Arki NOVEMBER TERM, 1879. 35 • „Yoimgblood•vs. The State. YOUNGBLOOD vs. TiE STATE. 1. Canirmit; PRACTICE: Appeal: SuspendMg judgment. •• It is the -dutY of the éircuit court, when asked, to suspend the execution . a judgment against a defendant in a criminal case, for a reasonable time, for him to apply to a judge of the supreme court_ for an appeal „ a nd supersed _ eas, as provi . ded by law. - 2. VinnIer: ' General, on several counts. , 'Mien an indictment .' .for murder contains' several 'counts, alleging, ,. variously the meats of death, the jury may render" a general verdict.: 3. EVIDENcE: . . Statement •of- prisoner to officer..." •• - •-- . Voluntary statements of a, prisoner, though , made , to an officer, and while ' he- was in custody, are affinissible in evidence against hirn:
36 SUPREME COURT' OF ARKANSAS, 0 6 . Ark.z .Youegblood;*s: The State. _ . - APPEAL frOm Franklin Circuit Court Hon. W. D. JAcOwAY, Circuit Judge. .Henderson, Attorney General, for the State. ENGLISH, C. J. In November, 1879, Cal Emory and James Youngblood were jointly indicted in the circuit court of Frank-lin county for murder. They were-charged with murdering Mary E. Taylor, on the seventh, of July, 1878, in said county. .The indictment contained seven counts, alleging variously the means of death. The first count charged that they murdered her by stabbing her with a knife.- - _ The second, by striking, beating, wounding and bruising her with clubs. The third, by striking, beating, wounding and bruising her with their fists. - -The fourth, by striking and beating her with stones. The fifth, by throwing her into water and drowning her. The sixth, by stabbing her with knives; and by beating her with their fists; and by beating and Wounding her with clubs; and by beating, wounding and bruising her with stones; and by throwing her into water and, drowning her. - The seventh,' killing and murdering her by some means, instruments and,weapons to the grand jurors unknown. Each count alleged the time' and place of the offense, and employed the technical words requisite and usual in an indictment for murder in the first degree. Both defendants entered a general demurrer to the whole indictment, which the court overruled. They eleeted to sever. Youngblood was tried on the ' plea of not guilty. The jury found him guilty of murder in the second degree, and fixed his punishment at imprisonment in the peniten-
35 Ark.j NOVEMBER TERM, 1879: Youngbleod - Vs.• The State. tiary for twentY-ons Years. filed mOtions in-arrest of judgment and for a new trial, which were'oVerruled, ind he took a bill of exception's. He was sentenced upon the verdict, and prayed an appeal, which was allowed by one 'of the judges of this court. -At the time appellant was sentenced (the - L Criminal eleventh of December, 1879), he moved the Practice: Appeal: Suspned- court to suspend the execution of the judgment, jud g- ment in and allow him sufficient time to obtain a tran-circuit court script of the record, and submit the same to one of the judges of the supreme court for the allowance of an appeal, etc., which motion the court overruled. At what time the execution issued, does not appear. The clerk'a certificate of authentication to the transcript bears date the seventh of Jan-nary, 1880, and the appeal was allowed on the twenty-seventh of the same month, before which time, it seems,, appellant had been lodged in the penitentiary, and the allowance of the appeal did not operate as a supersedeas. - On the thirtieth of January appellant's counsel moved this court , for an order to remand him to . the jail of Frank, lin county,_ that he might' there remain until his appeal could be heard and determined, , as he would have done had the court below, suspended the execution until he obtained the allowance of the appeal, and had a certificate thereof sent to the clerk below, etc. This motion was overruled because there is n6 law providing for such an order, and no precedent for it. By statute, if appellant is confined in the penitentiary before the eertificate of the allowance of the appeal is delivered to the sheriff, he must remain there during the pendency of the appeal. Gantes Dig., sec. 2134. Sec..-2120,GanWs Dig.. proyides that: "Upon an , appeal being prayed, the Circuit ' court shall grant to 'the defendant
38 SUPREME COURT OF ARKANSAS, [35 Ark. Youngblood. vs. 'The - State: - a reitionable time for obtaining a transcript of the record, fdr submitting the transcript to a judge of the supreme court for his allowance of 'the 'appeal, for .filing the same in the clerk's ofqce Uf the suprethe court ) and'obtaining the certificate of appeal." Why the court- below did not suspend the execution- of the judgment for a , sufficient tiine to enable appellant to apply for an appeal and supersedeas, as provided by the statute, does not appear. But such an error occurring after the judgment is no ground fo - r • its reversal. • II. .The demurrer was general to the whole indictment, and, in short, _upon the record by consent. 