{ "id": 1559365, "name": "Turner v. State", "name_abbreviation": "Turner v. State", "decision_date": "1915-11-15", "docket_number": "", "first_page": "40", "last_page": "45", "citations": [ { "type": "official", "cite": "121 Ark. 40" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "117 Ark. 384", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1564932 ], "opinion_index": -1, "case_paths": [ "/ark/117/0384-01" ] }, { "cite": "101 Ark. 147", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1311065 ], "opinion_index": -1, "case_paths": [ "/ark/101/0147-01" ] }, { "cite": "77 Ark. 444", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1499096 ], "opinion_index": -1, "case_paths": [ "/ark/77/0444-01" ] }, { "cite": "59 Ark. 422", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1327674 ], "opinion_index": -1, "case_paths": [ "/ark/59/0422-01" ] }, { "cite": "45 Ark. 132", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1891999 ], "opinion_index": -1, "case_paths": [ "/ark/45/0132-01" ] }, { "cite": "87 Ark. 39", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "100 Ark. 301", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1312241 ], "opinion_index": -1, "case_paths": [ "/ark/100/0301-01" ] }, { "cite": "99 Ark. 394", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1314492 ], "opinion_index": -1, "case_paths": [ "/ark/99/0394-01" ] }, { "cite": "104 Ark. 245", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1350629 ], "opinion_index": 0, "case_paths": [ "/ark/104/0245-01" ] }, { "cite": "117 Ark. 233", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1564969 ], "opinion_index": 0, "case_paths": [ "/ark/117/0233-01" ] } ], "analysis": { "cardinality": 543, "char_count": 11172, "ocr_confidence": 0.434, "pagerank": { "raw": 7.454604561672698e-08, "percentile": 0.44451935228656186 }, "sha256": "a3b2771cda81f09690393401254dd3533dffa600bbddde19bb4c27214a9f5892", "simhash": "1:ab38629e50d631db", "word_count": 1957 }, "last_updated": "2023-07-14T19:35:38.519565+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Turner v. State." ], "opinions": [ { "text": "Kirby, J.,\n(\u00a1after stating \u00a1the facts). It is contended, first, that the court erred in refusing the continuance. A -continuance w-as granted, however, upon the first request therefor, from the special to the regular term of court -and the cause set down for trial the first day and the record does not disclose the exercise of -sufficient diligence by the appellant in procuring the attendance of the absent witnesses for the trial upon the day set, to warrant the court in continuing the cause further, because of their absence, and there was no abuse of discretion in the court\u2019s denial of the motion.\nWe do not think the court committed error in admitting in evidence the proof of .the .statement of the witnesses of what Collin Turner, who fired the fatal shot, said to him in the absence of 'appellant on the morning of the killing about not liking the way Walter had been treated the night before and that he was not going to stand for it.\nThere was sufficient testimony to show in his statements of like kind' to others in the presence of Walter and their being almost continually together on the morning of the killing, a concert of action between them and an unlawful common design upon their part to whip all those who had engaged in the difficulty with Walter on the night before.\nIn Cantrell v. State, 117 Ark. 233, the court said: \u201cThe rule in such oases is well defined and has been announced in a number of the decisions of this court. The proof of such conspiracy is another of those preliminary questions to be passed upon iby the court, and where evidence is offered which is sufficient to make a prima facie showing of the existence of such conspiracy, then all the acts and declarations of each conspirator during the progress of the conspiracy are admissible against his co-conspirator. It is not often that these conspiracies can be shown by express agreement. Their existence is more often shown by the proof of 'circumstances, the concurrence of which leads one to believe that the parties are acting from a common unlawful motive. \u2019 \u2019\nThe appellant could be charged, as he was, as a principal in the commission of 'the crime, being present, aiding and abetting, or \u00a1ready and consenting to aid and abet by 'alleging that he killed the deceased, Joe Hunter, (by shooting him with a pistol, when the shooting in fact was done by Collin Turner. Hunter v. State, 104 Ark. 245.