Nail v. State

328 S.W.2d 836, 231 Ark. 70, 1959 Ark. LEXIS 467

• Court: Supreme Court of Arkansas
• Decided: November 2, 1959
• Docket: 4937
• Status: Published

Opinions

Carleton Harris, Chief Justice.

William Frank Nail, appellant herein, was convicted of the crime of Murder in the First Degree, and his punishment fixed at death by electrocution. From the judgment so entered, comes this appeal. Numerous assignments of error are contained in appellant’s motion for new trial, the first several dealing with the sufficiency of the evidence.

Proof reflected that Nail, James Moss, and James Leroy Montgomery, were convict trusties at the state penitentiary farm located at Tucker. Nail and Moss were riflemen on the plow squad, and Montgomery was the rider.¹ According to the State’s evidence, Nail was fixing the bridle on his horse, and when the horse kept jumping about, he picked up a piece of leather and began hitting the horse with it. Montgomery was sitting on a box, preparing to eat. Rising, and starting toward Nail, he told the latter to quit whipping the horse. Appellant replied that it only concerned him (Nail) and Captain Bruton, and when Montgomery continued walking toward him, appellant drew his pistol. The rider then backed off and stated, “You won’t get a chance to pull that pistol on nobody else”. According to witness Moss, Montgomery “started to turn and walk off and about that time I heard Frank’s rifle go off and he fired the first shot then. * * * Montgomery backed up and I backed up out of the way, too. Montgomery backed up and I walked out of the way and Montgomery run around the other side and Frank fired again. I told Montgomery, I said, ‘Montgomery, Frank is mad, you had better leave while you can’, I said, ‘You had better run, you had better go to the building or do something’.” Montgomery ran toward the bayou, while Nail mounted his horse, and according to the witness, fired two more shots. Montgomery ran under the bridge at the bayou. Further, from the testimony of Moss: ‘ ‘ Montgomery told him, he said, ‘I am not going to the man, I will call it off’, something like that, something of that nature, and Frank told him, ‘All right, come on out’.” Montgomery then walked out from under the bridge, holding up his hands, and Nail again fired. Montgomery fell. Other witnesses, in substance, corroborated Moss’ testimony. According to witness Jimmy Mullins, Nail “went down and told him to come out from under the bridge, that he wasn’t aiming to hurt him. He finally come out. Q. Did Mr. Montgomery say anything? A. Yes, sir, he come out with his hands up begging. Q. What did he say when he was begging? A. Well, he said he wasn’t aiming to tell on him — it was all over with. Q. Then what happened? A. Frank Nail said something, yes, it was over with, and up and shot him. ’ ’

According to Dr. Harold Morris, who was acting as coroner of Jefferson County, three bullets struck Montgomery, and he died as a result of such wounds. The proof was undisputed that deceased was unarmed at all times during the altercation. The evidence was certainly sufficient to sustain a first degree murder conviction.

It is urged in assignments Nos. 6 and 7, and objections made during the trial, that the court erred in admitting into evidence certain photographs depicting the scene of the alleged murder. The objection was based on the fact that the scene was not the same as on the day of the killing, in that some equipment and two automobiles were shown in the photographs, which were not so located on the day of the alleged crime. Evidence in the case reflected that the house, road, and bridge, shown in the pictures, were the same as when the shooting took place, and it was stated during the testimony that no automobiles were parked there at the time. The same contention was made, but rejected by this Court, in Williams v. State, 229 Ark. 1022, 323 S. W. 2d 922.

By assignment No. 10, and objections made during tbe trial, appellant claims tbe court erred in admitting into evidence his confession. Counsel contend tbat tbe confession was incomplete, and tbat Nail lacked tbe mental capacity to understand tbe confession. Buck Oliger,, a deputy sheriff, who took, and wrote tbe confession, stated tbat be included everything tbat appellant told him at tbe time of tbe taking. Tbe confession was taken in question and answer form, signed by Nail, and witnessed by two other persons. If it was felt tbat Nail bad made other statements which did not appear in the confession, counsel were at liberty to question tbe witness in detail. In fact, tbe court advised counsel tbat Oliger could be interrogated about any additional statements made by appellant. This action of tbe court conformed to our ruling in Whitten v. State, 222 Ark, 426, 261 S. W. 2d 1. Relative to tbe contention that Nail lacked mental capacity to understand tbe confession, it was obviously appellant’s duty to offer proof to tbat effect, and this not having been done, be was in no position to complain.

