944 COOK V. STATE. [179 COOK V. STATE. Opinion delivered March 25, 1929. 1. Homcmn—colutosolunoN OF CONFESSION.—The confession of defendant, made out of court, shown by the officer who heard it to have been free and voluntary and corroborated by other evi-' A dence of killing, held sufficient to sustain a conviction of murder in the first degree. ' 2. CRIMINAL LAW—AUTHENTICATION OF BILL OF ERCEPTIONS.—Only the circuit judge trying a charge of murder could authenticate the bill of exceptions, neither the official stenographer nor the clerk of the circuit court having such authority. 3. CRIMINAL LAW—MAI-A:RS CONSIDERED ON APPEAL.—Whether a certain instruction was given by the trial court can be considered on appeal only by an examination of the bill of exceptions. 4. HOMICIDE—FAILURE TO INSTRUCT AS TO LIFE IMPRISONMENT.—In a prosecution for murder in the first degree, failure of the court to instruct that the jury might fix the punishment at life imprisonment, instead of death, held error. 5. HOMICIDE—CURING ERROR BY REDUCING PurnsHAIENT.—Error in failing in a murder case to instruct the jury that they might fix the punishment for murder in the first degree at life imprisonment, instead of death, will be cured on appeal by reducing the punishment from death to life imprisonment. Appeal from Union Circuit Court, First Division ; L. S. Britt, Judge; modified. Syd Reagan. and John E. Harris, for appellant. Hal L. Norwood, Attorney General, and Robert F. Smith, Assistant, for appellee.
ARK.] COOK V. S1ATE. 245 WOOD, J . 0. L. Cook was indicted in the Union Circuit Court for the crime of murder in the first degree in the killing of one Freeman . Scott. The indictment was valid. The defendant was put on trial for the offense charged, and the jury, after hearing all of the evidence, the instructions of the court and . the argument of counsel, retired to consider their verdict, and afterwards returned into court the following verdict: "We, the jury, find the defendant guilty of murder in the first degree, as charged in the indictment." The defendant, by the judgment of the court, was sentenced to be put to death by electrocution, from which judgment he duly prosecutes this appeal. 1. Appellant's counsel contend that the evidence is not sufficient to sustain the verdict of mtrder in the first 'degree. It would serve no useful purpose to . set out the testimony in detail. Suffice it to say the- confession of the appellant, made out of court, which was shown to be free and voluntary by the officer who heard it, and which was corroborated by other evidence of the killing, was sufficient to warrant the verdict of the jury. See John-son v. State, 135 Ark. 377, 205 IS. W. 646 ; Henry v. State, 151 Ark. 620, 237 S. W. 454; Borland v. State, 158 Ark. 37, 249 S. W.- 591 ; Standridge v. State, 169 Ark. 294, 275 S. W. 336. 2. Counsel for appellant also contend that the court erred in not instructing the jury that it had a right, 'in case it found the appellant guilty of murder in the first degree, either to impose the death penalty or life imprisonment in the penitentiary at hard labor. Upon examination of the bill of exceptions we find that the trial \ court gave the following instruction: "You are instructed that, if you find from the evi-1, dence in this case, beyond a reasonable doubt, that the defendant, 0. L. Cook; in Union County, Arkansas, and before the return of the indictment herein into court, did unlawfully, feloniously, willfully, of his malice afore-.< thought and after premeditation and deliberation, kill k
246 COOK v. STATE: [179 Freeman Scott by cutting him with a knife,. as alleged in , the indictment, you will find the defendant guilty' of murder in the first . degree.