476 HOTISE V. STATE. [192 HousE V. STATE.
Crim. 3980 Opinion delivered March 23, 1936. 1. CRIMINAL LAW—HOMICIDE.—Juries may consider the manner, of the killing in their endeavor to determine whether there was malice, deliberation or premeditation; so in a prosecution for homicide committed in perpetration of robbery where the indict--ment alleged that the killing was malicious, deliberate and premeditated, whether the killing was malicious, deliberate and premeditated was properly submitted to the jury, although it was not alleged that the homicide was in perpetration of robbery. 2. HOMICIDE—INSTRUCTION. — Where, in a prosecution for homicide committed in perpetration of robbery, the indictment charges that the killing was malicious, deliberate and premeditated, an instruction that if_defendant wilfully, unlawfully and feloniously, and with malice aforethought, and after premeditation and deliberation, or in an attempt to perpetrate robbery killed deceased, he was guilty of murder in the first degree was proper. 3. CRIMINAL LAW.—The presumption, in the absence of an affima-tive showing to the contrary, is that there was no error, and although one of the jurors had stated that if he were on the jury he would give defendant death it did not warrant the granting of a new trial, where, by the exercise of ordinary diligence, defendant could have discovered the jurors attitude.
ARK.] HOUSE V. STATE. 477 4. CRIMINAL LAW—ARGUMENT.—Although, in a prosecution for homicide, counsel argued that ,the jury should not give defendant life sentence because, at most, that would mean but about seven years when he would return to his old life of robbery and murder, defendant cannot complain where he failed to object thereto until jury retired, since the prosecuting attorney may argue kind and severity of punishment that should be meted out to offenders. Appeal from Garland Circuit Court ; C. T. Colham, Spedial Judge ; affirmed. W. D. Swaim, for appellant. . Carl E. Bailey, Attorney General, Guy E. 'Williams and J. F." Koone, Assistanth,-for appellee. BAKER, J. The grand jury in Garland County ih-diaed Roy House and Ayliff Draper of the crime of murder in the first degree for the killing of Tom Menser. The homicide occurred in March of 1935. Separate trials were awarded the parties, and upon the trial of House he was convicted of murder in the 'first degree, and his pUnishment was fixed at death. Tbis trial Was bad last Oc-tober. •He has appealed from that judgment of convic-• tion. He alleges several grounds • as a reason for the reversal. The' first is tbat fie was convicted of a crime .with which be is not Charged in the indictthent. The second is that the testimony conclusively shows that House and Dtaper had entered into a conspiracy to rob Tom Menser and that House bad withdrawn from this agreement prior to tbe commission of tbe crime' which was in fact Corri7 mitted by Draper. On that account, the defendant alleges that be was not guilty Of tbe. crirne: He -alleges farther-that one Richard Pittman, a juror trying the case, fraudulently imposed himself upon the court and upon the defendant by making false statements, deceiving the dourt and the defendant so that he was not excused by the court nor by the defendant. There were some objec-' tions urged to instructions given on the trial of this case, but said objections may be disposed of by the settlement of the matters above set out. If may be stated that substantially the only objections made were those above stated and to tbe argument of the . prosecuting attorney.
