{ "id": 8721629, "name": "Noble v. State", "name_abbreviation": "Noble v. State", "decision_date": "1938-01-24", "docket_number": "Crim. 4057", "first_page": "453", "last_page": "460", "citations": [ { "type": "official", "cite": "195 Ark. 453" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "92 S. W. 2d 868", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "192 Ark. 476", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1415079 ], "opinion_index": 0, "case_paths": [ "/ark/192/0476-01" ] }, { "cite": "187 S. W. 913", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "125 Ark. 111", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1553256 ], "opinion_index": 0, "case_paths": [ "/ark/125/0111-01" ] }, { "cite": "240 S. W. 708", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "153 Ark. 536", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1362267 ], "opinion_index": 0, "case_paths": [ "/ark/153/0536-01" ] }, { "cite": "245 S. W. 813", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "156 Ark. 288", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1358438 ], "opinion_index": 0, "case_paths": [ "/ark/156/0288-01" ] }, { "cite": "34 Ark. 469", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1875699 ], "opinion_index": 0, "case_paths": [ "/ark/34/0469-01" ] } ], "analysis": { "cardinality": 709, "char_count": 12728, "ocr_confidence": 0.499, "pagerank": { "raw": 5.0011153170616546e-08, "percentile": 0.3153573818396362 }, "sha256": "62926074dc583f9414de09e15d5ffb3f6c6f85b245167554ba39400df145b344", "simhash": "1:b4bd14238e540981", "word_count": 2273 }, "last_updated": "2023-07-14T23:00:53.579177+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Noble v. State." ], "opinions": [ { "text": "GkieeiN Smith, C. J.\nAppellant, a negro, was convicted of tiie crime of murder in the first degree and his punishment was fixed at electrocution. No brief has been filed by appellant, but the record hits been. abstracted by the .Attorney'General\u2019s assistant; also, the case was Orally argued on behalf of appellant by an Attorney who did not participate in the trial.\nInformation against appellant and Willie Turner was filed by the prosecuting attorney, alleging that \u201cThe-said defendants on the 10th day of April, 1937, in Miller county, Arkansas, did-\"unlawfully, wilfully, feloniously and with malice aforethought, and with premeditation and deliberation, kill and murder Joseph Hawks, a human being, by shooting the' said Joseph Hawks with ,a \u201egnn .while in the act of attempting to rob the said \u25a0 Joseph-Hawks, against the peace and dignity of the state- o'f Arkansas. \u2019 \u2019\nAppellant demurred to the information ohr the following\u2019grounds: (1) That the inf orm\u00e1tion does not al- . lege sufficient facts to charge the defendant, Willie Noble, -with-, a criminal offense. (2) That the information is fatally defective \u201cin that, if charging a crime at all, it charges two crimes in one couht,' in that it' charges the said , defendant with the crime, of murder in' the first .degree alleged to have been committed with malice aforethought, and with premeditation and deliberation, and then charges such defendant with murder alleged to have been committed while attempting to commit robbery.\u2019\u2019 The demurrer was overruled.\nSpecific objections were made to remarks by the prosecuting attorney, but we do not regard these remarks as having been improper, and, therefore, they, were not prejudicial.\nAppellant is alleged to have killed Joseph Hawks in the following circumstances: Richard Hawks and Joseph Hawks, brothers, operated a grocery store in Tex-arkana at the. corner ' of Thirteenth and State Line streets. It was customary for them to go from their residence to: the store and return- together, the residence being on Twelfth and Beech streets. In making the trips the \u00a1brothers would travel \u201ca little blind street and just cut across a trail there.\u201d On the night of the tragedy the store was closed about 9:30. At a dark place on the'blind street the brothers met two men. In telling of the experience, Richard Hawks testified: \u201cOne of the men ran a gun up against us hard and said \u2018stick \u2019em up and don\u2019t move.\u2019 He snatched my brother\u2019s gun out of his pocket, shot him, and then ran. We could not tell whether they were white or colored men, it was too dark. I thought the voice sounded like a white man. I think there was only one shot. It was the same shot that went through my brother\u2019s heart and through my shoulder; My brother knew that he had been shot, but didn\u2019t say: anything, just walked on until, we got near .McDonald\u2019s, house, and he said, \u2018I am done.\u2019 We walked on up .to the residence there and he said it again, and staggered.: I went to catch him and found out my arm was broken. My brother only lived a few minutes.