2. Verdict: The motion in arrest of judgment was upon. General, on several two grounds: First—That the indictment does counts, good. not charge any public offense known to the law; and, secon&—because the jury, in their. verdict, did not state upon which count of the indictment they found defendant guilty. No par . ticul . a r . objection to the indictment is pointed out, and Vve can . see no substantial defect in it ; and . the jury had. the right to render a general verdict. Howard 1). The State, 3 ,4 Ark., 433; Edmonds v. The State, 34 Ark., 720. • III. In the motion for a new trial are the usual grounds that the verdict was wholly unsupported by the evidenee, and was against law and the instructions of the court. The death Of Mary E. Taylor was proved beyond reasonable doubt, by the finding`and identification of her' remains, and there ,were- some indications that her death was caused by violence. - The •criminal agency of appellant rested upon circumstances, and upon his own statements. , • • Mary E. Taylor was married at the house of . her, brother, Starling Dabbs, , in Franklin, county,., some seven years,before her death, and Went with her- husband ' to - Missouyi, - '
35 ; Ark] (39 ...Youngbleixt. ii.- The; State. ;Where; from some:bause'hot, a i ipearing,.:th4 separated; and she returned,r and 'had been living . at, ber brother's homie for tWo ; years before her death; . - On SUnday merning -.about 8, o'clock, Jub,' 7, 1878, she left the house . to 'go to John George's, who livtd- about a Mile east,- up Mulberry creek; , near its bank, 'and on the Sanie • side Of the creek- on which Dabbs lived. Members of the family testified that -she waS in -good health and Spirits, looking Unusually well, of soUnd mind; her front teeth abeVe 'and belew were in her mouth and in air apparently sound Condition, • and she:were a light brown calico dress and checked:sun-bonnet when she left the houSejon -that morn-n . ag. ' Failing to return as soon as she was expected ty the family, ;au uneasinesS grew Up, the neighbors Were alarraed, and a: gen-' 'eral Search Was'made for her.' : On , Saturday, the thirteenth of July, , hqr bonnet was fOund : nging on . a bash, on _ the bank Of the creek, near the water's edge; and her rings, whieh she wore when she left thehoUse, were tied to: the bonnet2 strings. The Water in the . Creek at tSis place was twelve or fourteen feet deep, and ran slOWV. When she left the house, she went 'eat. ward, in the direction of the place: , where the bonnet Was foUnd. On Monday, July , 15th, her body (or its remains) was found in a slough, about three-qiia*rs of a mile west of the house, and about a mile and a quarter from the place where the bonnet was found. The body Nyas in still water about tën inches deep. The place where it was found was wild and . unfreRuented, no habitation being nearer than three-quarters of a mile. A thicket of underbrush extended across the slough below the body. At thelead'of the slough was a bar oVer:which the water Was running from four to six inches deep into it, from the creek, and
40 SUPREME COURT OF ARKANSAS, [35 Ark. _ Youngblood .va. The State. flowing back into the" creek below; through an unobstructed channel about ten or twenty steps above the place where the body was found. The slough was on the south side of the creek, and its deepest-part probably about two feet. It went off from the creek in a southwesterly direction, and curved back into it some two or three hundred yards from its head. The feet of the boily were up stream,. the head down, skirts forward over the body as if washed up, and the legs exposed. The flesh was gone from the face, the scalp off, with the hair in it lying near the head, the entrails ouk and the body swollen and offensive. Seven of the upper and lower front teeth were missing. There were several slits or cuts in her dress over, above and below the breast, and maggots were working out of -the holes. There was a pole by the side of the body, its lower end in the underbrush and upper end in the eddy water, which appeared to have floated there with the drift. Members of the family identified the remains as those of Mary E. Taylor, by her clothing, shoes, hair, etc. Some time after the remains were buried, and after the flesh had all decayed, they were exhumed under the order of a magistrate, and the skeleton exainined by medical witnesses. They found no fracture of any of the bones except a fracture of the eighth rib on the left side, Which fracture was about an • inch from -the spinal column. Around the fracture they discovered signs of coagulated blood, which must have settled , there immediately before or after death. They were of the opinion that the fracture of the rib and the settling of coagulated blood, about the fracture, were caused by violence shortly before or immediately after death. A dentist, who aided in this exaniination, testified that
