Bunn, C. J.
This is an indictment for murder in the first degree, tried and determined in the Drew circuit court at its fall term, 1896, resulting in the conviction of both the defendants of the crime charged against them, and judgment and sentence accordingly, from which they appealed to this court.
On the 13th day of May, 1896, W. P. Skipper, a saw mill operator and merchant of Baxter, in said county, was found dead on the lower bank of Bayou Bartholomew, between said town and his saw mill, lying with his face downwards, and resting upon his crossed hands with palms down. There were two wounds, one as if made by a sharp knife across the throat, severing the jugular vein, and the other by a pointed instrument, penetrating the carotid artery. A pocket knife, with one blade open, was found in his right hand, but at the time the muscles of the hand were relaxed, so that the knife rested loosely in the hand. Two pools of blood from the wounds in the neck, one on either side, and under the arms, were discovered. In the bayou, just opposite where the body was found, there was a raft of saw logs destined for the mill below but which had in some way or for some reason been stopped at that point, and perhaps some of the logs had been detached, and were separated from the raft, but lay near by. The bayou had been somewhat swollen at the time of the death of Skipper, but when a particular examination of the locality was made, a few days after-wards, the water had fallen eighteen inches or two feet, and many tracks of persons wading in the water before the fall appeared in the wet ground after the water had receded therefrom. Among these tracks appeared those of the deceased; at least tracks answering to the peculiarly shaped shoes he wore at the time of his death. There were spots of blood also found on and about the logs, which indicated that persons about the time of the death had stood or walked on these logs. Various other indications of a struggle were observable at and near the place, and detailed in evidence. The higher or second bank of the bayou hid the body from the view of those passing along the neighboring road. •
The first question to be solved was whether the deceased was murdered or came to his death by his own hands. In favor of the theory that it was a suicide, the evidence was quite meagre, and all having reference to the state of physical health of the deceased, and his pecuniary embarrassments, claimed by the defense to be circumstances sufficient to account for the suicide. On the other hand, the position of the body when, found, the testimony of an expert physician and surgeon as to the contraction and relaxation of the muscles of the hands of one committing suicide by cutting his throat, and some testimony of non-experts as to whether the muscles were contracted or relaxed in isolated, but similar, cases coming under the witnesses’ observation, all, it was claimed by the prosecution, went to show more or less conclusively that the deceased had not committed suicide, and was therefore murdered. The testimony, however, upon which the verdict in this case is mainly founded is certain confessions and statements of defendant Redd, made to and detailed by others as witnesses on the trial, and, as to defendant Johnson, certain circumstances detailed by witness McKay, and sayings and conduct of Johnson testified to by McKay and others, which it was thought tended to incriminate that defendant.
The motion for new trial, omitting the usual formal grounds, sets forth the following grounds: inadmissibility of the testimony of W. F. Slemons; also the inadmissibility of the testimony of Iy. p. Morgan and that of W. C. Spain; the error of the court in giving the tenth instruction asked by the state, and in overruling the tenth and twelfth instructions asked by the defendant; and that the verdict was contrary to the evidence.
Por the purpose of determining the question whether or not the deceased came to his death by murder or suicide, the expert testimony of a physician was taken as to whether or not, in similar cases, the muscles of the hands would be apt to remain rigid or relax after death, the fact in this case being that the pocket knife found in the hand of deceased was loose, and not held by a rigid grasp. In addition'to this expert testimony, and apparently in support of it, the non-expert testimony of W. P. Slemons and I/, p. Morgan was introduced to prove by them, in the particular cases of suicide they had witnessed, committed in the same way as this one, if suicide at all, whether the muscles of the hands were contracted or relaxed after death.
While there are authorities which apparently sanction the introduction of such non-expert testimony, yet we think, upon the whole, such testimony is inadmissible, but that in the present case, however, the error was not prejudicial as to the case against Redd, especially since the confessions of that defendant probably furnished the only grounds upon which he was convicted, and his confession, as a matter of course, included the fact of the murderous killing-, as well as the connection of that defendant with it.
As to who is an accomplice. As to the objection to the giving- of the tenth instruction asked by the state, we do not think it well made, as that instruction substantially announces the law on the subject.
We think there was no prejudicial error in refusing the tenth instruction asked by the defendant, as the first and second instructions given by the court on its own motion, according to the uniform ruling of this court, substantially covered all the ground sought to be covered by the instruction refused.
The twelfth instruction asked by the defendant, and refused by the court, really has no evidence to support it, as it does not appear that any of the witnesses testified in consideration of an immunity from prosecution of charges pending against them, unless we are permitted to judge by inference alone. Besides, we think the instructions given fairly submitted the case to the jury.
