AWi.] DAME V. STATE " : 1107" DAME V. STATE. Crim. 3969
Opinion delivered January 13, 1936. GRAND JURY—COMPETENCY.— :In a prosecution for arson, in .burning a hotel, the son-in-law of the hotel owner was- not incompetent . as a grand juror, under Crawford & Moses' Dig., § 3005. 2. , CRIMINAL LAW—CHANGE OF VENUE.—A petition for a change of venue , was properly denied where examination of the affiants and of bystanders failed to show that the affiants or bystanders had such a general knowledge of the sentiments of the people of the county or were qualified electors and therefore competent to verify the application. 3. CRIMINAL LAW—EXAMINATION OF JUROR.—Refusal to permit a juror on voir dire to answer a question, held not error where the 'record does not show , what answer was expected. . CRIMINAL LAW—HARMLESS ERROR.—In a prosecution for arson, admission of testimony that the material of which the building was 'constructed would not easily catch fire held not prejudicial. . ARSON—COMPETENCY OF EVIDENCE.—In a prosecution for arson of a hotel testimony of a lessee fhereof that he lost personal property worth $6,000 held competent as tending to rebut an insinuation that the lessee might have been the incendiary. 6. WI TNESSES — IMPEACHMENT.—A witness may not be impeache,d, in an arson case by asking him whether he was under indictment for stealing hogs. 7. CRIMINAL LAW—VOLUNTARY CONEESSION.—That a confession was induced by an officer's suggestion as to how defendant would feel when he was in the penitentiary while the persons who in-- duced him to commit arson were sitting under an electric fan held not to render the confession incompetent as obtained by threat, pronlise or compulsion. 8. CRIMINAL LAW— VOLUNTARY CONFESSION.—The sheriff's testimony that, when accused talked first one way a ' nd then another, he said to him, "If that is the way you a're going to talk about it, we will give you all we can," held not to show that the language was .
110 8 DAME V. STATE.. [191 intended or understood to constitute a threat, and hence the subsequent confession was admissible. 9. CRIMINAL LAW—CONFESSION.—In order to establish the admissibility and compaeiicY of 'a 'Confession, it is necessary only that the preponderance of the evidence establishes its.voluntary natUre.. 10. WITNEssEs—IMPEACHNENT.-7Where the evidence in an arson ca§e showed that accused induced his sister-in-law to set fire to a hotel, and the sister-in-law testified that she was in the hotel for the purpose of a clandestine meeting with accused, slie was properly impeached by proof of her confession, especially where the confession added nothing to the effect of her admissions on cross-examination. Appeal from Randolph :Circuit Court ; John L. Bled-soe, Judge; affirmed. * . C. T. Bloodmorth, for .appellant. .Carl E. Bailey, Attorney General, J: F. Koone and atty ] . WMiants, Assistants„ for apPellee.. 131mEn, The, appellant wa g indicted, tried and convicted, for the crime of • arson and- sentenced to im- prisonment . in the State penitentiary foy a period of five years. The evidence tending . to connect the appellant with the .commission of the crime .is to the following effect: The Randolph Hotel a.t Pocahontas, Arkansas, was burned-in the e ally morning of 'April 28, 1935. The fire was discovered about 2:30 A. M., and apparently had started in the. attic over room NO..121. Those who*first discovered the -fire observed -coal: oil dripping from the ceiling over one Or r g ore of the- rooms. It was found that the fire- fighting equipMent bad:been tampered with and' the hose cut, 'which , interfered ' with the attempt to ex- tinguish the flames, and the building mas:destroyed. .: -The appellant, Ben Dame, and-bis wife came to the•• town of 'Pocahontas 'and registered at 'the • Randolph Hotel about 9 :30 on the night of April . 26th. • Dame asked for . a double room; which . Was assigned to . him. He brought A suit case-with him which was ,very heavy and which was afterwards -found to contain three one-gallon jugs. He Arid his wife kept their room during the day of the 27th , and checked . out about Seven or eight o'clock on the evening „ of that day. During 'the day of the 27th, Daine left POcahontas and returned in the aftermion witb Pauline Gearhart, :a girl about seventeen years of age,
ARK.] DAME V. STATE. 1109 who is his wife's sister. The conveyance in. which they were traveling stopped before it reached the hotel, and Dame there gave the . girl some money; directing her to go to the hotel and . secure a room. $he, accordingly registered at the , hotel . and was, assigned rooml■To. 121. Dame visited her in this room some time on the evening of the 27th and left with the miderstanding that he would return about ten o'clock. The :attic could be reached: through some "set-tale holes," , .one of -Which was in a eloSet which was a part of rooM . 121'.'occupied by the Gearhart girl.' This was , one of the , roOms where coal oil was observed to. be coming through the eeiling. Pauline Gearhart Was arrested a short time after the *hotel was bnrned during. the earlY morning hours Of that day. ShortlY thereafter; the appellant and hi . s nephe-W, a youth unidei the age ; of . twenty-one, were also- arrested. Appellant was transported te Little Reek for questioning by , James Pitcock,'. chief of detectives of the police department of, that city.. As a result of his examination, hy pitock, he ' signed a . written confession to the effect that he had ., burned the hotel itt the instigation of two , men, one Of whom had paid him a Small slim and had agreed fo 'pay about 000 for '- the burning of the hotel; that he made keparations , to burn the hotel on the - night Preceding' the fire,;; that he had in the suit case which , he brought to the hotel three. one-gallon jugs' of 'Coal oil and . a1S6 a small hottle containing the same fluid that he . toOk the . bottle and jugs. 