from the 'effect of wounds .so inflicted, he, the said tou iStout, died on the 12th 'day of June, 1925, against the peace and dignity of the State of Arkansas." The general rule is that . an indictment upon a statute must state 'all the facts arid circumstances which constitute the statutory offenSe so as io bring the accused within the provisions 'of the statute ; 'but' it is ,gerierally sufficient if it-contains the substance thereof: .• • The indictment in the 'present case "was returned under§ .2343 of Crawford 8i Moses' Digest, arid every elenient 'of murder in the . first degree as defined ;bY the statute is' alleged in the indictment, and 'the 'court preperly ruled- 'that' the indictinent 'charged' the crime *Of murder in the* first degree and ,put the defendant on trial for 'that offense. The indictinent fully charges' the off erise of murder in the'first dekree by alleging in proPer words that, Tyrus Clark and other named person§ Wilfully and feloniously killed Lou Stout while' 'they were ' engaged in the 'commission of the crime, of robbery: See HotrY v. State,151 Ark. *620; and Kelly'v. State, date p. 289.. •'It is claimed by. counselfor the defendant that*the cOurt should have qua-Shed the' indictment because the defendant was tried at a 'special term of the court which was not called as provided by law:
ARk.] CLARK v. ;STATE. 721 A call for a special. term of the -court tO be held in Benton County on the 29th day of June,.1925, 11,. ,aS•signed 'by . W. A. Dickson, judge of the Fourth JudiCial Circuit of Arkansas on June 18, 1925, and the call . Was entered of record. The call recites that it had been certified to the undersigned jUdge that John Burchfield, Boyd Jewel, Elva McDonald and Tyrus Clark• were—confined in the • Benton -County jail, charged with the crime of murder in the first degree for killing Lou Stout on or about 'June 11, 1925, and for the robbery and . burglary of the Bank of Sulphur Springs, Arkansas, on thosame day. The call further recites that it is necessary andoxpedient that a special terin of the circuit court of - County - be Called for the purpOse of investigUting 'and disposing . of said charges, and it appearing . that no teri'r of the circuit court of the FoUrth Judicial District in any county convenes prior to . the first Monday in August, 1925,: and that the regular term of 'the Benton- Circuit Court•cOnvenes on the third Monday in September;1925, ' it is by the undersigned judge on 'June 18, 1925, .órdered that a special term of said circuit . Court be convened and held in the circuit court roorn BentonVille,.' Benton CoUnty, Arkansas, on: Monday,' ',Time' 2'9, 1925,''at ten O'Clock A. yr. • for the purpOse Of inveStightini and 'dis-posing of said charges in the Manner prescribed-by '10. It was ordered that the' sheriff 'Summon a:grand jou of sixteen qualified electOirs -to attend 'at said special fer:M Of the court, that' the order 'for tfie call' ib'e* -enteted 'Of record, 'and that a certified copy be served upon the 'prose-Outing attorney'of the Fourth judicial Circuit. The.order \Vas entered upon the records of the circuit .cOUrt, :afid the record also showed that', the prosecnting. 'attorney acknowledged- the service of summons 'upon:him of the copy of the order Oil June 18, ,1925. The Certificate -0f the clerk shows that the call Was placed 4. 0n- the' record by . him on June 18', 1925; together with the ac.knowre'dg'- 'ment of service by tbe prosecuting'attorrieY. . Thus if will be seen that the special call was:Int-We by 'the circuit court under the . Provisions 'of '2218 of
722 CLARK V. STATE. [169 Crawford & Moses' Digest, proyiding that the judge of the circuit court.may :at any time hold a special term for the trial . of, persons confined in jail by making out a written :order to that effect and transmitting it to the clerk, Who shall enter it on the records of the court. . Section .2220 provides that the judge ordering the special terra ,shall cause a notice,thereof to be ,s6rved.on the prosecuting attorney' of the circuit ten days:before the.coMmencement of such special term. . • The•prerequisites of the statute were complied, with in the case at bar, and the requirements . .laid down by this,court as to a s call for a special term to try persons •in jail were complied with. Beard v. State, 79 Ark. 293; Hill v. 