478 HOI.JE 'V. STATE. [192, Such objections as were made to instructions only tend to explain or ocCentnate further 'defendant's -position:' • Not . a great deal •of. the ,testimony will be set forth herein. Only a small . part of it will be argued. However, Whatever is , necessary to an 'explanation of 'the issues will be stated." The, first contention. of , , the defendant is , to, the, effect that he was indicted for murder ,in the first degree-and that the indictment does not , cliarge that the hon4cide occurred in the attempt' 'to COMmit a felonY, rohbery, and the defendant q rges and argueS, from 'his own 'testimony, that, although he had agreed With Draper that' they would yob Tom Menser, he withdrew from the agreement in, good faith, before any assault was made: npon: Tom. Menser in the, effort to.rob him, and that the assanit , was . made by- Draper without his ,consent :and after„he withdrawn from the. agreement or conspiracy that, the, two, .of. them :had . entered into for that:purpose; that he was therefore not guilty, first, because, he , did not strike, or beat Menser, who was killed by Draper, and,: second,. because of, his . withdrawal, prior to Draper 's .assoult. In the presentation of this theory, let it be said that, the two partiea, Draper. and House, went to the hotne of Menser in' the night time tb 'rob Menser. Hmise waO to gain admittanee because . he, was, known, to Menser; and. one :of them .was to 'hold him ,while the 'other proctred motley. or valuables which Ahey sought: 'When ',they. entered Menser's well-lighted-house, he was V,ery friendly. in inviting them to sit , with thim, and Honse, .according, to-his ... statement; ; sat down 'near Menser •:and Draper, walked behind .Menser.. House's • own:'evidence . as to his withdrawal is to the effect that he looked at Draper and. shook his head; that ,as Draper prepared.to assault Men1 ser he again, looked Draper in the 'eye :and- the second time he shook his head, Meaning,•as .he Said,• to . tell Draper: that their victith had been so kind that they must-not saulthim. Notwithstanding this telepathic conithunieation which House. interprets as indicating . his innocence -in. this.case, Draper made a violent ,assault upon the. victim with an implement which he .had taken from . the tool box
ihk HOUSE 12%.. 'STATE.' 479 of : the car indwhich: they:had . driven to•the home of . Men-son ... 11Ouse *as 'hOrfor. stricken, , unable to: move,. unable to . shont :a: protest at the • shOcking brutality of his companion and finally The victim was beaten inteinsensibility, aqici , House then : regained such , ; control , . of ° his shocked nerVes and ,Ov4caine his ahhOrrence of tfie brutal aSsault Of the h e ' lWess viann to the 6 ,-tent that he:helPed 1-21.raper :seareh the bloody corpse Of bi. aper's vietini and the hoUSe • in •, • . the cOMpletion ,the ,•• planned robberrY, froin'which'he says he had , withdrawn , a Ow . ming* before. . The 'fOrecr oing is the effeCt of HouSe's O . Wn St , a • t e-ment,, his own'teStiniony, and his explanafien Ofihis Con • duct. , , He'. argues • that. sinCe nObody disuted *hiSteSti-Mony that it Should be belieyed,' . 411 , Of it Was most , i3rbb-ably, helieVed • by the . jur , ;., excePt that at no tline' did itOuse' ',either hesitate ' Or aiteMpt to• ' 'thdraw from 'the . Scheme ' or plan that 'the 'tWO , ',had 'fOrnied. •■ fs' thp:f Since he WaS not indicted for, the crime of murde •0 r 4. in au atternt to.cOmmit another , felony, Malice,: aftei . p,re meditation and:deliberatiOn -; i 7 Ets licit *shown and he Nva4 •fher'efore not:guilty Of inUrder. • • • We haye. already :said in Many cases that the 'juries May Consider the • manner of . fhe killing in a deterMina- tio • n , . of *Wheth , e • r ,there was Malice, whether there • Nas 'de- liberation or , premeditation. The * lateSt • announceMent perhaps , upool iis o gstie, stion is the case of Dowell v State, 191' A ' rk. 311,86 S. W. (2d) '23; Vet6ii, v. State-s i68 Aric. 034, 270 S. W. 968. , It was entirely proper that this* case shOUld go to the jury ;, flint the:liothi side was committed in the :commission of : ihe 'tobbery:: •: This''court in the 'case of Spear .State,•184 : Ark,; : 1047, 44 'S.- W:. . (2d):; 663 "The general riile • is . : that all. who ;join iii:: a coinmon design to comMit cii ..unlaWf s 'act; .; the natural and : probable consequence !of t . Which involve• the : contingency of . taking:life; are" ie-spOnsible for a, hornicide-committe&by one of then/ whilc acting•in . pUrsuance' Or furtherance' of the : common 'design, although 'the- hemicide 'might : not-have been in contempla-•tion (of the' • partieS when they . 'conspired; to • co/Mint : the :Unlawful: act; and .. .although. the 'actual perpetrator :is' not identified. This rule was . recognized: in : Cali,.•State,
480 HOUSE V. STATE. [192 43 Ark. 99. In that case reference is made with approval to the case of Stephens v.. State, 42 Ohio St. 150, where the indictment appears to have been one which charged the offense of murder at common law." Although the indictment did not allege that the killing was one in the perpetration of a robbery, it did allege the malicious, deliberate and premeditated killing, and, under well-settled rule of decisions in this State, it was entirely proper to submit to the jury the question of the deliberate and premeditated murder. Powell v. State, 74 Ark. 355, 85 S. W. 781 ; Rayburn v. State, 69 Ark. 177, 63 S. W. 356; McCabe v. State, 149 Ark. 585, 233 S. W. 771 ; S!pear V. State, 184 Ark. 1047,44 S. W. (2d) 663. It must follow therefore that the court did not err in giving instruction No. 3 complained of by the defendant, which instruction is to the effect that, if the jury believe beyond a . reasonable doubt that the defendant, Roy House, on the 8th day of March, 1935, in Garland County,. Arkansas, did • wilfully, unlawfnlly and feloni-ously, and with nthlice aforethought, and after premeditation and deliberation, or while in the perpetration of or in the attempt to perpetrate robbery, kill and murder one Tom Menser by striking and beating him, the said Tom Menser, on the head and about the body with a. certain blunt instrument . and that the said Tom Menser died from the effects of the striking and beating, as charged in the indictment, you should find the defendant guilty of murder in the first .degree. Appellant urges that he was indicted under the provision of the statute which defines murder as the "unlawful killing of a human being, in the peace of the State, with malice . aforethought, either expressed or implied." He asserts that he was not indicted under that other provision of the statute which says : "All murder which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of wilful, deliberate, malicious and premeditated killing, or which shall be committed in the perpetration of or in the attempt to perpetrate arson, rape, robbery, burglary or larceny, shall , be deemed murder in the first degree."