\u201d\nJohn E. Stewart testified that appellant was living at his house when Hawks was killed \u2014 about a block from the scene of the tragedy. \u201cAppellant would talk about \u2018holding up\u2019 all the time. He talked about the Hawks brothers and said he thought they had some money \u2014 : would say this when he saw them passing the house. The day Mr. Hawks was killed I took appellant-to the Kress store. He came out of the store and said he had bought some tape. When I got back'home I asked him what he was going- to do with the adhesive tape, and he said he was going to pnt it on his face-to look like he had been in a car wreck. That night he called me into his room and showed me two guns lying on the floor. He said he had taken one of them from the old man-, and had \u2018hit him a hard lick,\u2019 but didn\u2019t say he had shot him/ I didn\u2019t pay much .attention to him, just thought he was talking. Finally the guns disappeared. He told me' he had taken one of the guns from the old man, but he never did- tell me who the old man was that he had the tussle with.\u201d\nA pistol was shown the witness, and he said: \u201cThat looks like the gun he had \u2014 it was. a white handle gun. The gun Chief Davis showed me at the police station right after that happened looks like the same gun. I went with the Chief out to New Town and got the gun at William Whitaker\u2019s house. I would know this gun for a certainty.\u201d Witness said that he did not know Willie Turner.\nOn redirect examination he said: \u201cAfter I heard the ambulance appellant came back to the house in about thirty minutes. That was when he called me to his room. He had the two guns at that time.\u201d\n\u2022 Willie Turner testified: \u201cI am 33 years old, and my nickname is \u2018Dago.\u2019 Have known appellant two or three years. Appellant shot Mr. Hawks, and I was with him. I talked with appellant the night before Mr. Hawks was killed. ' He called me and showed me the gun he had, and said it was a good gun to hold a man up with. He said that the two old men down on State street would come by there. lie said he had to have money quick. He told me that he wanted me to go with him, as he was going to- hold Mr. Hawks up. I went to his house the night, of .the killing. \u2022 Didn\u2019t stay there very long, but went back out there to the oil field \u2014 the vacant lot between Ash and Beech streets. Appellant left the house with the gun. It was the gun you have showed me. I had nothing* on -me but a bowie knife and I lost it that night. I showed the knife to appellant at his house before Mr. Hawks was shot. He picked it up in his hands. We went up to some trees and waited. We Avere on the trail, and when he said \u2018halt,\u2019 I just kept going. . When the gun shot one of them said, \u2018don\u2019t kill my brother,\u2019 and I broke and ran. Appellant fired that shot. When -I went up to that vacant lot I knew appellant was going to hold up the Hawks brothers, but didn\u2019t know I was going to do it \u2014 I was just going along with him. He told me the two old men had a store. After that I went on home and didn\u2019t see appellant until he came to my house one day that week. He asked me how I felt, and if I had heard anything. He said that if I heard anybody talking they wouldn\u2019t talk long \u2014 \u2018they won\u2019t talk any more. \u2019 I never saw appellant after that until I was arrested. \u2019 \u2019\nOther testimony was introduced, including as an exhibit the borne knife identified by Willie Turner, on which was a finger print (right thumb) of appellant, identified by C. L. Thompson, a member of the Texar-kana police department, in charge of the \u201cfinger print and identification bureau.\u201d We do not think it necessary to show the nature of additional evidence. Such evidence, considered in connection with the confession of Willie Turner and the corroboration by John B. Stewart, was sufficient to warrant the jury in returning its verdict. ' \u2022\nAppellant denied that he was guilty. He denied all knowledge of the crime; denied that he was with Willie Turner that night; denied that he talked Avith John B. Stewart about robbing the Hawks brothers. He undertook to establish an alibi, saying:' \u201cOn the night of the killing I stayed at my wife\u2019s house at 917 Laurel street \u2014got there about seven o\u2019clock and did not leave the house that night. I know Willie Turner\u2019s face when I see him, but I did not make any plans with him.\u201d\nIn the instant case no motion for a new trial was filed; and, Avhile in capital cases it is not necessary that exceptions be saved, it is essential that objections' be made,- otherwise the testimony or other matter complained \u00f3f on appeal will be presumed to have been waived.\nAppellant contends that: the charge in the information that he committed the crime of murder while attempting to commit robbery is inconsistent with the ' charge that the crime was premeditated, and that it was committed with malice aforethought.