'State, 100 Ark. 373; Reece v. State,118 Ark..310; ,Bell v.:State,120 Ark..530; and Harris v. State,arite p. 627. • The next assignment of error is that the court erred in refusing to grant the defendant a change of venue. •The defendant filed a motion, tor a change of venue on the -ground that the minds of the inhabitants of Benton County 'were so prejudiced against him:that a fair. and , impartial trial could not be had therein. His, Petition was duly verified by his affidayit,:,and the affidavits of two qualified: electors, actual residents of Benton ,C.cumty and pot r,elated: to the defendant in any way were :also filed ,as required by § 3088 ,of drawford & Moses,' Digest. . The statute requires that the petition, be supported 'by th,c. affidavits of two credible persons. This court has •,held that the supporting affiants are not credible persons within ,the meaning of the statute where they do not possess the necessary means of knowledge as to, the facts to, which, they swear. In discussing the question in Price v. State, 71 Ark. 180, the court 'said: "It may happen, and does frequently happen, that the ,line of demarcation between evidence as to the cred-•ibility and ,of :sources of information is difficult to be observed. Therefore, it is necessary that the examination of such witnesses should be set forth in detail in the bill of eXceptions„ , Otherwise, the appellate: court ,must take the examination to have been made within the
CLARK v.. STATE.' 723 Proper limits, and hold that 'the ruling of the trial' court is correct. This is the status• of this •articular; Contro-versy, .and undet the rule we must hold that there was no error:in this . respect. A witness may be truthfid and intelligent in the ordinary acceptance' of these terms; and yet, on examination before the court, it may be made to appear, that he has made' his affidavit .carelessly, without really possessing any definite and :reasonable informa, tion as to thelrniblic feeling toward' the defendant . . • Then the credibility of the witness is involved, for there is little difference between the effect of faIse testimony .and testimony recklessly given.". • . • . : t: In deterniining the credibility and means of .knowl-. edge of ' the'. supporting ;:affiants, :the . Circuit;'court was authorized to inquire,.not only as' to' whether the affiants had sworn,,ot were likely -Co swear falsely ;- but-into theit motives,' 'intent, -feelings and their' oppOitunities 'and means:of knowledge as to , the existineprejudiCe, 'in order that the; court : Could determine' Whether the-y‘ were' credible persons under the statuie in -matters of this'nature. '• It cannot be said that the action of' the court in over-ruling' the -defendant 's motion' fot •a change -of. Venue was without 'legal' evidence to support'. it: • In' this' connection it May! 'be stated * that Benton County is a large-county; containing 'thirtY-f our 'townships. : Our Cori g titntion pro-'videS'for- the' 'division of 'the State into counties and. the boundaries' of 'the counties 'to be fixed by the Legislature Under- 'the restrictions provided for' in the' Constitution. Mttle. v. : Stuart, 34 Ark. 224. The diVision'of-conntie into • townships is 'made necessary by the Constitution:of the State.. St. L., I. M. & S. Ry., Co. v: State, 68- Ark.•561. These cases also hold that : the court' will take..judici'al notice of these facts. 'The Bank of 'Sulphur 'Springs in; Benton County, Arkansas; •was robbed; on: thel1th day of June; 1925. ,,and Lou Stout was killed while the robbers- were: atteniptiiig to escape. -A 'call for T a sp'ecial term' of the • court to be convened 'onf the 29th dar of June; 1925;- Was • gnade .by 'the.- circuit judge • on June 18; 1925.; 'The . circiiit; court
724 'CLARK V. STATE. [169 convened pursuant to the call, and the grand jury returned' an indictment against the defendant and others on •the 30th day of June, 1925, charging them with the murder of Lou Stout. On the 7th day of July, 1925, a day of said special:term, the defendant .filed a petition for a.change of venue.. . • Earnest Poe and W. H. Harris were sunportinz affiants to hiS.petition. According to their testimony, they . were employed by an. attorney for the defendant to travel o-c.r •er Benton County to ascertain the condition of the minds of the inhabitants as to prejudice against . the defendant. They started on their investigation on the 4th day of July, 1925, and Spent three days in traveling over the county. On the 7th day of July, 1925, they were . interrogated in open-court as to -the result of their investigation and made a detailed statement of the various townships which they visited, and what the Inhabitants they saw there said about the, feeling against the defendant on account of the alleged killing of Lou. Stout and the robbery of the bank. ,It is • true the witnesses. visited a good many townships -in the county; but, under the circumstances, , they • w6re necessarily •urried • in their investigation.- They adnritted that they knew very few of the people with whom they-talked. They were sent out for the very pur-. pose of being able to subscribe to an affidavit of the defendant for a 'change of venue as supporting affiants. The court was justified, under the circumstances, in finding that, when their feelings, motives, and opportunities for finding the true state of mind of the inhabitants were considered, they were not 'credible persons within the meaning of the statute and :the rule above announced. The court might have thought, when their testimony and the surro.unding circumstances were considered together, that they simply found an excited feeling among the people they talked with on account of the crime itself, and that no opportunities under the circumstances were given the Supporting affiants to ascertain the state of mind of the inhabitants of the county as a whole with regard to