HOUSE . V: STATE. '481 As . far as Akre• ltave been able to . determine . the appellant is insisting 1112011 a refinement in the Matter of in-structioii which this . Court has never made: The 'defend.- ant was charged 'with 'having dothmitted a 'crime; of mur-del .. .in first degree,;•b-Y beating and striking his .Victim 'with' a . bliint instruinent: This thorOughly apprised him of •. the charge and 'of , the , details or trimmer: in 'which ,it was committed. It was not, necessary . that the State; in making: that 'charge,' should attempt 'to 'discover and set up the motivating factor controlling the defendant in the commission of the crime.' The;prosecution has never been expected to 'assume a burden so great in a .. case of this kind. It matters'little_ whether defendant was convicted Upon acharge of premeditated'and deliberate-Murder; or a murder committed in perpetration of the' act of robbery. A conviction : . supported by substantial evidence, 'as this one is, Works' no prejudice whatever to any right of the defendant. • • Although the apPellant was present, aiding and abetting, the scene was beyond his . description. He sura med it up in these words: "I' was 'hurt, speechless,. to see that he had hit the old man and was down on top of him 'beating him.; I couldn't say how much he beat the old man, , but du . know it .was . ; awful, 'the worst I had ever saw, and it was my first.' • The same •question raised' by . appellant here . was argued :in the case- of Raybuni V. State; 69 Ark. -177, 63 S. WI 356. In that case Rayburn shot and killed Carpenter in 'the- perpetration of robbery; and the court 'gave sub.-- stantially . the 'sante_intruction 'in -the case as- No. 3.in this case, and this• court 'approved, the inStructiofi'in -the-followhig' language. : "The record shoWs affirmatively that the facts ; and 'circunistances. tended • `to prove-the ;murder as charged in 'the indictment.' . In the absence of 'any proof tending'to show that the homicide, although 'committed in the attempt to perpetrate robbery,..was:up- intentional, it must; be 'held that it 'was *as Stated T to be shown in .the record. .The court's Charge, so far as the record shows, -Was : but"based upon the proof.''•. This - court alSo said in the -case . of McCabe v..Stat'e, 149 Ark. ; 585, 233 S: . W. 771 . : "Malice might exist in the
482 HOUSE V. STATE. t192 commission of the homicide, even though the primarY purpose of the offender was to commit another felony, and it is generally a question for the jury to determine whether or not the crime was committed with malice aforethought, even though it was done in the perpetration of or in the, attempt to perpetrate another felony of the kind mentioned in the statute." See also Spear v. State, 184 Ark. 1047, 44 S. W. (2d) 663. On account of the fact that we have stated the effect andin some instances quoted from appellant's testimony, it perhaps is unnecessary that we argue appellants theory that he had withdrawn from the conspiracy before Draper committed murder in his presence. There is no evidence of his withdrawal, except his own bare assertion, followed by his confession that he lingered after the completion of this murder to rob the body of the victim of the conspiracy which he says was Ontered into between him and Draper. Again we may refer- to the case of* Spear v. State, supra, for the authority that when criminals are associated together, and while engaged in a common design, one of them intentionally kills a person they are attempting to rob, all are equally guilty. The only other question that has arisen and which deserves serious consideration is the charge that one Richard Pittman, a juror, upon his examination as to his qualifications, fraudulently imposed himself upon the court and the .defendant by asserting that he had not
formed or expressed any opinion as to the guilt or innocence of the defendant, when in fact appellant charges he had, shortly after the homicide was committed, expressed himself in rather strong or almost violent language in regard to the defendant. That question is presented to us by appellant in this statement in the motion for a new trial. " (21) The misconduct of juror, Richard Pittman, in withholding information in regard to statement of opinion previous to his qualifying as a juror." There is found in the record this affidavit : "Wil-lard H. Sharp, being first duly sworn deposes and says : That upon the day of Ayliff Draper 's arrest for the murder of one Tom Menser, he was at Richard Pittman's filling station on highway 170, and when it