35 Ark.] NOVEMBER TERM, 1879.. 41 Youngblood vs.' The State. he had Operated upen the teeth of Mary R Taylor about two months before her death, at which time the front teeth in her upper and lower javi were in a 'sound condition. At the poll mortem, examination, three of her upper and four of her lower front teeth were found missing. Three or four months before, her death he had extracted three of her molar or jaw teeth, ani-corresponding vacancies were found in , the skull. He had also filled some' of her teeth with amalgam, which he identified as yet in the skull. The above, in substance, was the proof, on the trial, of the ccepu.§ delicti. From various facts stated by a majority of the witnesses as to the course of the current of the creek, obstructions in it, the har at the head of the slough, and the shallowness of the water passing over the bar inth the slough, it seems doubtful whether the body of Mrs. Taylor could have floated down the emek from the place where her bonnet was found, and entered the slough over the bar at its head, at which point the current of the creek turned towards its north bank. It seems from the testimony of other witnesses that there was a rise in the creek of about two feet between the seventh and fifteenth of July, and that the body might have been floated in the slough on such rise. What the jury concluded about this we do not know. About the time the body was found, Cal. Emory, who had taken some part' in the search, disappeared from the neighborhood. About a month after, appellant, who, in the meantime had been making efforts to sell his crop, and manifested uneasiness, disappeared, and they were both afterwards arrest, ed in Sharp county. Emory had been visiting Mrs. Taylor, at her brother's bOuse, frOia '31a5T, '1878, down to within a few days of her
'SUPREME COURT : OF: ARKANSAS, [35 Ark.: You.iigbroad. !vs:, The _Stafi. death; -aid,-tO pie the -1 , anknage.Of her -brother, thongli she had- nOt- been divOreed froM her huSband: She • received his Visits and associated with- him. During the - sea:rat Einory , 'and -appellant were seVeral times seen together in : ConsUltation, and th&former wa g 'attempting to bOrrow Money, "-Offering Ihejatter ::es sureti. ' -Emory. the :hOuSe of RiChard I tUggin:s;and waS tot' there on day, the , seventh of 'July; Appellantlived With James M. Hug-gins, and made a crop on his place, but was not -there on that After the body was found, appellant was ittemPting- to sell J . Mr . ."-• Childress his,, crop,-but, said he did- not want to be in a hurry abont it, as it , might raise . .a -suspicion against Tinory and appellant Staid at the: -house of appellant'S father, the night:of the Sixth of July. On the next- morning (Sunday,. the 'seventh of JulY,) they left there together when-the sun Was -about a half "hour high. Emory asked ati-pellant to go withhini over to his liorne at Richard-F. Hugging and they1 toe& their hats and7started, off in'an•easterly direction It was" about a mil& and a half or two miles from the houSe of appellant's " father to' the house of Richard :F:- Hug-gins, "and botli: of theni lived on the ' , smith side of "Mulberry creek, and in the neighborhood of Starling Dabbs, brother of - After -the 'body"' Was 'found; I appellant Stathd :to 11. J. Rdiv: dall that he And Emory went 'from his. father's.house to Richard F. Miggins,' and:zfrom -there.to.James M.-Huggins,' : . and: froth there to Oliver'S- on:Sunday morning, the. seventh Of - July; '1878; There was 0 testimony conducing to prove this-statement to be ; . )n • - tschbOTTITouAe aboit,:two:-and. a .: half a southerly direction, from the place _where the bonnet was
35 Ark.] NOVEMBER TERM, .1879. 43 .Youngblood vs, The State. found, and there was an appointment-for.-singing and preaching there on Sunday; the:seventh of July, .1878. ' After some peoPle had assembled, appellant ' canie there On foot, and inquired of .a Witness if he hid . seen. Emory, and he replied that he was in sight, coming up the roacL Appellant started :off, -and met Emory about .twenty- -yards 'from where the people were collected, : and:they went into a hollow; out of sight; remained there about. fifteen.minutes, and then, returned to the church. It wa4 , a wai* day; appellant had on thin clothing, and they'were Wet With sweat. Thp appointment for singing was at 9 o'clock, but what time appellant and ThnOry i-got there, does' not app ear. EinorY's clothes were. also wet with' sweat. William L. Huggins testified that within a week after the body of -Mary E. Taylor was found, appellant came to him, at the church house, and stated to_ him that he supposed that Emory , had told him , "about their . meeting : with that, woman at the creek on that Sunday morning." Wit-, ness replied that he had, and appellant . remarked '"that (Emory) was a damned- fool for ever- saying anything about it." . - RObert CaSe,.sheriff :of Independence county, who 'arrested appellant in Sharp countY, testified that on , their way to Bates ville appellant volunfarily told him that he and Erhory had an understanding by Which Emory waS to meet deceased aka cer. tain plaee. on Mull:terry creek in Franklin county, on Sunday inOrning,.'and that-he (akiellant) Was to come upon them and catch them in-the act of . sexUal intercourse, and demand a. par: ticipation in the saMe himSelf , ; that he accordingly went to the place at the:appointed time, -and Saw Enaory and the.deceased haying sexual intercourSe; ' that apprOached, 'and' asked her to yield' to him, but 'that she' refuSed, and Said-she :*onld die firit; and that ' he' and EinOrY then left . her,- and