Assignments Nos. 8 and 9, together with objections during the trial, maintain tbat error was committed by tbe court in permitting tbe State to re-examine certain witnesses, it being contended tbat tbe matters under reexamination should have been included on direct examination. Tbe witness Moss was asked if tbe photographs correctly represented tbe scene of tbe homicide at tbe time it occurred. Since tbe introduction of tbe photographs bad been objected to on tbe ground tbat tbe scene portrayed was not tbe same as on tbe day of tbe murder, tbe evidence was proper rebuttal. Oliger was also recalled to testify in regard to taking Nail’s confession. "We have held tbat tbe reopening of a case either for tbe re-examination of a witness, or tbe taking of further testimony after testimony on both sides has been concluded, is a matter within the discretion of the court. Simmons v. State, 184 Ark. 373, 42 S. W. 2d 549.

Numerous assignments of error deal with the instructions given by the court, and the refusal of the court to give various requested instructions. Appellant specifically objected to the court’s instruction No. 12, which reads as follows:

“You are instructed that the premeditation and deliberation to do murder may be formulated in the assailant’s mind upon the instant. It does not have to exist in the mind an appreciable length of time. All that is necessary is for it to exist when the assailant commits the act; so if you find from the evidence on the whole case, beyond a reasonable doubt, that William Frank Nail, wilfully, deliberately, maliciously, with premeditation, killed James Leroy Montgomery, then you will find him guilty of murder in the first degree, unless you find the defendant insane as defined in these instructions. ’ ’

This specific objection was based on the contention that the instruction was in conflict with another instruction dealing with premeditation; that it gives unnecessary emphasis upon a negligible period of time as involved in the element of premeditation, is incompetent in failing to take into consideration the low mentality or mental defectiveness of the accused, and is vague. We find no conflict, nor vagueness, and further find that the instruction correctly states the law in conformity with numerous holdings of this Court, going as far back as 1869. McAdams v. State, 25 Ark. 405. See also Jackson v. State, 133 Ark. 321, 202 S. W. 683; Jenkins v. State, 222 Ark. 511, 261 S. W. 2d 784. As to that part of the objection relating’ to the failure to include a reference to the alleged low mentality of the accused, suffice it to say that the court’s instructions Nos. 14 and 15, given on the court’s own motion, properly instructed the jury as to the defense of insanity. Of course, the fact that one is simply of “low mentality”, is no legal defense to the commission of crime, unless of such low mentality as to render him incompetent. We have also examined the other instructions submitted, and find no-error therein, nor in the court’s refusal to give requested instructions.

By assignment No. 18, appellant contends that the-court erred in allowing the jury to separate. Ark. Stats.. (1947), § 43-2121, permits this to be done in the discretion of the trial court, and we held in Borland v. State, 158 Ark. 37, 249 S. W. 591, that this was entirely proper, no abuse of discretion having been shown, and. it not appearing that any of the jurors were subject to improper influences during the dispersion of the-jury. Likewise, in the instant cause, there is no showing that appellant was prejudiced by the action of the court permitting the jurors to separate. Preceding the-separation, the court admonished the jury as follows:

"Now, gentlemen, I want you to remember this distinctly, in all cases when you are permitted to go, the court has confidence in you, we are going to permit you to separate and go to your respective homes — do not discuss this case and do not permit anyone to discuss it with you because that would be highly improper and entirely wrong, and I am sure you will not do that. I want you to bear in mind, keep in mind, what I told you this morning, don’t discuss it with anyone. That means what it says, anyone, and do not permit them to discuss it with you — should they mention it to you, tell them you are on the jury and under orders of the court not to discuss it and as I said again this morning, if they insist it, bring it to the court’s attention, and we will attend to that. With that, be back in the morning.”

There was no request that the jury be admonished not to read newspapers, or listen to radio or television programs, regarding the trial.

