356 MODE V. 'STATE. [169 The next assignment of error was the refusal of the court to give appellant's requested instructions Nos. 1 and 2. The first was a Peremptory 'instruction. It was properly. refused because the testimony in the case warranted , a submission of the issue of murder in the first degree .to the jury for determination. The other was an instruction covering appellant's theory . of an accidental killing, but it was erroneous in placing the burden upon the State to prove that appellant intended to kill the deceased. The killing was admitted; hence, under §. 2342 of Crawford & Moses' Digest, the burden of proving circumstances of mitigation that excused the homi-- cide devolved upon . appellant. The next assignment of error was the alleged failure to prove the,venue. , The venue was established with sufficient certainty shy tbe testimony . of. Zollie Moore, George Barber, and F. Lewis, heretofore Set out in this opinion. No error appearing,. the judgment is affirmed. MODE V. STATE. Opinion delivered September 28, 1925. 1. . CRIMINAL LAW—OPENING STATEMENT.—Where the State's theory Was that appellant and three others committed a burglary, it was not error for the State's attorney, in his' opening statement, to state that one of defendant's accomplices was dead and that • another one had escaped from the penitentiary, as it was proper for the State to explain why the others would not be used for witnesses. 2. CRIMINAL LAW—COMPETENCY OF EVIDENCE.—Proof by one of appellant's alleged accomplices that appellant assisted witness, • arrested for the same offense; in escaping from jail, harbored him, and took him to another State, was competent as tending to show a connection between appellant and the witness in the crime. 3. CRIMINAL LAW—NEW TRIAL—NEWLY-DISCOVERED EVMENCE.—New-ly-diseovered evidence which will warrant the granting of a new trial means testimony discovered after the trial which could •
ARK.] MODE V. STATE. 357 not be discovered by . the exercise of diligence before the trial, and not testimony known to the party in interest before and during the trial. Appeal froth Conway Circuit Court; J. T. Bullock,. Judge; affirmed. : Edward Gardon, for appellant. . H. W. AmReyate, Attorney General,, and Darden. Moose, Assistant, for appellee. , :Hump nusy s, J. Appellant was indicted, tried, and convictedin the circuit cOurt of Conway County for burglary and grand larceny, and was adjudged to serve a terr ' a of three year's in the 'State penitentiary OD each charge .or 'count in the indictment. From the judgment of conviction, he has duly prosecuted an appeal to this court. The evidence introduced by the 'State tended to show . that apPellant and three others, Homer Hendrickson, Bob Shaw, and Harry Durbin, burglarized a store at Oppelo on the night of April. 7, 1924, and stole merchanL. dise, belonging to the Van Meter Mercantile Company,. of the value of $110.56. Upon the trial of the cause, Harry Durbin testified that appellant assisted him in escaping from jail, harbored hini after the escape in his home for five or six days, and then took him to Oklahoma in his cat, where he left him. Toward the close of the trial, appellant. moved to eXclude . Durbin's testimony, and saved an exception to the ,court's refusal to do so.. .This exception was Carried into appellant's motion for a new trial,. wherein appellant alleged surprise at its introduction and the discovery of testimony by which he 'could es'tab-lish an alibi at the time Durbin claimed he assisted hirii; in escaping. • The oPening statethenit of the case was made by Mr.: Rorex; who was employed to assist the prosecuting attor- • ney. In making the statement, he took occasion to say that Homer Hendrickson had been killed, and that Bob Shaw had escaped frorn the penitentiary. .Appellarit objected to this remark, a-nd saved his exception to the
358 . MODE V. STATE. [169. refusal .. .of the court to exclude it. When the objection was made, Mr. Rorex said that he bad made the statement in explanation of why the State could not introduce Hendrickson and. Shaw as witnesses. Three assignments of error are presented by appellant as reasons . for a . reversal of the judgment; first, that the remark made by Mr, ,, Rprex, s was improper and prejudicial; second, that the ' testimOny of Harry Durbin was . incompetent as a circumstance, for the jury to consider in arriving at the veMiet; 'and third, that' the' court erred in refusing to 'grant hini a new trial upon the grounds of Surprise at Durbin's testimony and discoVery of new evidence after the 'trial 'to connteract it. (1) , , The remark complained of was made by Mr. Rorex in the preliminary presentation of the case and in explanation of the absence of two parties that the State wourd . have used for witnesses if they had been available., The State used Durbin, who admitted that he was implicated in the robbery, and it was both natural and logical i for,the State to explain why the others implicated in the robbery would not also be used for witnesses. We see nothing . in the statement indicating bad faith on the part ;of:the attorney, or an ,attempt on his part to testify or introduce 'hearsay evidence. We think the remark was proper in, outlining the case. We think the testimony of Durbin was admissible as acircumstance tending to 'show the guitt of appel- lant. Durbin was arrested for the same offense with which appellant was charged; and, if he assisted Durbin in escaping from jail, harbored him, and took him to another State, these acts tended to show a connection between them in the crime. The relevancy of the testimony is apparent 'because appellant would not have as!sisted Durbin in making his escape if he had not'been a participant in the crime. (3) Appellant's surprise at Durbin's testimony and the discovery of evidence to refute it were not sufficient 'to bring him within the rule allowing a Dew trial for newly discovered evidence relating to a material issue
in the case. • His surprise should have been .announced When Durbin testified, and he should have followed 'it up by asking a suspension of the proceedings until 'he ,Could secure the witness to show an. alibi. He Must have known Where he was on the night of October 10, '1924, the time Durbin testified he assisted him ii escaping from jail. Tthe affidavits attached to the motion '.for a . new trial; tending to establish his alibi on that date, were affidavits of witnesses living in a town near-the county seat. He knew at that :time where, these . witnesses,ilived and what they would , testify with .reference to his where.- abouts on that night. Newly discovered . evidence which will warrant the granting of a new trial means; testimony discovered after 'the trial which could not be' discover,e,d by the exercise of diligence before the trial, and;notl.testiT Mony known to the party in interest before and . during the trial. The rule announced by this court in the case of Nickens v.. State, 55 Ark., 567; is applicable, tO, the . facts in the instant case. , . • No error appearing, the ju ' dgment is:affirmed. ;
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.