480 SUPREME COURT OF ARKANSAS, [VoL. 34 Butler vs. The State. BUTLER VS. THE STATE. 1. INDICTMENT : For "Felony." To accuse one of the crime of felony is a bad Code beginning to an indictment. Felony is the name of no particular crime, but designates a class of crimes. The words "no considerable provocation appearing," are proper in an indictment for an aggravated assault, but are unrrecessarv and inappropriate in an indictment for an assault with intent to kill, and may be treated as surplusage. 2. WITNESS : His prejudice may be shown, but not the reasons for it. A witness for the state may be shown to be prejudiced, or to have ill-feeling against the accused, but the facts and circumstances causing such prejudice or ill-feeling, can not be stated in detail by the witness. 3. SAME : Contradiction of. Collateral matter. Test of_ When a witness is cross-examined on a matter collateral to the issue, he can not, as to his answer, be subsequently contradicted by the party putting the question. The test of whether a fact inquired of in cross-examination is collateral, is this: Would the cross-examiner be entitled to prove it as part of his case, tending to establish his plea. This limitation„ however, only applies to answers on cross-examination it does not affect answers to the examination in chief. 4. ADMISSIONS : State may prow. but net, defendant. The state may prove any voluntary admissions made by the defendant, but the defendant has no right to prove admissions naack by- himself to another person at a different time_ APPEAL from Conway Circuit Court. Hon. Circuit jUdige. Fletcher, for appellant. lienclerson, Attorney General, contra_ ENGLIevs , 17_ J. At g ri p? Siptembar term of the circuit
WT.. 34J NOVEMBER TERM, 1879. 481 Butler vs. The State. court of Conway county, 1879, Ephraim Butler was indicted as follows: "The grand jury, etc., etc., accuse Ephraim Butler of the crime of felony, committed as follows, viz.: The said Ephraim , Butler, on the first day of August, 1879, in the county, etc., aforesaid, in and upon one Green Hill, then and there being, with a certain knife, unlawfully, felo-niously, Willfully and of his malice aforethought, did make an assault, with intent him, the said Green Hill, then and there unlawfully, feloniously, willfully, and of his malice • aforethought, to kill and murder, then and there no consider-eble provocation occurring, against the peace," etc. He. was tried on the plea of not guilty, convicted, and his punishment fixed by the jury at imprisonment for three years in the penitentiary; he filed motions for a new trial and in arrest of judgment, which were overruled. He took a bill of exceptions, and, on final judgment, prayed an appeal, which was allowed by one of the judges of this court. L The indictment has a bad Code beginning. Felony is: the name of no particular crime, but designates a class of crimes punishable in England by forfeiture of lands and goods to the crown, and, by our statute, with death, or imprisonment in the penitentiary. Gantt's Digest, section 12'25.. In the body of the indictment, however, appellant is distinctly and specifically charged with the crime of an assault . with intent to commit murder. The words, "no considerable provocation appearing," are proper- in an indictment tor an aggravated assault, under sec. 1298, of Gantt's Digest, but are unnecessary and inappropriate in an indictment for an assault with intent to commit murder, and may be treated as surplusage. , xxxxv Ark . -81
482 SUPREME COURT OF ARKANSAS, [VoL. Butler vs. The Sfate; The indictment Was good, in substance. See Lace&ld v. State, ante. II. There iS the 'usual ground in: the motion for a new irial, that the verdict was not warranted by the evidence. GREEN HILL, the person assaulted, was the principal witnesg for the state. It appears from his testimony that he was staying at Dan Tucker's house, in Conway county, and making a crop on Levin Hill's farm, on which the house was situated. About the first of . August, 1879, he started from the house, on horse, to his field to get a watermelon for Mrs. Levin Hill, and met appellant on the turn-row, walking, and said to him, "You have been talking about me;" and he replied, "Yes, G—d 'd—mn you, I have, and now I am ready to settle it; G—d d—mn you, I will whip you, or you will whip me." Appellant then took hold of the bridle of the hor g e of witness, and thereUpon he dismounted; appellant Struck at witneSs, and witness knocked him down; he arose and struck at witness again, , and again witness knocked him down, and held him down until he agreed to quit; whereupon, witness let appellant up, and went to his horse, which, in the meantime, had walked off some twenty yards—appellant and witness walking together, and talking in a friendly manner. Witness went up on the left, and appellant on the right side of the horse. While witness was standing there, with his right side to the horse, his right arm resting on the saddle, and his face turned from the horse, appellant ran around the heels of the horse, came up in front of witness and stabbed him in the right breast with his left hand. That when he was struck he ran three steps and fell ; appellant then jumped on him, and went to cutting him—cut him, in all, three times in the breast, twice in the head, and once in each hand. Witness then arose, threw off_ appellant,
VOL. 34] NOVEMBER TERM, 1879. 483 Butler vs. The State. and ran 150 yards to Dan Tucker's house, appellant running After him. When he reached the house, 'he' ran up on the, porch, and said to appellant, "Mr. Butler, if you intend to kill me, I can 'not run any further." Witness' then 'picked up a drawing-knife; Christiana Tucker then commenced talking to appellant, and he Walked away, and witness sat or 'fell down in a 'chair. Appellant, at the time he was stabbing witness, ' first held the knife in his left hand, witness caught his left hand and then he changed the knife to his right hand. CHRISTiANA TuctiEk testified that she knew nothing of the fight. betWeen appellant and Green Hill until the latter-ran up on the porch. Appellant had a knife in his hand:. Hill's shirt was : bloody. , Appellant'S Shirt and his knife were bloody... Hill picked uP a drawingknife on the porch, and said . he could nOt run any further, and told appellant not to come any further. Appellant picked . up a piece of a rail, and she told Ahem not to fight any more. Hill ' staggered or: fell intO, a chair, etc. Much more testimony was introduced, but nothing tO : contradict' the , leading facts, above stated. There was : : an attempt, on the part of the . defense, to prove that Hill went , into. the field , armed, to , hunt and attack . Hiu, testified that when he went to the -field he had a pistol in his pocket. That in the first: or fist seuffle, while he. was holding the. : appellant down, the pistol dropped from his breast 7 pocket, and when appellant, saw it, , he said , to witness, "You brought; that pistol here to. shoot me : with." Witness replied, "I did not; it . is an old and. no . count pistol, and will not shoot, and is not . loaded," and then offered the pistol for appellant's inspection, and. he refused to examine it. '111=MIS