-" • . • ..The En of eceptions does not Show that . the. Court instructed the-jury that ithad.the right, in case it found the . defendant guilty of :murder in; the first degree,' to 'fix his punishment at. life•imprisonment at hard:labor_ in Ahe State Penitentiary. At• the instance Of the State, the -clerk of this court iSsued a, certiorari: to. the•clerk of the . Union Circuit , Court,. suggeSting -ajdiminntion.'of the record' in omitting an instruction . given-by. the trial court advising, the jury that, in ;. the event . the defendant was convicted of murder in the first degreL--;—the jury could, under . the statute, 'fix th , e : punishment, a)-C 2* \ ife imprisonment, In _response to the certiorari .the cisk of the circuit Court Of * Union County sent up the followng: • "Gentlemen of- the jury, : if you- find .the defend \ c \ it guilty of murder in the first degree, your verdict will 'We, the jury, find ,the defendant guilty of murder inc \ . .the first degree, as charged in, the indictment' . This *).. verdict carries with it the death penalty; or you may _return a verdict in about _these- words, 'We, the jury, find the defendant guilty of . murder in' the first degree, as charged 'in the indictment, , and assess his- punishment at hard labor in the State Penitentiary for life.' "State of Arkansas, county . of Union. I, Walter F. Cawthon, offi.cial stenographic reporter for the Thirteenth Judicial Circuit 'Court of the State of Arkansas, do. hereby certify that the above instruction was given to the jury, at -the conclusion of argument of counsel, in the case wherein the State . of Arkansas was plaintiff and 0. L. 'Cook was defendant, the same 'being tried in .the Union Circuit Court. In witness whereof I have heretinto set my , hand on • this the 13th day of March; 1929: Walter F. Cawthon." • * . The clerk of Union 'Circuit Court certified- that the / above was a full, true and complete transcript of the diminution suggested. Neither the official stenographer
ARK.] .COOK V. • STATE. 247' of . the Union: Circuit'..Court nor the clerk thereof :is. anthorized to authenticate_ the bill of exceptions. Only... the circuit judge himself,- trying •the -. cause, could do.. that. See Beecher v. State, 80 Ark: 600; 97 S. W. 1036.iii Abbott v. Kennedy; 133'Ark. 105,.;201 S. W. 830; Blaak-ford. v:..GibsOn,i 144 . Ark. 240, 222. S. W. 367 ; Mo. Pac. Ry. Co. v. Brewer, 154 Ark. 96, 241 S. W: . 864. There is nothing in the transcript of _the record before us,. including the certiorari and response thereto, to show - that the above instruction, which the official- stenographer certified 'was given by the trial court was included in the bill of exceptions -signed by the ' trial: j. ndge,- and there . is nothing in the transcript to show that the circuit clerk - of 'Union :County omitted to copy the . alleged instruction from the bill of exceptions. There is no call for such instruction in the bill of exceptions. We can only determine whether certain instructions were given or refused by an examination of the bill of exceptions. The judgment roll or record proper does not show the rulings - _of the trial court on the prayers for instructions. Prayers for instructions granted or refused by the . trial court must be shown in the bill of exceptions, and -the bill of exceptions must be authenticated by .the trial judge. Therefore there is no properly authenticated bill of : exceptions : brought into this record, showing, that the trial court instructed the jury that it "had the . right, in the,, event it found the appellant guilty, of 'Murder-in the first degree, tO assess his pnnishment at hard . labor for:life . in the State Penitentiary. The Attorney. •General .has not nsked for further time to. Correct' the bill of exceptions," if -same could .. .be done; 'therefore we innst take .tlie record as we . no* find it. . . Since it ddes nota,pPear'from the'bill ;of -exCeptions that the . trial court:instructed- the jury as'io its right to.; render ,a verdict of life.:imprisOnment at• hard labor the State Penitentiary; thecotrt erred ...in,not '86 lustiuct- .; ipg "the , jury. = But This .RfrorT can 'be . *Cured:by Modifying the judgment of the -lower, court. s6 as . . to • reduce the:::
248 [179 punishment of the appellant to life imprisonment at hard labor in the State Penitentiary. It was so held in the recent case of Crowe v. State, 178 Ark. 1121, 13 S. W. (2d) 606. That procedure will be followed here. Accordingly the judgment of the trial court will be modified as above indicated, and, as so modified, will be affirmed. It is so ordered.
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.