ARK.] HOUSE V. STATE. 483' was mentioned concerning the abOve-stated arrest, Rich-ard Pittman Said, after reading 'the newspaper account and learning that Roy House waS being Sought for the same murder, 'That I 'could go into the jury box : and. burn those boys for the murder of Tom Menser, and if I happened to be one of the jurors, I would haye to give them death.' (Signed) Willard H. Sharp." The implied charge made here is a serious one. The word "implied" is used advisedly for the reason that the charge becomes serious only by inference, and by the assumption of certain facts which do not appear in the entire record. We have just quoted from the motion for a new trial. .This . is the only.stateinent with referenee to. this matter in the record presented on this appeal. Appellant's counsel, howeYer, argue in the brief that after the completion of the trial, while, eounSel was still in the court room, Sharp, whose affidavit is presented, offered this information to them , which they had not, prior to that time, been able to learn. They argue that that was their first information in regard to the facts. stated in Sharp's affidaYit. This May be true. That statement, however, is only offered bY way of argument. We . concede it to be our duty in every instance to protect the rights of the accused to the extent that he may have a fair and impartial trial, The .presumption in the nbsence of an affirmative shoWing to the contrary is that there was no error. The. burden is upon the appellant to : present such facts as show , that error was committed, and unless he is able, to do this, the errOr .will not be presumed. . He does not aliegein his motion for a new trial,-not-anywhere else in this record, the matter that be argues,, that is, that he did not have this . information at the . time Pittman was accepted on the jury. If the matters set np in Sharp's statement were true, We belieye, if we may judge from the frankness of_ Pittman himself upon voir dire, such facts would have been readily discovered ordinary diligence before the trialnr in the qualification of the jurors. Counsel will recognize the principle that the possibility of fraudulent or improper proof must necessarily require strict adherence to rules of practice
484 HousE .v. STATE. [192, requiring those who feel themselves aggrieved . by verdicts and judgments to .present the whole matter by record. to the trial court . withont relying• upon any unwarranted presumptions. The trial judge was in position to examine into matters, had facts been alleged that..the defendant bad .been imposednpon and was without infor-. mation which he alleges was obtained immediately following the trial: He has shown no prejudicial error. It is further argued that the prosecuting attorney was permitted to argue .improperly to the jury that,the jury . should pot give the defendant a . life sentence for the reason that a life sentence at most would mean but about seven years in the penitentiary, when the defendant would return to his old life of robbery and murde . r. But tbis objection was not made during the trial; nor argument. It was not until , the jury had retired . to consider the verdict that appellant made this objection and requested the court . to recall 1he jury and instruct the .jury that :the argument was improper and . should not be considered. This objection not only came too late, but we do not decide that it was improper. The cilse of H . aijan- T. State, 1.91. Ark. 437, 86 . S. W. (2d) 931, can be . of , , no aid to appellant here. In that case the error consisted in the statement of an alleged. fact by the prosecuting . attOrney . in the presenee bearing of the jury. This 'fact had a bearing upon the. guilt or innOcence of the defendant, or Served . tO inform. the jury in a determination of that quetion. Here the prosecuting attorney . was arguing,..as he explained, from statistics or matter's . of common knoWledge, that defendants convicted or sentenced to life imprisonment ordinarily 'served not exceeding seven years. There was nothing in this .bearing . in any • way 'upoi the' question of the guilt or innocence of the defendant. It related to but one proposition and that was relative to , the severity of the punishment that . should be administered. The prosecuting attorney may argue, in proper eases, the kind or severity of punishment that should be meted out to :offenders.
AR K.] 4$5 AVe have examined. this entire.record, and, although we have not discussed, in detail every . matter argued, we. find no error prejudicial to appellant's rights. • The judgment is 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.