ARK.] CLARK N. STATE. 725 the 'existence of prejudice against the defendant. fience it cannot . be said that the circuit court abused. its discre7, tion in overruling the motion of the defendant. for, a change of venue. Dewein v.. State, 120 Ark. 302, and Williams v. State, 162 Ark. 285. • The jury returned a verdict against the defendant, of guilty of murder in the first degree as charged in the indictment. •. . S. 0. Whaley was the cashier of the Bank of Sulphur, Springs, Benton County; Arkansas, on the 11th day of June, 1925, when 'the bank was robbed. According to his testimony, about ten,minutes before :noon:on the day in ,question, he was . in.the directors', ,room just back of the main room of the bank with a customer. He. was just, getting ready to go to dinner, and; as lie walked , to the door leading into the lobby With the customer, Burchfield drew ,a pistol on them and held them up. Burchfield then turned them over to McDonald, his confederate, who held a gun on them. Burchfield then Went back into tlie vanft and took the Money' out of the safe'. lie then made the 'cashier and the customer go back in' the vault and. slammed the door on them: The rObbers took $933 out of the safe of the vaiilt. Clara Abercombie, assistant cashier of the b'ank; was the next witness for . the State...' According to her thsti-: monY she Was behind the fixtures and looked up and saw two men enter the bank. She knew just what they Were and Walked out past them. She heard one' of theta SaY, "Let her go." She walked:up the street to Mr. Stotit's store and told him about the robbery. Stout jumped up and said, "Where is my pin'?" When Mr. Stout got his gun she pointed out a car to' him and told him that' Shej had passed it on her way to the store. There Were -tWO Men in the' car. The witness did not know them' at the time, hut has since learned that Burchfield and McDOiiald were the men who came, into-the bank and that Boyd Jewel and Tyrus Clark Were the men who *stayed With the car. When Mr. Stout and tlie witriess looked out, she pointed out the ear to him; and they saw two men coming
7'26- CLARK V. STATE. [169 from : the bank towards the car. Mr: Stout said, '.They have got :the money.' ?, He then pushed open the door of his store and said; "Hold up, you fellows !?' then the Men in the car commenced 'shooting and instantly the' glass began to fall. The front of the store was plate glasaand it.began to: faif.just after the' shots were fired. Mi. Stout then eornmeneed : shooting at the robbers.,and, fired five shots at them. The first shooting came:from the 'ear.' ; • •-• On croSs-examinationi the witness told the jury that Mr.' Stout was shot befor6 he fired his gun.- The men weret-Still-shooting when they ran away. ' 'k son of the deceased testified that he : saw the de fendant' in :the baCk Seat of the car and snw him-draW a shOtglin in the direction'of 'his father 'when he opened the'dbOr: witngses teatified 'that : the Men in the'car wefe ShOOtillik at Mr SfoUt.' Mr. StOut died as the result of hiS WOunda '. BefOre his deathhe told hiS wife and other persens that the r'ob bei'g fired at hiin firSt, and that . he shot f' ive tithes at then]. • . : ; • -, atter t' hey . shot him. • • • , Boyd Jewel was also . , , a witness for ;the °State. According ,to his. ;testimony, .John Burchfield; El.va., .Mc-rionald,,Tyrus, Clark and,.himself , left ,Oklaliorna for„ the: p,urpose of robbing the bank at Sulphur Springs in B,en- t,o n Connty, ; Aransas. They had two double,barrel shot- 4 I guns, a pistol, and two twenty-two rifles. McDonald and Burchfield went into the bank and robbed it. * Two shotgims and one rifle were left in the Car with, the :witnes' s, and Clark., , :Clark was to ;stay in the car and use f,he gun, from the,,,outside if necessary. The witneSs was to stay at:the wheel and take care of the car. Clark was the one who ,killed Lou Stout. , ThQ defendant was a witness for himself. He. admit-ted,that he went with the persons referred to above to. rob the bank.at Sulphur. Springs ; but denied that he shot Lou, stout, or -that he intended. to 'shoot any one when