\nIn Harris v. State, 34 Ark. 469, it was said: \u201cWhere an act itself indifferent becomes criminal if done with \u00bf\"particular intent, there the intent must be proved and 'found; but' where the act is in itself unlawful, the proof of justification or excuse lies on the defendant; and, on failure thereof, the law implies a criminal intent. \u201d\nThere are many cases to the sa\u00edne effect, a more recent one being that of Brown v. State, 156 Ark. 288, 245 S. W. 813, where it was said: \u201cWhile it is true as a general rule that every person is presumed to contemplate the ordinary and natural consequences of his acts, such presumption does not arise where the act fails of effect or is attended by no consequences; and where such act is charged, to have been done with a specific intent, such intent must be proved,, and not presumed from the act.\u201d\nThe definition of murder is: \u201c The unlawful killing of a human being in the peace of the state, with malice aforethought, either express or implied.\u201d Pope\u2019s Digest, \u00a7 2964.\n' .By \u00a7 2969 of the Digest it is provided that \u201cAll 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. \u2019 \u2019\nAlthough it is true (\u00a7 3837) Pope\u2019s Digest) that an indictment, except in the cases particularly excepted, must charge but one offense, yet as to a crime which may have been committed in different modes and by different-means, the indictment may allege the modes find means in'the alternative; The-appellant; in Franklin v. State, 153 Ark. 536, 240 S. W. 708, was charged with having murdered\u2019 Thomas N. Mann \u201cby striking him on the head with a certain hlnnt instrument, and by shooting him with a certain gun.\u201d It was insisted, on appeal, that the crime of murder .in the first degree was not sufficiently charged in the indictment. .The opinion-says: \u201cIt is true the methods are charged in the con-, junctive, but there is nothing in our statutes prohibiting \u2022 them.being charged in the conjunctive if consistent. In other words, if the murder resulted from several acts consistent with each other, all the acts might be charged in the conjunctive and embraced in one count. Mr. Bish- \u2022 op, in his work on New Criminal Procedure, vol. 1, \u00a7 43, enunciates the doctrine in the following language: \u2018 Some single offenses are of a nature to be committed by many means, or in one or another of several varying ways. Thereupon a count is not double which charges as many means as the pleader chooses, if iiot repugnant; and, at the trial, it will be established by proof of its commission by any one of them.\u2019 The same rule of procedure is announced by Joyce on Indictments, \u00a7 401, and in the Standard Enc. of Procedure, vol. 12, p. 516.\u201d\nSection 3836 of Pope\u2019s Digest reads: \u201cNo indictment is insufficient, nor can the trial, judgment or other proceedings thereon be affected by any defect which does not tend to the prejudice of the substantial rights of the defendant on the merits.\u201d\nThe phrase \u201cmalice aforethought, \u201d as quoted with approval in Gordon v. State, 125 Ark. 111, 187 S. W. 913, Ann. Cas. 1914A, 419, is defined as \u201cThe voluntary and intentional doing of an unlawful act, .with the purpose, means and ability to accomplish the reasonable and probable consequences' of it, done in a manner showing a heart regardless of social duty and fatally bent on mischief, by one of sound mind and discretion, the evidence of which is inferred from acts done or words spoken.\u201d\nAt common law no distinction is drawn between malice and malice aforethought, and such malice in murder is not limited to, hatred, ill will, or malevolence,, but denotes a wicked, and -corrupt disregard of the lives and safety of others\u2014a failure to appreciate social duty. See 13 R. C. L. 763; House v. State, 192 Ark. 476, 92 S. W. 2d 868.\nThe statutory definition of murder does not include the word \u201cpremeditation,\u201d hut to constitute murder in the first degree, the act must have been perpetrated \u201cby means of poison, or lying in wait, or by any other kind of wilful, deliberate, malicious and premeditated killing. \u2019 \u2019 Following- the word \u201ckilling,\u201d as quoted, the disjunctive particle \u201cor\u201d is used \u2014 \u201cor which shall be committed in the perpetration of or in the attempt to perpetrate arson, rape, robbery, burglary or larceny.\u201d\nPremeditation, therefore, is not an essential element which must be alleged and proved when the indictment charges that the crime was perpetrated while the accused was attempting robbery.\nThe judgment is affirmed.", "type": "majority", "author": "GkieeiN Smith, C. J." } ], "attorneys": [ "Jack Holt, Attorney General, and Johiy P. Streepey, Assistant, for appellant. . ." ], "corrections": "", "head_matter": "Noble v. State.\nCrim. 4057.\nOpinion delivered January 24, 1938.\nJack Holt, Attorney General, and Johiy P. Streepey, Assistant, for appellant. . ." }, "file_name": "0453-01", "first_page_order": 469, "last_page_order": 476 }