{ "id": 1488259, "name": "Fancher v. State", "name_abbreviation": "Fancher v. State", "decision_date": "1943-06-21", "docket_number": "4305", "first_page": "1085", "last_page": "1093", "citations": [ { "type": "official", "cite": "205 Ark. 1085" }, { "type": "parallel", "cite": "172 S.W.2d 680" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "60 S. W. 31", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "68 Ark. 466", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1333910 ], "opinion_index": 0, "case_paths": [ "/ark/68/0466-01" ] }, { "cite": "254 S. W. 376", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "160 Ark. 112", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8719664 ], "opinion_index": 0, "case_paths": [ "/ark/160/0112-01" ] }, { "cite": "204 Ark. 376", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1444184 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/204/0376-01" ] }, { "cite": "198 S. W. 113", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "130 Ark. 457", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8721530 ], "opinion_index": 0, "case_paths": [ "/ark/130/0457-01" ] }, { "cite": "20 S. W. 2d 119", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "179 Ark. 1079", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8726688 ], "opinion_index": 0, "case_paths": [ "/ark/179/1079-01" ] } ], "analysis": { "cardinality": 817, "char_count": 15406, "ocr_confidence": 0.474, "pagerank": { "raw": 5.8591662004228935e-08, "percentile": 0.3646504101204356 }, "sha256": "61d55518b399f8dcf8be8fc35b389f223f70db850934346160b93b1b8be18c24", "simhash": "1:2166f073282cc4b3", "word_count": 2579 }, "last_updated": "2023-07-14T20:00:03.571044+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Fancher v. State." ], "opinions": [ { "text": "Grieein Smith, C. J.\nClaris and Troy Fancher, brothers, were charged with having murdered Johnny Roberts. Claris was found guilty of second degree murder and sentenced to serve twenty-one years in prison. The verdict as to Troy was voluntary manslaughter and the penal sentence was seven years.\nError relied upon for reversal of the judgment against Claris is that the court abused its discretion in refusing a change of venue. The same contention is made by Troy, with the additional insistence that testimony was insufficient to support the jury\u2019s finding. .\nAppellants alleged in their petition that inhabitants of the Eastern District of Carroll County were so prejudiced against them that a fair trial could not be had.\n\u2022 Eleven affiants subscribed\u2019the petition for a change of venue. Ten were examined in open court. The ruling was that \u201c. . . none of said compurgators is credible. They are not sufficiently informed as to the sentiment of the Eastern District of Carroll County concerning [ability of the defendants] to secure a fair and impartial trial. \u2019 \u2019\nThere are fourteen townships in the Eastern-Distinct \u2014 Polo, Prairie, Caba\u00f1al, Omega, Yocum, Hickory, Liberty, Piney, Dry Fork, Long Creek, Coin, Carrollton, Osage, and Delmar.\nHammonds was the first subscriber to the affidavit Avho was interrogated. On direct examination he testified that the minds of the people were so prejudiced that the defendants could not get a fair trial. The witness liad visited the toAvn of Green Forest, in Hickory township; Berryville, in Prairie township; and Alpena Pass; He lived near Oak Grove, in Yocum township.\nOn cross-examination Hammonds said he had not been in Coin, Carrollton, Osage, Delmar, Dry Pork, Piney, or Liberty townships, but had heard the case discussed quite generally in Berryville and by people around Berryville.\nAmi C. Plowerton, of Green Porest, claimed to be well acquainted throughout the county. He did not think the defendants could get a fair trial. Plowever, on cross-examination there was the statement: \u2014 \u201cI guess twelve jurymen could he found who would give the hoys a fair and impartial trial, hut I wouldn\u2019t want the job of hunting them. \u2019 \u2019\nJohn Branham, while sustaining the defendants\u2019 contentions in his direct examination, and claiming to ho well acquainted \u201call over the county,\u201d conceded that twelve men might be found who would set aside their opinions, \u201cbut it would he better for everyone concerned if the case is removed.\u201d\nJ ohn D. Seals thought he knew the sentiment of the county, hut had not been in a number of townships and couldn\u2019t say he knew the defendants could not get justice.\nJerry Warren\u2019s testimony was similar to that given hv Seals.\nLee Cowan, on cross-examination, (as in his direct testimony) said that \u201cfrom the sentiment I heard, these men would.not make good jurymen. \u201d He resided in Long-Creek township, in the extreme northeastern part of the county, and had been in \u201cBerryville, Green Porest, Alpena, Enon, and Coin townships.