ARK.] CLARK V. STATE. 727 they went to rob the bank. ' He said that the gun he held would not pull off; hut that he did not know what ;was the ,matter, with it. _He :admitted picking up the loaded shotgun', hut denied that he attempted to .,shootr. Stout.. During the shooting the defendant was \hit three times. The witness said that he was left out there with the car to help carry out the robbery, but did not intend to kill any one. He intended to see that they got the money and e'scape, but did noi intend to . kill anY one to do so. The Understanding was that the 'witnogs , was 'to drive the Car away. The evidence for the' State, 'if believed y the jury, was sufficient' to warrant a verdict of guilty of murder in the firSt . degree. The indictment 'against the defendant was returned under § 2343 of . CrawfOrd & Moseg' Digest. It provides, among other things, that all murder which ; shall be committed in the perpetration of .arson, rape; robbery, burglary or larceny shall be : deemed, raur-del-in the first degree. The' evidence for the State shows, and the defendant himself admits, that he and his .coni-'panions coii§pired to rob the Bank of Sulphur Springs, and the evidence shows that . the 'death of Mr: Stout , re-suited froni gunshot wounds fired ,by .:sonie 'of the party while in 'the proSecution of the comMon object. , 'Thdeed, smile' of the eVidence for the State shoWs . that the , shOts which killed'Mr: Stout were actually fired by the defend--ant. Be that . as . it may, he was present at the' time the -shots were fired; and 'admitted that'he was-there fO gee that his 'companionS, who went into' the bank for the purpose of' robbing it, , should .get awdy . with the money they secured. Under such circumstanceS each one Of the paity would be responsible for every thing done which followed directly and immediately in_ the execution of the cominon purpose as one of its probable and natural consequenceS. Besides, this' killing done under 'such circumstances is made by the express terms of the' statute Murdeiiin i the 'firstdegree. ' - '; , The general rule is . . that statutes which enact that murder committed in the perpetration' of 'robbery, bur-
728 CLARK v. STATE. [169 'glary and-Other crimes shall be *deemed murder 'in the first ddgree are valid . enactments, •and are not in vidlation of *any provisions of State ConstitutiOns or the Constitution of the United States. Hen,ry v. State, 151 Ark. 620 ; v. State, aide p. 289 ; Wharton 'On Homicide; • 3 .td..p. 186 ., §126, and. cases cited, and Michie on Homicide, p: • '120. • . It cannot be said that the evidence .is insufficient to justify the. verdict of mnrder 'in the first degree, becanse it was not done until after the confederates 'of the defendant had robbed the bank and. left it. • ' It is true that the shooting did not occur *until after Burchfield and McDonald had left the , bank, •but it was 'done ?before they got into the car, which was waiting for •them, and apparently was done for the purpose . of preventing deteetion and• escaping. It, was part •of• the continuous scheme to rob the bank and , escape , with the pro-,ceeds. of the robbery. The charge was murder committed in the perpetration of, robbery, and the killing occurred just after the robbers had left the bank and bef.ore .they.had gotten. into the , automobile which was there for the purpose , of , enabling them to. escape. . It could not be ', said that-the robbery was consummated until at least the robbers had,loft the .scone of their opera.tions— It was •part . of their . scheme to• have an automobilo waiting for them. -. Two of the persons engaged in the .perpetration of the..robbery were to go into . the Joank and get the money, and two of them were to stay in the automobile .and prevent any• One from interfering in the actual rob-bery. • Then the four of them would leave -the scene of the robbery in the automobile. The jufy was justified in finding that the robbery was not consummated, until the four of them .had . gotten in the automobile and left. the . scene of the robbery. Therefore, the jury .was warranted •in finding that Stout was killed by the 'defendant 'and . his confederates in immediate connection with the robbery and before their flight, and under the statute the defendant was guilty of murder in tbe first degree.
ARK.] CLARK V. SIAM. 729 The-jury was instructed as to : its rights to. render a verdict of life imprisonment under ,,§ 306 , of Crawford &, Moses' Digest., jienc.e it may be said* that the ,jury iniOrmed 'in the matter, and yei ‘retUrned a v. er-, diet of guilty of mUrder in the fi , rs . t degree as charged 'in 4-4e ' indictruent. . : In shch a case:the law fix6i the 'pm.rish- ment at death kallen v. State, ,.156 'Ark. 148. The result of our Yiews is that 'the verdict was supported b'y the evidence, and *the CoUrt , properly ithposed 'the 'death sentence. , The next assignment of error is that the court erred in refusing to charge . as to murder in the second , degree or, any lOwer degree of . homicide. We have just set out the substance of :the: evidence for the State and, for the defendant, and need not ,repeat it here. :It is sufficient.to say that . there is nothing in , the evidence to warrant:the jury, in: finding the defendant guilty of a lower degree of homicide than murder in thefirst. degree. Thig court has repeatedly held that where:the indictment charges murder fir the first degree and:the undisputed . evidence,shows that the accused, if guilty at all; is guilty of murder, in the first: degree,, then it is not error for the eourt to refuSe to give instructions authorizing the jury to return a verdict of guilty of one of the lower degrees of homicide. , , The reason is that, if there ,is no eyidence to establish a„ lower. degree ,of homicide than murder, in the first degue,: the court in properly giying the law,must of necessity determine -upon whether, there is any evidence at all to justify a particular, instruction; and it is the duty of :the jury to take the court's exposi: tion of the law. Jones v. State; 52 Ark. 345; king T. State, .117 Ark. 82; and Rogers v: State, 136 Ark. 161, and cases cited: Therefore, we hold that the court properly declined to give the jury instructions as to any lower, degree ,of homicide , because there was no evidence upon which to predicate them. 6