'through one of the scuttle holeS into the attic ' "of the' had and froin the bottle he Sprinkled 'coal 'ell on the papers and ,rubbish there ; t . hat . , on the * . next day he hired a con- veyance and went to where Pauline , Gearhart was •S'taYing and. brought her hack to PocaliO ., nta . S; . t . hat. he got her con- sent to start the fire ankthen left . and. we , nt ., with. his nephew to a house where the fire. fighting equipment .was stored which he entered by making. an opening in one of the walls . of the building; that he . there detached, `. `the distributor" from, the fire truek andcut the , fire . bose ; in several places ; that he , .then went to the home , of • his mother-in-law, where he , was when the fire was Alseovered and where he remained until morning.„,
1110 ' DAME V. STATE. [191 Shortly after Pauline Gearhart was arrested, she also made a confeSsion as to her part in the transaction, which was reduced to writing and signed by her. Twelve assigmrients of error are preserved in the motion for a- new trial and here argued for a reversal of the jUdgment. 1. When the grand jury was impaneled, appellant filed his written objection to the competencY of George Promberger "because the said George Promberger is - a complainant: upon the charge of arson against this defendant ; because the said George Promberger is a near relation to the party to whom the property destroyed by fire, or a large share thereof, belonged, for the bUrning of which this prisoner i8 being held on a charge of arson to await the action of the grand jury and is' directly and indirectly interested in .th e prosecution." As to his qualifications, Promberger testified as folloWs : "I am a son-in-law of Ferd Spinnenweber, who is the owner of the Hotel Randolph which was burned. I have no interest in the hotel and am not a witness in the case in any way. If I should be taken and 'qualified as a grand juror, there is nothing that would prevent me from giving a fair and iMPartial consideration to the charge against the defend-arit, Ben baine." The trial court. did not err in holding the juror qualified. Section 3005 of Crawford & Moses' Digest is decisive of this question. It provides : "Every person held to. answer a criminal charge may object to the conipe-tency of any one summoned to serve as a grand juror, before . he is sworn, on the ground that he is the prose-cuter or complainant Upon any charge against such person, or that he is a 'witness on the part of the prosecution, and has been summoned or bound in a recognizance as •such ; and, if such objection be established, the person so challenged shall be set aside." 2. Appellant filed his petition and affidavit for a change of venue.. The affidavit was signed by four supporting witnesses. On their examination by the trial court touching their qualifications to make the affidavit, it be-veloped that they were not qualified electors of the county,
ARK.] DAME V. STATE. 1111 • As' they had not paid their pen taxes in:.the time prescribed by law. . The examination, 'moreover, failed 'to show that the affiants had such a general knowledge of the sentiment of tbe people of 'the county generally as would qualify them as credible persons within the meaning .of the statute. Spear v. State, 130 Ark. 457, 198 S. W..113. When the court held that the affiants were not qualified .to make the affidavit, appellant offered as witnesses on his motion several bystanders. The court refused to permit them to testify, over the objection and exception of the appellant. In this action the court was correct.. "No requirement of the statute was met by the, testimony, of the three bystanders called . by the appellant, , and the, court properly disregayded their evidence, as they testified in regard to the truthfulness of the recitals of the petition rather than as to the credibility . of the , affiants." White-head v. State, 121 Ark. 390, 181 S. W. 154. 3. On examination of the 'jurors on their voir dire, counsel for. appellant, when certain •of the jurors* stated that they had beard the case discussed, asked them if the comments they' had heard were unfavorable lb the appellant. The court refused to permit the question to answered, and this action of the• 'court is assigned as error. It is sufficient, however, to say that • the recOrd 'does not show what was the expected answer. 4, 5 and 6. A witness was permitted . to testify' nver the objection of apPellant that the material of which the hotel was constructed would not easily catch fire: . We are nnable to see -wherein rejudice could have . restated •to the appellant hy the admission of this testiinony although it seems not to have been material. The lessee of the hotel was permitted to testify that -he had suffered l a loss of $6,000 in the fire by reason of the destruction of personal property. • This testimony was competent as tending to rebut an, insinuation to the •effect that the lessee himself might have been the incendiary. A witness, on cross-examination, .was not Perthitted by the court to answer the question: ' You. are under indictment now at Corning for stealing'hogs, are you not ?'' This question was improper, and the court was:correct in