It is contended that the trial court erred in denying appellant a new trial on the ground that nine of the jurors had read a newspaper article about the trial. Following an afternoon recess, when the jury had been separated, an account of the day’s proceedings was pub-listed in the Pine Bluff Commercial, and in next morning’s Arkansas Gazette. Appellant first complains that the Commercial stated the accused ivas serving a term for burglary and grand larceny, and the Gazette article stated he was sentenced for grand larceny. Counsel argue that appellant was greatly prejudiced by the fact that members of the jury, in reading the articles, became acquainted with appellant’s prior offenses. We do not agree. It necessarily was obvious to all the jurors that Nail had committed some offense, else he would not have been serving time in the penitentiary. If the articles had erroneously stated that Nail was serving time for rape, or some other crime of that nature, which might well tend to arouse prejudice in the mind of a juror, appellant would have a stronger point, but such was not the case. There was perhaps some slight discrepancy in the testimony of Deputy Sheriff Oliger and the written account in one of the newspaper articles, but we fail to see where this could be prejudicial, since the jurors had, at first hand, heard Mr. Oliger testify, and therefore, certainly were acquainted with his actual testimony. Appellant also objects to the lead sentence in the article which states that the accused “went on trial for his life.” This was certainly a correct statement, since Nail was being tried for first degree murder. In addition, the court made the following statement to the jury:

“The Court Avants to say something to the jury. Is there any of you who read the articles who cannot disregard the articles totally and try this case solely on the law and the testimony you hear here in the court room? The Court saw no hands. The Court is going to further instruct you if you read the articles, those of you who did, the Court is asking you to totally disregard anything you might have read in there and try this case solely on the evidence you heard here yesterday and today and the law as given you by the Court.”

Appellant has suggested error on two points that we feel merit detailed discussion. The first of these relates to the dismissal of a juror after the juror had been accepted, and after appellant had exhausted his challenges. The complete record as to what transpired is as follows:

“Mr. Brockman: At this time, Your Honor, I would like to excuse a juror that has already been taken.

The Court: All right.

Mr. Jones: If the Court please, we want to object to him excusing a juror that has already been taken.

The Court: The objection is overruled.

Mr. Brockman: The state will excuse Mr. McIntyre.

The Court: Mr. McIntyre is excused.

Mr. Jones: Well, note our objection —■ our objection is under the statute that the defendant is to have the last challenge as to each juror and the state has accepted him.

The Court: Yes, sir, note the objection.

Mr. Jones: Save our exceptions.

Mr. Steed: If the Court please, the defendant would like for the record to show that all of his challenges had been exhausted.

The Court: The Court has a record of them.”

Appellant argues that the court committed reversible error in permitting the State to challenge this previously accepted juror after the defendant had exhausted his challenges. In Williams v. State, 63 Ark. 527, 39 S. W. 709, this Court did hold such action to be prejudicial error, though a strong dissent was written by Mr. Justice Riddick. Under the Williams case, appellant’s contention would be correct, and he would be entitled to a reversal herein. However, the latest case dealing with point is Green v. State, 223 Ark. 761, 270 S. W. 2d 895, which was handed down on June 7, 1954, and rehearing denied on October 4, 1954. There, a juror was accepted by each side, but was later excused by tbe Court through fear that ineligibility might be assigned as error.² In an Opinion written by the late Chief Justice Grieein Smith, this Court said:

“Assuming, without deciding, that the disqualification could be waived, appellant has failed to show that he was prejudiced by the ruling. Insistence is that when the juror was removed, the defendant had exhausted his challenges. He does not, however, show that the person accepted in lieu of Baker was objectionable, or that the court on request would not have excused a questioned substitute under a rule of fairness if the person objected to could with reason be regarded as unfit, or favorable to the state’s view of the transaction. We have often said that a litigant is not entitled to a particular juror.”