\nThere is no direct testimony that appellant had any knowledge that his brother, Collin Turner, would shoot and kill the deceased, Joe Hunter, but the testimony unmistakably shows that he was engaged in executing his threat to whip all those who had assaulted him :fhe night before. That \u00a1bis brother, Collin, who had declared he did not like the way he had been treated and would not stand for it, was present when he thrashed the town marshal, immediately before the shooting, advised him against, and prevented him from attacking the deputy sheriff, after finishing the marshal, while the deputy was warning, him not to do so, with his pistol presented for shooting at the time. He also knew that Collin had the pistol of the marshal 'and the testimony shows he was so close to Walter when he was shot by deceased as he advanced to attack ihim, that he shot deceased as he claims, while he was still standing with his pistol presented against Walter.\nHaving pursued the unlawful common design together, and the killing having resulted in its execution, whether it was contemplated or intended by Walter Turner or not, he was guilty with Collin Turner, who fired the shot, the jury having found necessarily that it was not justifiable. The majority is of the opinion that no error was committed in the giving and refusing of instructions and that there is no prejudicial error in the record. The judgment is accordingly affirmed.", "type": "majority", "author": "Kirby, J.," } ], "attorneys": [ "H. S. Powell, for appellant.", "Wallace Davis, Attorney General, and Jno. P. Streepey, Assistant, for appellee." ], "corrections": "", "head_matter": "Turner v. State.\nOpinion delivered November 15, 1915.\n1. Continuances \u2014 absent witnesses \u2014 discretion oe trial court.\u2014 When a cause was continued from a special to the regular term of the circuit court, the court will not he held to have abused its discretion when it refused a further continuance on the grounds that -certain witnesses sought by the defendant were absent, in the absence of a showing by the defendant of .proper diligence in procuring their attendance.\n2. -Evidence \u2014 statements of third party \u2014 homicide.\u2014In a prosecution for homicide, evidence of statements of accused\u2019s brother who actually fired the fatal shot, as to his opinion about a certain difficulty in which accused had been involved, held admissible.\n3. Homicide \u2014 accessory\u2014-indictment.\u2014-Appellant may be charged as a principal in an indictment charging murder, when he was present, aiding and abetting or ready and consenting to aid and abet, by alleging that he killed -the deceased, by shooting him with a pistol, when the shooting in fact was done by another,- -and a conviction thereunder will be sustained.\nAppeal from Callioun Circuit Court; Chas. W. Smith, Judge;\naffirmed.\nSTATEMENT BY THE COURT.\nAppellant was\u201d convicted of -manslaughter under an indictment regularly charging him with the murder of Joe Hunter 'by shooting him with a pistol, \u00a1and from the judgment brings this .appeal.\nIt appears -from the testimony that appellant on the night before the hilling, in the town of Tinsman, was severely beaten in a fight. The town marshal, Wallingford, Johnson, the deputy sheriff, Joe Hunter, and another man assaulted him. The next morning Collin Turner, brother of .appellant, came -down town inquiring about the matter and trying to ascertain the identity of those engaged in the -difficulty with Walter. He said to Mr. Johnson, that he did not like the way they had treated Walter Turner the night before; that he was not going to stand for it; that he might have to stand for it, but if he did, some one else would have to stand for something.\nWalter was on the side of the street in a crowd when this statement was made, while Johnson and Collin Turner were out under a tree talking. Wallingford came over and this witness, Speer, heard the Turner Brothers, appellant and Collin, talking and remembered that Walter said, \u201cI can whip any three of the D \u2014 s\u2014of b \u2014 s. This occurred about fifteen or twenty minutes before the killing. Walter Turner on the morning of the killing, assaulted the town marshal near the bank and, as they were fighting 'together, each holding to the marshal\u2019s pistol, a crowd .assembled and the marshal asked Collin to take his pistol, which he did .and shortly Walter was made to let the marshal up. He then started to attack B. L. Thompson, saying, with an oath, \u201cI will get you next.