730 CLARK V. STATE. [169 • 'Itis earnestly insisted that the court erred in giving instruction No. 1; which reads as folloWs : • "The defendant is Charged in the indictment With the Crinte 'of Murder in the firstdegree, andto this charge he has interposed his plea of not gUiltY, and this fOrnas the liS- Ste you are to . determine ' You mn.st'COnviet 'dr neqUit of murder in thefir4 degree and no other Offense.'; Counsel, for the defendant chiefly hase their conten-, tion upon § 3205 of Crawford & Moses' Digest. This section was a part of the act of December 17, 1838, :defin-ing Murdéi. It provides that the jury shall'in' all cases Of ,.niti-der,' upon the convietiOn Of the ace-Used,' find' bY their' verdict' whether he be' guilty Of Murder the firSt oF :seciind degiee. Ilenee it is Contended that the ingrUC tien in question . is pereniptorrin its nature, and violates' §'23'df-artiele 7 of the Contitution, which provideS'that judgeg• shalt not charge juries With regard to , Matters of fact, but shall declare the laW. :• J is • contended that the instruction did not leave the jury tree ,to deliberate and fix the degree of'murder as conteniplated by the statute: It is insisted that to tell the-jury:that they Must find for inurdeiin the firstdegree or nothing was to withdraw the point from the jury and decide it as a question ! of law. • It is' true that' the Supfem'e' CouttS; Of the States'of Penn§YlYania: and , • of Ndrth Carolina have decided that 'gfatute in Oh& State, Whieli iS , similar -CO Out. own, bY ifg1 terins COnfel's the' duty . updn the jury td determine the' degree of the' Murder, and that it cannot be taken frOnYthern by the court. Lcine v.' Co*maTiw'ealth; 59 'Pa. St. 371; and State v. Gadber6 (N. C.), 23 : 5. E. 477k ThiS holding, hOwever; is contrarY tb the yirigtt , of authority as will be seen by the citation of . cases in a note to• 21 A. LI R. 'at page 619.' It is there stated'that, in the 61*i-ice 'of evidence of a •loWer grade of homicide' than that Of which the aceused is fOund to be guilty, he is; by the weight of authority, not entitled to a new trial beCause
ARK. ] CLARK. V. STATE. , 731 of. an instrnction .to , the effect that he shonld .be l found guilty of . the higher degree or found not guilty. • Among the numerous easeS in sUpPort of the tekt there cited is that of Speirf v. United States, 156 U. S. 51; in which the whole subject was thoroughly considered iand the authorities exhaustively revieWed. Judge HARiArv his strong characteriStic • ix* Wrote the opinion- of the majority, and an able'disseriting opinion :Was Written by Judge GRAY. In the first place it May be said' that. the Supreme Courts' `of the States of : North:Carolina . and. Pennsylvania have , attributed to its Legislature a Whollr different ptirpose idenacting a statute like the one tinder consideration than that given by our' own Court.' '- This cblift has rePe' atedly . held tbat the stainte qUiring .the jury t6 find the degree:0'100er WaS pasSed for the pirfpose of preVenting the acCused' from being sentenced for Capital Punishment 'without a special finding Of the jury of , Murder in the' first degree. , The . reaSOn iS that t4'e tch..degtees 'of murder .arenOt distinct offenseS, and no distinetion as to the degree is made in Charging the Offense. SO 'that, if the : jury fails ,to find * by , itS'ver-diet the degree of guilt, it cannot be ascertained by Hference to the:indictment. Hence it has been held that where a jrity returns a verdict of gnilty of murder as'eharged in the indictment, sentenee fOr murder in the firkf d'ekree canncit be pronounced. Thoimpson Shite; 26 Ark: 323; ir. Sttte, 56 Ark: 8; and Bditics Stdre, .143 'Ark. 154. ' 'In this eonnection it may be stated thatUnder 'section of the statute a perSOn charged With niurd6r in the : first degree may : be convicted of any lOwei'degfee of 'criminal hdmicide. • Crawford & 'Moses' Digest, § 3210. It is manifest from' our 'previous decisions'on the.stbject that this section of the statute was passed for 'the purpose : of 'enabling tbe jurY to convict the defendant , of' A lower degree of homicide where the—proof fails to t sustain •the charge of the higher degree, but does support a verdict of guilty of the lower-degree.