Of course, in the Green case, supra, the juror was excused on the court’s own motion, while here, the juror was excused at the request of the state’s attorney. We see no material difference however, since this juror was actually excused by the court, and had the court refused its permission, the juror would have continued to serve. We recognize that these decisions are conflicting, but the Green case, of course, being the latest pronouncement upon this point, constitutes the law, and this construction has been in effect for more than five years. Actually, the Green case overruled the Williams case though the Opinion did not specifically so state. We therefore take this occasion to point out our adherence to the Green decision. As pointed out in that case, we have frequently held that a litigant is not entitled to a particular juror. This being true, there is no valid reason to refuse the request to excuse one who has already been taken, even though a defendant’s challenges have been exhausted, unless it first he shown that the defendant will he prejudiced hy the service of the venireman accepted in lieu of the juror excused. The record in this case, with reference to this matter, completely quoted above, shows nothing further. Counsel raised no objection to the substituted juror, nor endeavored to show any reason why the replacement could not, or would not, try the case with fairness or impartiality.

"While the Opinion in the Green case cited no authority for the Court’s position, such authority does exist. In People v. Rich, 237 Mich. 481, 212 N. W. 105, the Michigan Supreme Court said:

“After the defendant had exhausted his peremptory challenges, the prosecution was permitted to exercise peremptory challenges although it had previously expressed satisfaction with the jury. There was no error in allowing this to be done.”

We like the logic of the Michigan Court in the case of People v. Mullane, 256 Michigan Reports, 54 (a case similar in some respects to our own Green case, and also bearing some similarity to the case at Bar). There, the defendants were being tried on a charge of kidnapping, and it developed that two jurors, who had already been finally accepted by counsel for all parties, were probably disqualified by reason of prior jury service. These jurors were excused by the court. The defendants had theretofore exhausted all their challenges, and at a conference in Chambers, the trial judge announced that he would be “liberal in any reasonable objection to any juror which would be taken as a challenge for cause”, but would allow no more peremptory challenges. Two jurors were then called in lieu of the two excused, and after examination by counsel, the jury was completed and sworn. The defendants were convicted, and the action of the court in excusing the jurors after defendants had exhausted their challenges, was assigned, inter alia, as error, on appeal to the Supreme Court.

From the Opinion of the Supreme Court:

“The examination of these jurors does not appear in the record, nor do counsel claim that they were not in every way qualified to sit. * * * ”

Further:

“In what way can it then be said that the defendants were deprived of the right of further peremptory challenge by the course pursued? If defendants’ counsel chose to exercise all of their peremptory challenges before the jury were ordered to arise and be sworn, they took the chance that after they had done so it might be discovered that a person not qualified to sit was among the number in the jury box and that he or she might be removed therefrom by order of the court. # * # ? >

To this language, we might add that there is nothing to prevent a defendant saving a peremptory challenge for such a situation as occurred in the instant case.

If it be said that this holding may well permit a wholesale discharge of jurors after acceptance, we disagree.³ Of course, in the Michigan cases just cited, more than one juror was excused, but we conclude this is a matter that rightly directs itself to the discretion of the trial court, which conducts the trial, and is charged with the responsibility of maintaining a proper balance, seeing that no undue advantage is taken by either side. "We cannot conceive of any court permitting the challenge of several jurors already accepted, unless good and sufficient reason be shown, and such action by a trial court, without sufficient cause, might well constitute an abuse of discretion.

The purpose of the law is to give a defendant a fair and impartial trial, and in furtherance of affording full protection, a defendant is given more peremptory challenges than the State. To compel the showing of cause as to why a substituted juror should not serve, is certainly not an unreasonable requirement. Can it be doubted but that a trial court would quickly excuse a prospective venireman if the slightest hint of prejudice were shown? Nor can it be said that a defendant is discriminated against by permitting tbe State to exercise such a peremptory challenge, for if tbe circumstances are reversed, and tbe State bas previously exhausted all of its challenges, tbe defendant bas tbe privilege of peremptorily challenging a juror already accepted.

Appellant’s contention is held to be without merit. In order that there may be no misunderstanding, tbe case of Williams v. State, supra, is specifically overruled insofar as it bolds that tbe State cannot peremptorily challenge a juror, already accepted, after tbe defendant bas exhausted bis challenges; likewise, tbe cases of McGough v. State, 113 Ark. 301, 167 S. W. 857, and Temple v. State, 126 Ark. 290, 189 S. W. 855, are overruled to tbe same extent.