\u201d Thompson drew his pistol on him, and he then called him a D \u2014 s\u2014of a b \u2014 , .and asked Collin, his brother to give him the gun. Collin refused to do this and told him he would get shot and then they left and started towards Collin Turner\u2019s store, and Thompson heard Joe Moore say to Walter, \u201cwait until you catch him, without a gun, then you can get him.\u201d\nCollin Turner\u2019s store was across the street, opposite the drug store and post office and Walter Turner came up the street diagonally across from the bank, where the first 'difficulty had occurred, while Joe Hunter, the deceased, was standing, near the edge of the sidewalk in front of the drug store and post office. Hunter was in his shirt sleeves and was looking towards where the difficulty at the bank had occurred.\nSeveral witnesses testified that Walter Turner said with an oath to Hunter, while advancing on him, \u201cthere is no use for you to run, you are going to get yours now.\u201d Hunter told him not to come on .and that he \u00a1did not want any trouble with him, when he was about thirty feet away. He continued advancing, and was warned \u00a1again, and again when he was in -about eight feet of Hunter, when the latter drew a pistol from his pocket and shot Walter in the shoulder.\nJohn Moore then grabbed Walter and tried to push him haok -and Hunter turned and started into the drug store and was shot in the hack and killed by Collin Turner as he was -stepping inside the door, according to -the testimony of the -State\u2019s witnesses.\nThe deceased had said nothing to Collin Turner nor had Collin been heard to say -anything to him. Collin ran from towards his store with the pistol in his hand and came up to within fifteen or twenty feet of Hunter and shot him. He claimed to have fired the shot while Hunter was standing on the sidewalk with the gun presented at his brother Walter as if to fire -again, and other witnesses supported his statement of it.\nHunter had gone -around to the back of his barber shop the morning he was killed instead of down the sidewalk by the drug store, as was his- custom, desiring to \u2022a-void meeting Walter Turner, who was in the drug store.\nThe testimony of the witness relating what he had heard Collin Turner say to Johnson When Walter was not present -about not liking the way they had treated him the night before and that he was not going to stand for it, was objected to.\nA motion for continuance was filed because of the -absence of certain witnesses, in which it was alleged that Rose Edwards would testify that she went to Joe Hunter\u2019s barber shop on the morning of the killing and informed Hunter that Wallingford and Walter Turner were having -a fight; that he -at -once put his pistol in his pocket -and said, \u201clam going up there -and kill Walter Turner,\u201d -and immediately left the shop -and in a short time she heard the report of the pistol at the time Hunter shot Walter Turner.\nThe case was continued from the special term of court called for the trial of the -defendant until the regular term and the motion for a continuance was denied.\nH. S. Powell, for appellant.\nI. The motion for -continuance shows that appellant had exercised due diligence to procure the -attendance of the absent witnesses, Rose Edwards 'and Jiaike Wilson. Their testimony was material and would have thrown light on the question .as to who was the aggressor, and the motives and intentions of the parties to the difficulty. It was not -cumulative, -and no -other witness could supply the omission. The court erred in overruling the motion. 99 Ark. 394; 100 Ark. 301.\n2. The evidence offered as .to -a conspiracy was not admissible. The existence of a conspiracy between two persons only, can not be established by -evidence of acts or declarations of one- in the -absence of the other. 87 Ark. 39; 12 Cye. 442 ; 45 Ark. 132; 59 Ark. 422 ; 77 Ark. 444.\nNo conspiracy wlas -charged or proved, and the court erred in instructing the jury on that question. Supra; 101 Ark. 147.\nWallace Davis, Attorney General, and Jno. P. Streepey, Assistant, for appellee.\n1. The motion for continuance w-as properly over-, ruled. The record does not show due diligence. The case had already been -continued on -appellant\u2019s motion from the -special to the regular term, tan-d there is -no error in refusing successive motions under such circumstances.\n2. There was no error in admitting evidence of a conspiracy. There w-as -enough evidence \u00a1to justify the court in holding that there was a conspiracy, and in instructing the jury on that question. 117 Ark. 384." }, "file_name": "0040-01", "first_page_order": 64, "last_page_order": 69 }