732 CLARK V. STATE. [169 • Under the provisions of our Constitution above referred to as well as under.the 'common law, it is the duty of. the . court to ..instruct the jury upon the law, and it is the duty of the jury to accept the . ruling and be guided by. it. As stated in jones v. State; supra; the trial court should in no Case indicate an opinion as:to what the.facts establish; : but in properly giving' the law , the court must of necessity determine whether there is any evidence .at all justifying a particular instruction. The rights and power of juries, in 'criminal cases should.not be confused. Undoubtedly it is within the power of a' jury tb disregard th,e evidence and acquit persons whom the evidence show to be guilty.of the crime 'charged in the . indictment. It is also true that a . jury might . disregard the instructions *of the nourtr, and find :for a lower . degree pf homicide than that Warranted fay the evidence, 'and the 'State iiaye no remedy. This was , 'Pointed. out by ..Chief Justice NGLISII in Alleh v. .State, 37 Ark. 433. In that cas,e the 'court recognized that 'a ..person. charged with Murder in th:e first. degree might . .be convicted of , a lower degree of Critninal homicide, though the charge , be . murder in the first degree by.pOisoning. Thulearned judge said that a jury , would sometimes yeturn a. ,verdict for a lower. degree , of homicide under an indictment for one. ;of the specific. statutory,marders .inthe .first degree, and the. State had no rpney.j In, such case no. new trial can be granted to the State,-and,,if the judgment be arrested, the verdict is nevertheless! .an. acquittal of any degree higher than that, for, which the verdict is rendered. Continuing . the.learned . judge said: . ?Until the Legislature shall think proper to enact that, upon a .chargu for murder . perpetrated .by means of poison, etc., the jUry must find the accused guilty of murder in the first. degree, or. acquit him, we know of no iremedy. except that of appropriath chargeS to tlae juries by the circuit. judges." . The same question was finder consideration in the case of Fagg v. State, 50 Ark. 506, in which it was . said
ARK.] CLARK v. STATE. 733 that where the evidence and the instructions of the cOutt demand a verdict of murder, but the jury finds man-slaughter, there is no alternative but to sentence the prisi Oner accordingly. In discussing the question, 'Cliief Justice Comimu.. said: . "The principle of those cases is that the court ° cannot withhold from the jury the 'Rower to return , a verdict according to their will for any grade of the 'offense charged against a defendant.. The courts can only in-, struct juries as to their duty, giving them in charge the law•applicable to the facts and no other.. If there is no evidence whatever tending to establish a lower grade of homidide 'than murder in one instance, or voluntary than-s'laughter in 'another, the conrt . should ,decline to give tO the jury directions as to any lower . grade. df homiCide .(13:ento :n v. State, 30 Ark. 328 v. State, sup.), and it, is ihe jury's duty to take the court's exposition of the law as that applicable to the case: . .But the court dannOi direct a verdict for . the higher. offense nor restrain the jury from. rettrning it fOr the lower grade. ., &cite, 43 Ark. 289; Adams., v. State, 29 Ohio St. 412." - Thus it will be seen that this eourt is committed to the doctrine that it is the duty of the.court to declare the law, notwithstanding the jury has the power to disregard both the evidence and the•instructions of the court. A careful examination of the record, in this .case• shows that there is an entire absence of evidence tending • to establish . aily grade of • homicide other than that , of murder in the first degree committed in the perpetration of robbery. If there was a failure Of proof . as. to murder in, the'first degree touching the robbery, there was alike failure 'of proof a.s to the evidence necessary to establisli .any other grade of homicide. • An : instruction like the one under consideration is not an invasion of the ,prov-ince of the jury ; nor can it be regarded as a comment upon the evidence. To say that certain facts, if believed, constitute an offense of one degree, and no other 'or less
734 'CLARK; V. , STATE.. [169 degree, is no comment on the evidence. The instruction simply declares the law upon the facts as the jury may find them. , , • • . Other instructions fully define the • crime of murder ii the . first degree committed in the perpetration of rob-berY, and the court in the preserit instruction, as well as in all the others given to the jury, left it to them to say whether the , evidence Warranted, a verdia of , guilty , of murder in the first degree or an. acquittal. It has been well said that under such circumstances the responsibil: ity of the verdict is not on the CoUrt and jury trying the case, hut on the law. In the case 'of Sparf v. Urtited States, 156 U. S. 611., it was urged that an act of COngress prOVidifig ; that in all 'crinrinall Cases the defendant may he foUnd guilty of any , offense, the commission: of whieh is necessarily in: elu • de • d • in that with which he . ,is Charge,d in . the indictinent, prevented .the court 'from givirig ap inStructiOn like the one under consideratio • n. T • he c • o u • rt held to the coritiarY on the ground that in criminal