Tbe other point which, we feel, merits detailed discussion, relates to tbe testimony of Dr. E. I. Shaw of tbe State Hospital. Dr. Shaw stated that it was bis opinion that Nail knew right from wrong, and be further testified regarding tbe hospital staff report, which was introduced, relating to appellant. Dr. Shaw signed tbe report as tbe examining physician, and tbe report states that it is bis opinion and tbe joint opinion of tbe psychiatric staff that William Frank Nail was not mentally ill to tbe degree of legal irresponsibility at tbe time of tbe alleged commission of tbe crime, nor at tbe time of the examination. Tbe report was a composite report, compiled from tbe findings of fourteen state hospital physicians. Appellant accordingly contends that in admitting this report and permitting Dr. Shaw to testify relative to it, hearsay evidence was admitted; that be bad no opportunity to examine tbe unnamed persons whose findings were included in tbe report, and tbe admission of such evidence was highly prejudicial. In Gerlach v. State, 217 Ark. 102, 229 S. W. 2d 37, we held that it was necessary for tbe examining physician to sign tbe report and appear to testify. True, in tbe Gerlach case, tbe diagnosis is confined to tbe statement of tbe examining physician, i.e., tbe report states, “It is my opinion that Robert Earl G-erlach is mentally competent”, etc., but the report commences with the statement, “We⁴ have completed onr examinations in the case of Robert Earl Gerlaeh, who was admitted to the state hospital under Act No. 3, and I hereby certify that this is a true and correct finding of the facts in this case. * * *” While the exact point here raised was not urged in the Gerlach case, it has been subsequently raised and held to be without merit. In Leggett v. State, 228 Ark. 977, 311 S. W. 2d 521 (the second Leggett case), this Court said:

“The present petition states that Leggett, in connection with his plea of insanity, was sent by the court to the State Hospital for a medical examination. The petition charges that, although the Hospital’s report reflected the opinion of the examining medical staff, not all the members of the staff were called as witnesses at the trial. This omission, it is said, deprived Leggett of his constitutional right to be confronted with the witnesses- against him. U. S. Constitution, Amendment 6, Ark. Constitution, Article 2, Section 10.

This contention is foreclosed by our affirmance of the original judgment. This same argument was made upon the first appeal and was found to be without merit. The issue was not specifically mentioned in the opinion, for it was necessary to examine dozens of objections in the record, and, as is our practice, we limited our discussion to what were considered. to be the appellant’s strongest points. The Opinion explained, however, that we had examined the entire record and had considered all the issues raised.”

Since no discussion of the Court’s reasoning was included in either the first or second Leggett cases, we take this occasion to more fully detail the basis for this holding.

In the first place, only the defendant and his counsel know what defense will be relied on, and it may not be known until the day of the trial whether the defendant will plead insanity as a defense. Accordingly, it would seem most illogical, or unreasonable, to require all of the doctors, who participated in any phase of the examination, to leave their varied duties and travel to some point in the state, perhaps a long distance away, solely on the possibility that the defendant might want to call them as witnesses. In fact; Section 12 of Initiated Act No. 3, adopted in November, 1936,⁵ provides, “Witnesses employed by the State Hospital shall be so summoned to appear as to require as little loss of time as possible from their other duties.” Let it be remembered that the report is prepared and forwarded to the court and clerk sometime in advance of the trial, and there is nothing to prevent defense counsel from ascertaining the names of all the doctors who participated in any phase of the examination, and talking with those doctors relative to their findings. Should counsel then deem it advisable, particular doctors could be summoned to appear at the trial. Section 12 also provides, “The physician or physicians who prepared the report shall be summoned as witnesses at the trial at the order of the trial judge or at the request of either party, and if summoned, shall be examined by the court, and may be examined by either party, and a copy of the written report hereby required shall be given in evidence in every case in which the fact of sanity is an issue at the trial.” Accordingly, a defendant is not denied the opportunity to question those who examine him. Belative to the contention that the report constitutes hearsay evidence, we point out that hearsay evidence is, by legislative enactment, presently admissible in several types of cases.⁶ Such statutes, of course, authorize specific exceptions to the hearsay rule, and the people likewise by enactment, have the authority to authorize exceptions. The report is such an exception, and the act mandatorily requires that a copy of the written report be filed.