1112 DAME V. STATE. [191 its holding. Kincaid v. Price, 82 Ark. 20, 100 S. W. 76 ; Hunt v. State, 114. Ark. 239; 169 S. W. 773. 7 and . 8: As : We view it, the most serious question 'preseMed is that . contained in the seventh and , ' eighth 'asSignment . of error. The seVenth relates to the competency : of' the confession of appellant . i]ltrodueed in evidence. Before the. introdnction of :the confession, testi--niony . Was taken relating to whether it waS-voluntary and Made Without the . promie of reward or induced by , threats of coercion: The teStimony of appellant' in this regard insinuates, withont stating poSitively, that personal Violence was suffered by him at- the hands of the eXamining official: ApPellant alsO stated that the ConfeSsiOn ras inch-iced, by a statement made to 'him to the effect' tbat. Pauline' Gearhaii, and his . nephew had confesSed, and that he had as well do so; and also 'by the suggestion made 'to hini by Mr. Piteock as-to . how he Would feel *hen he would be 'in the long line at the penitentiary," while •those Who: suggested tO him. and induced him to burn, the hotel "wOuld be sitting under an electric fan at Walnut Ridge." We. see nothing ip the last sug--gestion -to carry with it the intimation of any' threat, promise or compulsion; and as 'to. the 'statements made 'relative to the confession, Pauline 'Gearhart' and appellant's nephew bad Confessed, and the statements' made to appellant .were true. All those present when the confession was obtained testified with emphasis that : no. threats, hopes of reward or 'compulsion were .made or used; that the confession was .0, voluntary act of appellant, and that he .himself..dictated: the written confession , fo the stenographer. It 18 insisted that the sheriff admitted a threat to the appellant during the course of examination.' -Under the circumstances, and in view of the language used by the- sheriff to the appellant, we do not think that any threat was implied or so understood by appellant. The sheriff,in recounting the part taken•by him in the examination, stated that, when appellant talked first one way • and then another, "I said, 'Ben, if that is the way you • are going to• talk about it, we will give you all we dan,'
ARK.] DAME .V.. STATh.: 1113 and in about five minutes they called me• back in there and he -went ahead and made that statement " It seen's clear there was no threat either express-Dr implied, but a • mere expression of impatience .on the part of the sheriff. caused . by the contradictory statements. appellant • was making:. • The court fully .and fairly instrncted . the.jury on the competency . .of the confession, directing it.not.to .consider the same unless •it . believed : beyond a- Teasonable • doubt that appellant confessed voluntarily without promise Of • reward; and that his confession'was free of compulsion. or coercion. This instrUction was . more favorable to appellant than he was entitled. In order to 'establish the admissibility and•competency'df a: confession; i.t *is necessary only :that . the preponderance of the. evidence estab-: lishes its-free and voluntary 'nature. • • Pauline Gearhart was : called as a witness on behalf of the appellant and denied all complieity with, or knowlt edge of, the commisSion of the crime.. She ex0ained.ther presence in the -hotel on the night 'of the fire . by :stating that She was there to keep a , clandestine meeting with the appellant. On cross-examination she was questioned-without oh- • jection relative to stateMents she had-made cOntradietory of her testimony which were . to the effect that she-had gone to thehotel at.the suggeStion of appellant:and there agreed to, and . did afterwards, Set the hotel"on fire. •Her. written -confesSiOn was then permitted:to be read to: the jury over the objection and exception of the' appellant The written confession was immaterial,- since it added nothing to, or •took nothing from,' the ; effect of her .ad-- missions on cross-eXaMination. It is well settled-that one of the-methods of 'impeachment is to show that the witness has made : . statements contradictory to the testimony given on the witness stand. The court so instructed the jury, and gave a cautionary instruction as to the confession of Pauline Gearhart, as follows "Gentlemen of the jury, the court wants to instruct you strictly that this statement is to be considered by you
1114 DAME V. STATE. [191 only as going to the credibility of this witness, and the statement which she admits having made and saying it was true at the time she made it, but now says it is not true, is not to be considered by you in any way as tending to show the guilt or innocence of the defendant. It is only to be considered by you as testing the credibility of this witness, and you will be governed strictly by that rule.. In other words, any statement made since the commission of the crime camiot under the law be used as evidence against this defendant. It is only introduced to shoW possible contradiction of what she said in the past and what she says now and testing her credibility as a witness now.'' 9. We attach no significance to the complaint made in this assignment of error relative to a question asked appellant on cross-examination. • "Q. At the time they Arrested you, they told you that Jack Dame (nephew of appellant) • ad confessed to breaking in .with you in the fire house." This question was asked in connection with questions relating to the confession of appellant which he had repudiated on the witness stand. It seems to us that no prejudice could have resulted from the question propounded. 10. This assignment of error challenges, the correctness of the court's instruction relating to the con-, fession of appellant. This has already been noticed and was most favorable to the appellant. 11 and 12. Finally, error is assigned because of im7 proper argument made by attorneys fot the. State. We do not set out the statements of counsel because we are fully satisfied that both statements were legitimate and fully warranted by the testimony in the case. . We find no reversible error, and the judgment is therefore 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.