We think the statements made by defendant Redd to witnesses Henry, and McCoy, and overheard by witness Spain, were voluntarily made, and his confessions and other statements made to these witnesses and detailed by them on the trial amount to sufficient evidence to justify the verdict of the jury against him, even treating the testimony of McKay as that of an accomplice.
The question as to whether or not McKay was an 4 accomplice was not submitted to the jury by the trial court, and is not raised expressly in the record, but was raised in argument before us on the question of sufficiency or want of evidence, and we do not feel at liberty to disregard it in a case of such serious consequences. It is the unquestioned rule that where that question in any case is submitted, to the jury, its finding on the subject is final, unless the testimony shows conclusively that the witness was an accomplice. The question moreover is one of mixed law and fact. Edmonson v. State, 51 Ark. 115; Melton v. State, 43 Ark. 367.
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Bunn, C. J.
This is an indictment for murder in the first degree, tried and determined in the Drew circuit court at its fall term, 1896, resulting in the conviction of both the defendants of the crime charged against them, and judgment and sentence accordingly, from which they appealed to this court.
On the 13th day of May, 1896, W. P. Skipper, a saw mill operator and merchant of Baxter, in said county, was found dead on the lower bank of Bayou Bartholomew, between said town and his saw mill, lying with his face downwards, and resting upon his crossed hands with palms down. There were two wounds, one as if made by a sharp knife across the throat, severing the jugular vein, and the other by a pointed instrument, penetrating the carotid artery. A pocket knife, with one blade open, was found in his right hand, but at the time the muscles of the hand were relaxed, so that the knife rested loosely in the hand. Two pools of blood from the wounds in the neck, one on either side, and under the arms, were discovered. In the bayou, just opposite where the body was found, there was a raft of saw logs destined for the mill below but which had in some way or for some reason been stopped at that point, and perhaps some of the logs had been detached, and were separated from the raft, but lay near by. The bayou had been somewhat swollen at the time of the death of Skipper, but when a particular examination of the locality was made, a few days after-wards, the water had fallen eighteen inches or two feet, and many tracks of persons wading in the water before the fall appeared in the wet ground after the water had receded therefrom. Among these tracks appeared those of the deceased; at least tracks answering to the peculiarly shaped shoes he wore at the time of his death. There were spots of blood also found on and about the logs, which indicated that persons about the time of the death had stood or walked on these logs. Various other indications of a struggle were observable at and near the place, and detailed in evidence. The higher or second bank of the bayou hid the body from the view of those passing along the neighboring road. •
The first question to be solved was whether the deceased was murdered or came to his death by his own hands. In favor of the theory that it was a suicide, the evidence was quite meagre, and all having reference to the state of physical health of the deceased, and his pecuniary embarrassments, claimed by the defense to be circumstances sufficient to account for the suicide. On the other hand, the position of the body when, found, the testimony of an expert physician and surgeon as to the contraction and relaxation of the muscles of the hands of one committing suicide by cutting his throat, and some testimony of non-experts as to whether the muscles were contracted or relaxed in isolated, but similar, cases coming under the witnesses’ observation, all, it was claimed by the prosecution, went to show more or less conclusively that the deceased had not committed suicide, and was therefore murdered. The testimony, however, upon which the verdict in this case is mainly founded is certain confessions and statements of defendant Redd, made to and detailed by others as witnesses on the trial, and, as to defendant Johnson, certain circumstances detailed by witness McKay, and sayings and conduct of Johnson testified to by McKay and others, which it was thought tended to incriminate that defendant.
The motion for new trial, omitting the usual formal grounds, sets forth the following grounds: inadmissibility of the testimony of W. F. Slemons; also the inadmissibility of the testimony of Iy. p. Morgan and that of W. C. Spain; the error of the court in giving the tenth instruction asked by the state, and in overruling the tenth and twelfth instructions asked by the defendant; and that the verdict was contrary to the evidence.
Por the purpose of determining the question whether or not the deceased came to his death by murder or suicide, the expert testimony of a physician was taken as to whether or not, in similar cases, the muscles of the hands would be apt to remain rigid or relax after death, the fact in this case being that the pocket knife found in the hand of deceased was loose, and not held by a rigid grasp. In addition'to this expert testimony, and apparently in support of it, the non-expert testimony of W. P. Slemons and I/, p. Morgan was introduced to prove by them, in the particular cases of suicide they had witnessed, committed in the same way as this one, if suicide at all, whether the muscles of the hands were contracted or relaxed after death.
While there are authorities which apparently sanction the introduction of such non-expert testimony, yet we think, upon the whole, such testimony is inadmissible, but that in the present case, however, the error was not prejudicial as to the case against Redd, especially since the confessions of that defendant probably furnished the only grounds upon which he was convicted, and his confession, as a matter of course, included the fact of the murderous killing-, as well as the connection of that defendant with it.