CaseS it is compeft ent for o • the court to instruet the jury aS to ;the legal Presumptions arising from a 'given state of facts; tut that if 'may not, by a peremptory instruction, reqirire the jury tO tho the accUsed guilty of the offense charged, riOr of any . offense less 'than that charged. The 'court expresSly held , that 'On' the' trial in a court 'of theUnited States of a. person accnSed of coMmitting the drithe of ninirder; if' there be no &nee uPori• Which the jury can properly firid-the defend-ant' guilty Of an offense included in or less than' the one Charg,ed, it iS not error 'to iriStruct them that they'Cannot retdrii a"verdict' of guilty of marislaughter; or of' ahy offeriSe less than the one Charged; and-that, in such'ease, if the defen'dant•Was not gdilty of the offense Charged, it is the'duty of the jury"to return a verdict of•not In concluding an extended' review of the authorities mi both sides of the question at p. 101, Judge HARLAN said: I‘Public and private safety alike would heii peril, if -the 'Principle be established that juries' in criminal
CLARK V. STATE. 735 cases maY, 'of right, disregard the laW as exPoUnded to them by the court and . 'become' a law UntO 'themselves. Under :such a systein the principal function of the judge would be to preside and keep order ffirSTineric untrained in the law,' would determthe questions dffe'cting life, libertY; or property *according to , such legal:prin ciPles :as in their judgment were applicable': to 'the ,parf ticular case being tried. H,because, generally'speaking, it is the-function of the jury 'to deterraine the guilt or innocence-of the accused according : to :the' evidence; of the' truth•or w'eight of which they are to judge, the court should be .held bound to . instruct' them uPon. " a point in respect to 'which there was no evidence . whatever; 'Or tO forbear stating what,' the law 'is upon a given 'state of' facts,•the result would be that the enforcem.ent Of the law against, criminals and the. protection,of citizens against unjust and groundless prosecutions, would : depend, en-tirely.upon-juries uncontrolled by' any ,settled;.fixed; legal• principles. ; And, , if it be. true that: jurors, in, a criminal case .are under; no.legal obligation to, take the, law from the court, and may determine-for, themselves what the law, is, it necessarily results_that counsel for the acansed may, of right„in the presence of both court' ,and- jury, contend.that what•the court declares to be the :law appli-cable.,to the case, in hand i.s not t,he law,..and,.in support of his contention,T.ead to the jury the reports of adjudged cases,,and the views of elementary writers:: „. : •., , We think the holding of .the Supreme Court . of •the United States on the subject is in conformity with ,the reasoning of this court in decisions bearing upon the question, and .that it is in, aceord with . the better,reason-ing and weight of authorifY.. Hence we hold th.0 this assignment of error is not well taken. We have carefully considered the instructions given bY the conrt and its rulings on the admission of eNiidence. It seeins to us that' the rights of . the . , deendant 'Were guarded by the court at all stages of the trial. We .find 110 reversible error . in . .t • h e . record, . and the jiidgilieiit must therefcire be affirined:
736, 'CLARK V. STATE. [169 HART, J., (on rehearing). , Counsel for the defendant ask for a rehearing, because they insist that the pro, visions of § 3140 of Crawford & Moses' Digest were not, cOmplied ,with. . , ,The record, shows that the defendant and, three other persons were .jointly indicted for the murder of . Lou Stont, charged to have been committed . while robbing .a bank in . Sulphur Springs, Benton County, Ark. The defendants elected to sever for trial. McDonald was tried first, •hen the. defendant, Clark, and then. Burchfield. The defendants .did not elect the order in which they should be tried, and it is insisted that, under the statute, the . .defendant ,should have been tried last, because. his name appeared last in the indictment., • This is mot the effect of the statute as construed by this court.: The provisions of the statute . have been held to : be. directory merely. Where defendants jointly in-dicted, sever; they stand in court as-they would had they been . indicted separately. If one is not ready for trial, dr i:not tried When. his case is reached, the next in order of succesSion stands for trial like all other cases upon the Criminal thicket of the court. Thus it will'be seen that, When -the defendants severed, the defendant Clark stood up' on the d' ocket as if he had been separately indicted, and his caSe might be tried when reached upon the Call . of' the calenclar like that of any' other defendant. He 'has no concern with what was done with the other defendants after-they had severed. Sims V. State; 68 Ark. 188 ., and Bitrns V. State, 155 Ark: 1. It iS next insisted that the defendant should have a Ohearing because he was not, served with a true copy of the indictment as required by § 3052 of Crawford & Moses' Digest.
. T . here i . s no merit whatever in this contention. The defendant was served with .a copy of the indictment. HiS only contention in this respect is that the , copy served upon Min did' not contain the name of the foreman of the grand jury and file date of the filing of the indictment.