By assignment No. 4, appellant asserts that the verdict is excessive, but as we have many times stated, the matter of assessing punishment is strictly within the province of the jury, and we have no power to change the fixed punishment unless the proof fails to sustain the charge for which the defendant is convicted. See Allison v. State, 204 Ark. 609, 164 S. W. 2d 442, Rorie v. State, 215 Ark. 282, 220 S. W. 2d 421, McCall v. State, 230 Ark. 425, 323 S. W. 2d 421.

Other objections and assignments of error are noted, but a discussion of each would only prolong this Opinion, which is already lengthy, and serve no good purpose. Suffice it to say that we have considered each objection and alleged error, and find them to be without merit.

Counsel in this case were appointed by the trial court to defend appellant, and were paid a fee of $125 each, under the provisions of § 43-2415, Ark. Stats. (1947) Anno. Said statute provides inter alia that “any attorney at law appointed by the Circuit Court to defend a person charged in said Court with the commission of a crime, whether misdemeanor or felony, shall receive for his services in representing said accused a fee of not less than Twenty-five Dollars ($25.00) and not more than Two Hundred Fifty Dollars ($250.00), the amount of which shall be fixed by the Circuit Court.”⁷ Counsel list the work done in preparation of the case, suggest that the fee allowed was not intended to cover an appeal, and request an additional fee. It will be noted that the statute recites that the fee shall be fixed by the Circuit Court, which we consider a salutary provision, inasmuch as that court is familiar with the finances of the county, and has knowledge of the amount appropriated for this purpose. We therefore hold that the amount of fee awarded under this section is entirely within the discretion of the Circuit Court.

Finding no reversible error, the judgment of the Circuit Court is herewith affirmed, but there is a matter we think worthy of comment. The accused did not testify in his own behalf, and we note from the record that this decision was made by appellant himself. Counsel took appellant into Chambers, and requested the court to advise Nail of his rights. The court then explained that the defendant has the privilege at all times to either take the stand and testify in his own defense, or to not take the stand, and Nail was twice asked if he desired to take the stand. Each time, he replied that he did not. There is a heavy responsibility upon any attorney defending one charged with crime, and this is particularly true where one is being tried for a capital offense, and even more so when defendant’s counsel are court appointed. Under the circumstances of this case, we think these attorneys should be commended for leaving this decision to appellant, and making a record of the proceedings thereto, for when this is done, there is no possibility that an accused can blame his appointed lawyers for his failure to testify, possibly feeling that this omission contributed to his conviction, nor later embarrass them by stating that he was prevented from testifying by the advice of counsel. "We think the attorneys exhibited good judgment in handling the matter as they did, and we commend this procedure as worthy of consideration by any attorney acting under court appointment.

George Bose Smith, J., concurs. Bobinson & Johnson, JJ., dissent.

1 Riflemen, commonly called “high power”, have the duty of guarding the men forking under them, known as rank men. They ride a horse, and use a 30-30 high power rifle. The rider is the boss, and directs the rank men in their work. According to evidence by the assistant superintendent at Tucker, the rider carries a pistol when going to and coming from the job, but not when he is with the men.

2 When the juror’s name was called, he stated that he had served during the last court term, but the trial judge did not hold him disqualified. ;fj

3 That is, if one juror can be discharged at the instance of the State after the defendant has exhausted his challenges, additional jurors can be peremptorily challenged to an extent limited only by the number of peremptory challenges remaining to the State.

4 Emphasis supplied.

5 Under the provisions of this Act, a defendant may be committed for observation.

6 For instance, see § 48-940, which permits evidence, in certain liquor violation cases, of defendant’s reputation for boot-legging or being engaged in the illicit manufacture of, or trade in, intoxicating liquors.

7 This section provides that the quorum court of any county “whose population did not exceed 100,000 by the most recent federal census may make an appropriation to pay for the services of attorneys appointed by the Circuit Court to defend persons accused of committing a crime.” The appropriation must have been made before any fee can be allowed.