ARK.] MILLS V. STATE. 107 • MILLs V. STATE. Crim. 3861
Opinioni delivered November 6, 1933-. . 'eRIMINkL LAW—COMPETENCY OF EiVIDEN'ci. The rrile that the •evidence must be • confined to the point in cssue 'does riot . eXclUde all evidence:that does not :bear directly, upon the issue; but, on the contrary, all evidence is -admissible which tends to prove it, and no evidence is excluded , except such as is incapable of af, fording any reasonable presumption or inference with reference to . the issue. 2. CRIMINAL LAW—OPENING STATEMENT.- In a prosecution for murder it was frot. erior for- the 'prosecuting attorney iri his opening statement to , say that the evidence: woUld Prove' that -the defendant was engaged in the manufacture and sale of liquor, and that many things had happened - that decease'd inew - aboirt. 3: •CRIMINAL LAW = CLOSING ARGUMENT FOR ''rATE.:— .1-In 'a 'prosecuting ,attorney's closing. ,argumerit,: a was riot objectionable' to ' state : that the, facts as stated in his opening'statement had lieeh.proVed, such evidence having been .admitted without . objection., Appeal froth Crawford. CircUit Court; J. 0. Kin'can--, non, Judge; affirmed. 1, T. J. Wcitt;9;; Elmer A. Riddl aiati-R. S. Wil gon, for appellant. : .. • -.-• • Hal L. NorwOod, Attorney General, and RObert Sw,ith,-Assisthnt, for appellee.' MEHAF.FY, J. The appellant - indicted' by the grand: jury of Crawford County !kir . murder' in the fitSt-degree. The jriry foUnd hith gbilty of VoluntarY Manslaughter, and:fixed hiS i punishnient at seven year g in-the State . penitentiary,. : and judgment was enfered aceerd-ingly.. A motion-for . neW triaUwas filed and oVeirfiled, and.the ease is : here oh appear. - W: S. Bushmiaer, a deputy sh • e , riff, testified that he wag called , to St: John's HoSpital at Ft. Smith'_the day. that- appellant \Vas charged to have shOt He-found Williaths- in the hosPital, and he . jaa!d been' shot; He arrested the -appellant near the ho'spital.. had been drinking. Some twenty:four hinirs'before the death of Williams, witness had a . coUversation. With Min,' at a time whenWilliams thought he was going tO,die. *ge did die the next:day. Witness testified-that William's Said
108 MILLS V. STATE. [188 Guy shot him; that he had mistreated him the day before 3 that he had kicked him, and Williams said that he expected the officers to look after it ; he said that he knew that he was going to die, and wanted the officers to attend to it. Williams told witness that Guy bad told him he asked too damn many questions, and that appellee kicked him around like a dog, and had drawn a gun on him before. Witness later recovered a coat lying on the side of the road, and found in the pocket Williams' and his wife's picture. Witness talked to Williams four- or five times in all; never heard Williams say it was an accident, Witness called at the hospital about 12 :00 Friday night, and Williams died about 12 :00 Sunday. Albert D. Maxey; sheriff of Crawford County, testified that be was called to the hospital and had a conversation with Williams, and Williams did not say it was accidental. Williams did not want to talk much about it. He said that Guy told him to dance or he would shoot him. Williams told Witness that Guy pulled his gun and said : "Dance, God damn you!" He said Mills was then going• to shoot himself, and that he did not think Guy intended to kill him. He said he did not have any right . to shoot him. Williams said he was going to die. Dr. Fred Krock testified that he knew Tom Williams and treated him for gunshot wounds, and that he died from complications from these wounds. He was in the hospital ten days. There was a bruised area over the right hip. He was conscious until a few minutes before his death. Witness told him he had very little chance to recover. Williams told him two days before his death that he was not going to get well. Witness said that Hams told him that Mills tried to kill himself. He also stated that it_ was an accident and unintentional. - The bruise on his hip could have been caused by his fall to the cr round. It could have been caused by having been knocked down on the ground and slid around. Arch Howell, a deputy sheriff, testified that be arrested George Sites in April, and Sites made a statement to him. Sites said : "We make whiskey over on our side, and we drink it." Found a card at the still site, and