SUPREME . COURT . OF ARKANSAS, [35 Ark. -Youngblood vs. The State. fogether- to " the church house; and on the way Emory stopped at a branch and washed the blood out of his han4- kerchief, when he (appellant) remarked to Rmory, "Yuu had a rough job of it;" to which Emory replied, "Yes," etc. After making this statement, appellant offered witness his horse and crop if he would turn him loose. Appellant appeared to desire to turn states witness, and repeated the above statement several times, but never would make any further disclosure. Frank P. Southard, of Independence county, testified that in a conversation he had with appellant, about the 'twelfth of November, 187,8, appellant asked him if Emory had heard about the reports concerning Mrs. Taylor in Franklin county. Witness told him he had, and appellant said nothing would ever be done about it, as the woman was a damned "whore," and had no friends that would take it up. In,a second , conversation •itness had with appellant about thiS matter, he said. Mrs. Taylor was a perfect lady and a virt tuous woman. A. J. Nichols, deputy sheriff of Franklin county testified that about the middle of August, 1878, he went to Batesville after Emory and appellant; Sheriff Case took appellant out of jail into the court yard, where he conversed with him, after which Southard asked witness, in the presence of appellant,, if there was any danger of the prisoner being mobbed in Franklin county, and witness told him but few persons knew anything about it, and there was no danger; they afterwards went into....the jail, and appellant asked witness how public sentiment relative to the ,matter was . in Franklin coimty; witness replied that 'tut little wa. known of the: matter, but it,z was, worse.: against
35 Ark" NOVEMBER' TERM, .1879. • .Youngblood vs. The State. Emory than 'him; witnessftold hira What he :had underStood William. L. Huggins .would testify, and.: appellant ,. then said, "God knows I am not guilty as charged ;" Witness told hini he was glad to hear it; after he was , put into the cell, and witness Was abOut th leave, appellant Caught hold of him, and said he . wanted to talk to him; witness stepped back with Mm, and, When they were alone, told him he wanted to ask him some questionS, and if he answered him at all he wanted him to tell him the truth, *and if he could not do this he need not .answer ; witness then asked him, fint: "Did you and Emory commit an outrage on Mary E. Taylor ?" seccincl:' "Did you and Emory outrage MarY E. Taylor and murder her and threw her in the creek e to which appel: lent replied : "Jack, I did not help to throw her in the creek; I did not see that; I did not know, anything about that." He did not answer any fUrther; but said he would rather see a lawyer first, and if Witness would come back that evening about sundown, he would see further about it.' About sundown that evening witness was again at the Jail, and asked.:appellani if he Wanted to answer any questions, and hereplied he believed he would not ansiver theM. The foregoing are; 'mr substance, the ' leading circumstances and statements tending to connect ' apPellant criminally with the death of Mary E. Taylor. The transcript discloses other slight circumstances and statements, which, in the minds of the jurors, , who' ilonbtless 'understood the local surroundings1 better than we do, might have had such tendency, but we deem it unnecessary to attenipt to state then?:. tp H o n the Whole Of e eviclenee,- 1i question of the guilt OT innocence of appellant was for 'the jury. Their
46 SUPREME COURT OF ARKANSAS, [35 Ark. •oungbloo& vs. The State. Verdict showe What - their judgMent wai upon' the facts, and the presiding judge, who heard all the evidence, refused to set it aside. In Liles v. The Stale, 30 Alabama, 24, the accused was convicted of murder on slighter statements. connecting him with the crime than were proved' to have been made by appellant in this case, and the supreme court, after holding that such state-. ments were admissible, as _tending to prove the guilt of the accused, and .that ,their weight was matter for the jury, affirmed the judgment Froni all the indications in the transcript, the penitentiary iS a more appropriate place for appellant than I in, ,a commimity. _ It is not improbable that Mary t. Taylor was outraged, murdered and put into the creek, and her bonnet hung on a' bush, and her rings tied tO its strings, to make the impression that she had committed suicide by drowning herself. If she voluntarily fielded to the solicitations of Emery, why did he have a 'rough: job of it? and Why was there blood on his handkerchief ? By the statement of appellant to Case, if true, he and Emory left her at the same time, and appellant must have been present when she was put into the creek, if put in by violence before they left her. He, in effect, admitted to Nichols that she was outraged, but denied that he saw , her murdered aid thrown into the creek. It was for the jury ;to get at the truth, as best they could from -all of his statements, and from the circumstances in evidence. If he was-present, aiding, abetting, encouraging, or consenting, when she was murdered and put into the creek by Emory, and if such was the fact,„ he was a . principal in, t,he crime, as tl}e gourt pharged the jPry..