ARK.1 CLARK V.. STATE. 737 The object of the statute in question is to inform the defendant of the charge against him so that he may be enabled to' prepare himself for trial. Johnson v. State, 43 Ark. 391. The copy of the indictment served upon the defendant contained the names of, the witnesses against, him, , and informed him of. the nature . of ;the charge against him. .It was complete in all respects except as. to the date that . it was filed in court, and the name of the, foreman of the grand jury. These were imma-terial'matters, and we are, of:the opinion that the statute was substantially. complied -with. Moreover, this court .has frequently sheld that the statut.e might he waived, „ Johnson v. State, 43 Ark. 391, and Powell v. State,..74 Ark. 355.. The defendant had already filed a motion .to quash the indictment :for certain specified. reasons contained in 'his motion,, and, also.a motion for, a change, of . venue.. Both of .these, motions had been , overruled lay the court. • His action in this respect constituted a waiver of his . privilege- to ,havea copy:of:the indictment served upon' him„ - Counsel for the defendant,. also, insisted that the court erred .in. , giving . instruction No. 15, which. reads as 'follows : ". `If you find from the evidence beyond' a . reasonable doubt that Tyrus Clark, While in the. alleged perpetration of robbing the' Bank of 'Sulphur Springs, wilfully fired a 'shot at Lou' Stout; which resulted in his death', then the:mere fact that ' her did not intend to take-life' in the alleged' perpetration' Of • robbery "is no defense to the charge against him." • We .did not set Ont'thi§ instnietioh in Our original opinion or 'make any separate discussion of it for' the reason that we 'believed that it was contained in Our di gcussion of the law. As we have already seen, the' defendant was indicted under § 2342 of Crawford & Moses' Digest, Which 'provides that all murder committed in : the perpetration of robbery, bUrglarY, larceny,. etc., shall he deemed murder in the first degree. 'The intent 'of' the
738 CLARK V. STATE. ,[169 Legislature was to say that where a party committedmur'- der he should be.guilty and punished for murder in first degree, if it was done . in the perpetration .of any of the crimes named..in the statute.: - It May be true, as contended by counsel fOr the &- fendant, , that a persbn coilild cot-11mA a homicide in 'the perpetration .of a robbery and not be guilty of.murdei'in the first degree, still the'. record befOre -Lis ; does not shoW a state of facts that would authorize the cbiirt in chrging . on.any other grade of homicide-than murder inthe first degree. There is no middle ground in the case. • According to the evidence fof the State, the defend-ant-and three Other persons went to the Bank of SulOur Springs for the purpose•of rbibbing it. The defendant and 'one 'of 'these persons stayed in the abtoraobile in Which they went to . the bank, for the ptkpose of . 'watching and guarding . While' the other • two went:int6:the bank 'and robbed' it.' Ali officer of . the 'bank was infOrmed' of the faCt . of the 'robbery' and went to the dOo'r of his store fOr the purpose of stopping the : 1-obbery •or capturing -the rdbbers. .As 'soon as opened.the front door of his store; one: of the persons in the car coMmenced shooting at him with a shotgun. The defendant , is shown tO thave been the person who had the shotgun. The person in the car.with, the defendant also testified.that the defendant shot the deceased. The proof , for. the' State..also showed that Stout died as the result •of, the wound, received from the first shot. If . the testimony for the ;State was believed by the jury, the killing was committed in the perpetration of robbery, and f)37- the express language of . the statute which supplied the elements of wilfullness, delibeiation, and premeditation, the. killing was murder in.the first degree. When, on the evidence, the accnsed is clearly guiltY• of murder in the first degree, or not guilty; it is not *only. the right, but the duty, of the 'court to so instruct the jurY. The fact that the defendant did not intend to take life in the perpetration of the robbery. is:no ,defense . under. the
ARK.] CLARK V. STATE- 739 statute. The defendant himself admits that he went there to aid in the perpetration of the robbery, and the mere fact that he had no . intention to commit murder while committing the robbery would afford him no defense Under , the statute. If such Was the . Case, then the statute can serve no useful purpose. Such .is the effect .of, our former decisions in the cases of Henry v. State, 151 Ark. 620, and Kelly .v. State, ante p. 289. In addition , to • the authorities 'cited in our former opinion, we call attention to a case note ih . 21 A. L. R. 628. In the discu§sion of homicide by poison , .or in the perpetration of felony, the annotator there said: -" The courts have frequently decided -that where -the only evidence of a. homicide tends to show that it Was• calmnitted by 'poison-or • in the perpetration of; Or an attemPt Inper-petrute, ane. 'of the felonies enuMerated in the statUte defining , murder in the first degree, no instruction on ,any 'grade of . homicide less than murder in the first degree is necessary, and that one convicted- of murder in the first 'degree on such evidence iS not entitled to a flew trial because of a failure to charge the law on a lower grade of homicide, or because of an instruction that no 'convic-tion of a lower degree can be had." We have examined cases from the various States cited in the note and find that they supportthe teXt. Under the evidence there was no middle ground or room far compromise in tbe present case.- 'Under the evidence for - the State the . defendant was' guilty of . the §tatutbry erinie • of 'niurder in the 'first degree, 'committed "in ' the perpetration'of robbery. - The jury WaS Preperl'Y directed to find 'that defendant was . guilty - Of murder irt the -first -degree, or not 'guilty.' • A further examination of the record conVince§ us that there was no prejudicial error in: the trial of the 'defendant, and hi§ motion for a rehearing must 'be denied.