As to who is an accomplice. As to the objection to the giving- of the tenth instruction asked by the state, we do not think it well made, as that instruction substantially announces the law on the subject.
We think there was no prejudicial error in refusing the tenth instruction asked by the defendant, as the first and second instructions given by the court on its own motion, according to the uniform ruling of this court, substantially covered all the ground sought to be covered by the instruction refused.
The twelfth instruction asked by the defendant, and refused by the court, really has no evidence to support it, as it does not appear that any of the witnesses testified in consideration of an immunity from prosecution of charges pending against them, unless we are permitted to judge by inference alone. Besides, we think the instructions given fairly submitted the case to the jury.
We think the statements made by defendant Redd to witnesses Henry, and McCoy, and overheard by witness Spain, were voluntarily made, and his confessions and other statements made to these witnesses and detailed by them on the trial amount to sufficient evidence to justify the verdict of the jury against him, even treating the testimony of McKay as that of an accomplice.
The question as to whether or not McKay was an 4 accomplice was not submitted to the jury by the trial court, and is not raised expressly in the record, but was raised in argument before us on the question of sufficiency or want of evidence, and we do not feel at liberty to disregard it in a case of such serious consequences. It is the unquestioned rule that where that question in any case is submitted, to the jury, its finding on the subject is final, unless the testimony shows conclusively that the witness was an accomplice. The question moreover is one of mixed law and fact. Edmonson v. State, 51 Ark. 115; Melton v. State, 43 Ark. 367.
The question not having been submitted to the jury, and in view of the fact that witness was jointly indicted for this offense with the two defendants on trial, that the indictment against him is still undisposed of in any way, and the extraneous evidence adduced on the trial tending to connect the witness with the commission of the crime of murdering Skipper, although somewhat meagre, and not at all satisfactory, as may be admitted, we, or at least a majority of us, are of opinion that the witness McKay is to be regarded as an accomplice, and his testimony is admissible under the rules governing that of an accomplice.
The language of the statute on the subject, as digested in Sandels & Hill’s Digest, is as follows :
“Section 2911. ‘When two or more persons are indicted in the same indictment, either may testify in behalf of or against the other defendant or defendants.” Act approved March 2, 1893.
“Section 2246. -Where two or more persons are indicted in the same indictment, and the court is of opinion that the evidence in regard to a particular individual is not sufficient to put him on his defense, it must, on motion of either party desiring to use such defendant as a witness, order him to be discharged from the indictment, and permit him to be examined by the party so moving. The order is an acquittal of such defendant, and a bar to another prosecution for the same offense.” Criminal Code, § 233.
“Section 2230. A conviction cannot be bad in any case of felony upon the testimony of an accomplice, unless corroborated by other evidence tending to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely shows that the offense was committed, and the circumstances thereof. Provided, in misdemeanor cases a conviction may be had upon the testimony of an accomplice.” Criminal Code, § 240.
The testimony of witness McKay, as concerns defendant Johnson, was to the ; effect that while Redd, Johnson, and others of the mill hands had been previously taking their meals at his boarding house, yet at the time of the death of Skipper none were eating at his house except Johnson; that, on the day previous to the death of Skipper, Johnson, who was the engineer at the mill of Skipper & Befew, told him (witness, whose residence it seems was on the road leading from the town of Baxter, where Skipper’s store was located, to the saw mill, a short distance up the Bayou Bartholomew from Baxter) “to tell Mr. Skipper that there were some logs down the drift [which] were about to get away, and to tell him the next morning when he passed my (witness’) house.” This is the basic evidence upon which defendant Johnson was sought to be shown as connected.with the murder of Skipper. The theory of the prosecution was that this direction by Johnson through McKay to Skipper was part and parcel of the general scheme to lure the deceased to the secluded spot where he was murdered.
Witness McKay said further, in this connection, that about 6 o’clock a. m.- of the day Skipper’s body was found, Johnson came to his house for breakfast, and seemed to be in a great hurry, so much so that he finally went off without his breakfast, saying that he had some work to do at the mill that day. He went off just as witness was sitting down to the table to eat breakfast. Witness said about 8 or 9 o’clock a. m. the same morning- Johnson and another man passed by his house in a cart going towards Baxter from the mill when Johnson asked him if he wanted to talk to Redd; and that he saw no more of him during the day until, at supper time (Johnson explains his stay in Baxter until the afternoon), when Johnson told witness not to say anything to any body concerning him about the logs.
Opinion delivered April 24, 1897. We think the testimony of McKay is not corroborated so as to show the connection of Johnson with the killing, as required by the statute, and that, therefore, the verdict of guilty thereon was not authorized.
Affirmed as to Redd, and reversed as to Johnson.