ARK.] MILLS V. STATE. 109 on it was written: "Oh, you snitcher, you thought you would run me in, but I ran my beer green, and made forty gallons." Has seen appellant's handwriting, and the writing on the card is his. Witness testified that there was no ill feeling between- appellant and himself. Several witnesses testified for the appellant, practically all of them testifying that the shooting was accidental. Appellant testified that they were drinking a little. and that he did not intend to discharge the gun; admitted that he drew a gun on Vieory, and told him to dance; had a fight with Bo Montgomery one time. Appellant contends that the judgment should be reversed because the prosecuting attorney used the follow, ing words in his opening statement-to the jury : "1 thinlz the testimOny will show that Guy Mills was engaged it the manufacturing and selling of liquor—over there will: Guy Mills a number of things happened that Tom knew about. The testimony will show that Guy Mills beat Tom with a rubber hose, possibly stomped him. He made rthe statement another time that Tom , knew too damn much.''. The statement of the prosecuting attorney 'above copied left out a statement which followed immediately aftei the word "liquor" in the first sentence, and is as follows : "Tom Williams was a man who waS homeless. I think the testimony will show that Tom was the .sort of a fellow that would take a spell of being good, and he would tell everything he remembered during that time." At the close of the statement the appellant objedted to the remarks, and the court said: "That will be- sustained so far as the direct charges are concerned; as to the others, it Will be overruled," and the appellant excepted. Just what part of the statethent he excepted to, it -is difficult to tell, and it is not shoWn juSt what the court meant by the "direct charges." No suggestion was inade by the appellant at that tithe that the court state particularly what portion of the remarks he meant by "direct charges." He probably had in mind that charges affecting the credibility of the appellant as a witness were ad:.
( 110 MILLS V. STATE. [18$ that--the- other -part was not admissible. and to that part he sustained the objection. The evidence that the prosecuting attorney. said in his opening. statement . would be -introduced was- COMpetent. ."It, is: certainly true as a general. rule, both in civil and criminal cases, that the evidence must: he confined to the point in issue ; and-in criminal cases, there is perhaps a greater necessity, if possible, than in ciyil proceedings to enforce the rule ; but in neither class of cases .does this rule _exclude all .evidence, that does not bear directly upon the.issue ; on the, contrary, all-evidence is admissible which tends to prove-it, and no facts are forbidden to be shown; except such as Are incapable of-affording any reasonable presumption or inference in elucidation of the matters involved- in the issue." Stotts v: State, 170 Ark. 158, 279 S. W. 364. . The appellant did not request..any instruction with reference to the statement of the prosecuting attorney. 'Section 3171 of Crawford -& Moses' Digest is as follows : "The Prosecuting attorney.-may then read to the jury the indictment; and state the -defendant's plea thereto, and the punishment prescribed.by the law for the offense, and may make a brief statement of the evidence on which the State relies." _ In the instant case-the prosecuting attorney was evidently Undertaking to 'make a 'statement of the evidence upon .which the State relied; and we do not think there was any error in the ruling of the court as to the objec-. tions made by the appellant. The appellant also urges that the case be- reversed because the -prosecuting attorney,- in 'his . closing argument, said: ."Gentlemen of the jury; I told you in the opening statement that Guy Mills was engaged in the making of . liquor and selling it, and we have proved that ; I told you that Guy Mills had been going around shooting at people, and we proved that ; I told . you Tom Williams, the -.deceased, had learned too damn much about Guy Milsibusiness, and I think we have proved that." The appellant cites Holder v. State,.58 Ark. 473; 25 S. W. 279, as sustaining his contention. Ju that case the
•1 court held that the action of the attorney for the State was highly reprehensible. There is nothing reprehensible in the conduct of the prosecuting attorney in this case. He was merely stating that he had proved the things to which he had called attention in his opening statement, and, when objection was made, the court said: "The prosecuting attorney may argue his theory of the case," and the appellant simply said : " Save our exceptions." The. appellant 's attorney objected on the ground that the argument was not supported by the record in the case. We think the evidence tended to show the facts as stated by the prosecuting attorney, and that there was no error in the court's permitting the argument. He was simply stating to the jury what the State had proved, and the evidence was admitted without objection. The evidence, if believed by the jury, was sufficient to justify the verdict, and the case is therefore affirmed.
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