484 SUPREME COURT OF ARKANSAS, Vol.. 34 Butler vs. The State. There was no want of evidence to sustain the verdict. The conduct of appellant, at the time he stabbed Hill, by the horse, indicates deliberation and malice. If the wounds inflicted upon Hill with the knife had eaused his death, and appellant had been indicted for murder, we can not undertake to say, that a jury might not, upon the evidence disclosed in the bill of exceptions in this case, have found him guilty of murder in the second degree. Dr. Gordon, who attended Hill, testified that he was suffering from divers cuts and stabs, the most serious of which. was one in the right breast, which was about three inches deep—the knife having penetrated the lung. H. On cross-examination of Christiana Tucker, witness -for the state, appellant asked her if Green Hill had not, a few days before the difficulty, detailed to her scandalous matter as coming from appellant ., inpugning her character mild virtue. The court sustained an objection to the question, decid-itig that the witness could not detail the facts and circumstances of such scandalous matter, but that she might be asked if she had any bias or ill-feeling towards appellant. The bill of exception states that the object of the question waa to show bias and ill-feeling on the part of the -witness, and also ill-feeling and malice on the part of Hill against appellant. • It may be shown by proper questions that a witness for the state is prejudiced, or has ill-feeling against the accused; but the facts and circumstances causing such prejudice or ill-:feeling can not be stated in detail by the witness. Corneliu,s .(e. The State, 12 Ark., 800. If Hill communicated to the witness scandalous matter about her as coming from appellant, there was no offer
VoL. 34] NOVEMBER TERM, 1879. 485. Butler vs. The State. to prove that the fact was communicated to appellant before the difficulty; it was no part of• the y es yestae, and. could throw no favorable light upon the conduct of appellant. at the time he stabbed Hill. III. Christiana Tucker testified that appellant was in the employment of, and -lived with her husband before and to the time of the difficulty. That she afterwards found the bloody shirt, worn by him, rolled up and stuck. under the corner of the house. That she took it out and asked her husband, Dan Tucker, if she should wash it; and he instructed her to wash it, and she did wash the shirt and sent it to appellant. This statement about washing the shirt she made on cross-examination by appellant. Appellant offered to prove by his witness, Dan Tucker, "that he did not _request her to wash the blood stains from off the back and front of the shirt worn by appellant on the day of the conflict." The bill of exceptions states that this testimony was offered by appellant "to show the aninms of the state's witness (Mrs. Tucker) towards hin: . ; . and also by way of impeachment, showing the statement made by her as to the request or order for washing said blood stains was wholly • false." The court ruled that the evidence so offered was inadmissible. We can not see how it was at all material whether the witness washed the shirt of her own accord or by direction of her husband. "In order to avoid an interminable multiplication of issues, it is a settled rule of practice that when a. witness is cross-examined on a matter colhiteral to the issue, he can not, as to his answer, be subsequently ' contradicted by.
486 SUPREME COURT-OF ARKANSA [Vol.. 34 Butler vs. The State. the party• Putting the question. The test of whether a fact inquired of in cross-examination is collateral is this— would the cross-examining- party be entitled to prove it as part of his case, tending to establish his plea. This limitation, however, only applies to answers on cross-examination. It does not affect answers to the examination in chief." 1 Wharton Evidence, sec. 559. IV. Levin Hill, witness for the state, having testified as to admissions made to him by appellant, after he had arrested him on the evening of the difficulty, appellant offered te -prove that at 10 o'clock the next day,- the same statement in every particular was voluntarily made by him to'A. D. ElliS, the constable, who had him in custody; • and the court, on the objection of the state, ruled the statement to Ellis inadrnissible. The state had the right to prove any voluntary admissions made by appellant to Levin . Hill, but appellant had no right to prove admissions made by himself 'to another person at a different time. V. The Court, on behalf of the state, gave to the jury eleven instructions; , appellant specifically objecting to the sixth and seventh. The coUrt charged the jury, in the series of instructions given for the . state, that to warrant a conviction for an assault with intent to murder, the evidence must be such that if death had ensued it would have been murder in the . fiist or second degree; , defined murder, express and implied malice, justifiable homicide, etc., and said to the jury that if they entertained a reasonhble doubt of the defendant's guilt of the higher offense charged in the indictment, they might find him guilty of an aggravated etr a simple assault, and defined these lesser offenses.
VOL 34] NOVEMBER TERM, 1879. 487 The sixth instruction may be subject to verbal criticism, but is in substance unobjectionable. The seventh, that "the use of a deadly weapon may be considered by the jury as evidence tending to establish the intent to kill," was not erroneous when considered in connection with the facts and circumstances under which appellant used hiS knife in stabbing Hill, , as disf o nsed by the -evidence. The appellant asked fourteen instructions, some of which the court gave, and refused others. • Without incumbering this opinion by copying the instructions refused, it is deemed sufficient to say that soma of them were inapplicable to the case made by the evidence, and others contained objectionable expressions. Upon the whole, the law . of the case was submitted fairly to the jury by the court, and the evidence warranted the verdict. 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.