15 . - Ark]: .71\I-OVEMBEE,-TERM, yolt rolood .N a. The e state. .,Iy.--.Appellant, . objected .to the admission pf Voluntary the evidence-of his statements as made to ,Case confessions , of prisoner and Nichols on the•ground that they were -not to officer admissible. voluntarily made ; , the court overruled the ob-, jection,.and this is made, in different- forms, the • fifth, sixth and-seventh grounds of the motion for.a new , triar. The statements appear to have been voluntarily made, and, though made to officers, when appellant was in custody, , they were properly admitted in evidence. Meyer v. The State, 19 Ark., 156. Austin, v. The State, 14 ib., 556. V. -The fourth ground of the motion for a new trial:is, that the court erred in-excluding the testimony of John IL Fisher,,. a witness on the part of . defendant. The bill of exceptions shows that after this witness hact testified.., about the depth • of the creek, etc., defendant offered to prove -by him "that he knew the general reputa; tion- of Mary, E. ,Taylor for sanity and insanity before her death—that she had . ,the general reputation of . being a woman of. sane mind, butthat he had heard , some persons, e a minority of her neighbors, express themselves as believing Ler , to be of ,un7; sound mind i'' which the court excluded. 7 •_ That defendant offered to:prove by the same : -witness "that the, oldest sister of-. Mary E. Taylor, to-wit: Winnie Ann Dabbs, is and has been insane for a number-of years;" the court excluded. If it.was competent to prove by general reputation that Mary E. Taylor .zwas insane,- what _some of her- neighbors, a minority of them, said about her, would-not be, general‘reputa-r, The fact that her sister had the misfortune to be insane -was no . : evidence . of .. her insanity. •-• , ; ' If she was insane; th.0 -statement: 6f, appellant''' . that -he and Emory had made arrangements to have..41, .tercourse
48 . SUPREME COURT OF ARKANSAS, [35 Ark. Youngblood vs. The State. with her was the more shocking; and if they, or either of them forced her, it was the more brutal; and if they murdered her, her insanity enhanced, rather than mitigated the enormity of the offense. If she was insane, why would she drown herself from any sense of shame, which seems to have been the theory of this attempted feature of the defense. VI. The remaining grounds of the motion for a new trial relate to the rUling of the court in giving and refusing instruction& On behalf of the state, the court gave twenty-six instructions, to most of which appellant objected, and some of which were really needless, though they seem to haVe been harnaless. Appellant moved eight objections, of which the court gave those numbered 2 and 3, and refused the others, but gave two (numbered 27 and 28) in lieu of such as were not substantially embraced in instructions given for the state. The instructions given by the state were very much of the same character as those given in the case of Edmonds v. The State, 34 Ark., 720, though in this case there was no question about the surname of the deceased, and appellant did not think proper to put hi g character in issue, hence there was no instructions on these subjects. It must not be expected that we can take the time, or dO the labor of copying and commenting on the instructions, taken in substance from the provisions of the statutes, or the text-books, opposed by sweeping objections, and followed up by no brief here pointing out specific objections to any of them. Upon the whole we think the instructions given submitted the case fairly to the jury upon the evidence. Affirnied.
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.