\nE. E. Swor, residing three miles east of Green Porest, \u201cdoubted\u201d the defendants could procure a fair trial. He knew \u201clots\u201d of people in Liberty township, where the killing occurred \u2014 where the Fanchers and Johnny Roberts lived. Had also heard citizens of Coin township discuss the matter. On cross-examination this witness expressed the belief that it was possible to secure twelve men as jurors \u201cwho would take the oath, but I don\u2019t know whether it would be fair and impartial or not. . . . You might get a jury to try the case solely . on the law and evidence, but you would have some mountain to climb. \u2019 \u2019 On redirect examination Swor again expressed doubt that a fair jury could'be secured.\nS. S. Epley of Denver (Long Creek township) testified the defendants lived mostly in Liberty and Piney townships. Heard the case discussed at Berryville and Green Forest and knew the people in the county \u201cwho have influence.\u201d Did not know what the sentiment was in Osage, Delmar, Liberty, or Piney townships and would not testify that twelve men could not be found who would try the defendants fairly, but \u201cit would be hard for this to be done.\u201d On re-cross examination Epley testified that he \u201cstill believes a jury of twelve men, free of bias and prejudice, could not be found to give the defendants a fair trial. \u2019 \u2019\nE. E. Swor, recalled, said he had lived in \u201cthis\u201d district sixty years. Was acquainted with all the old Fanchers. \u201cHncle Polk\u201d Fancher was clerk and county judge. Tom Fancher was county judge and prosecuting attorney \u2014 both having been lawyers. Oden Fancher was \u201cfirst collector and then county judge. He ran against Clay Maples for county clerk for a second term and was elected. Here is my opinion: The Fanchers have held offices in this county for a good many years. People are not prejudiced against the Fanchers \u2014 only prejudiced against Tom and his boys, these defendants. Polk Fancher has been dead for thirty years. Tom Fancher left the county a long time ago.\u201d\nWesley Perkins, who lived three miles north of Berryville, had heard a lot of talk in Prairie township and didn\u2019t believe the defendants could get a fair trial. Hadn\u2019t talked to anyone from Yocum, North or South Long Creek, Coin, Carrollton, Osage, Delmar, Dry Fork, Piney, or Liberty townships.\nLee Richardson, of Melton (Omega township) testified that \u201cIf you were in the boots of the defendants, you wouldn\u2019t want to be tried here. I am talking principally about the sentiment at Berryville, in Omega, and in Dry Fork and Piney townships.\u201d On cross-examiiiation the witness admitted he had not been in Yocum or Dry Fork townships and: \u2014 \u201cThe only township I actually know about is where I live. All I know about the other townships is what I have heard. \u2019 \u2019\nSam McKinney, of Caba\u00f1al township, testified he \u201ccouldn\u2019t say whether the defendants could obtain a fair trial. Sentiment is strong against them, but it would b,e difficult to procure an impartial jury. \u201d\nA tabulation of the testimony given by the eleven witnesses, through whom it was undertaken to support the allegation of prejudice, shows that none was informed as to sentim\u00e9nt throughout the district. It might be said that a composite of statements includes testimony relating to sentiment in each of the fourteen townships. For instance, Sam McKinney, as an exhibit, introduced a poll list showing payment by 2,440 electors in the eastern district. On direct examination he claimed to have been \u201cover all the townships in the last two months.\u201d He .did not state, however, that adverse sentiment prevailed in all of the townships. The exhibit did not include Yocum. Only Richardson claimed to have been in Omega. Perkins had been in Polo, and Howard had been in Delmar. McKinney alone, of all the witnesses, claimed to have been in Caba\u00f1al.\nIn Heddin v. State, 179 Ark. 1079, 20 S. W. 2d 119, it was held that an affiant, to qualify as a credible person under what is now \u00a7 3918 of Pope\u2019s Digest \u201c. . . must be cognizant of the prejudice existing throughout the whole county and not merely in portions thereof.\u201d In Spear v. State, 130 Ark. 457, 198 S. W. 113, the statute was construed to mean that subscribing witnesses \u201cshall have fairly accurate information concerning the state of mind of the inhabitants of the entire county toward the defendant. \u2019 \u2019\nThe ruling in Bailey v. State, 204 Ark. 376, 163 S. W. 2d 141, is that the court did not err in considering affidavits traversing those offered in support of the petition for a change of venue. Tt is also said that witnesses may be heard to assist the court in determining whether allegations contained in the affidavits are true.\nThe concurring opinion in the Bailey case expresses the view that the trial court \u201cmay pass only upon the credibility of the persons who, b}r affidavit, support the petition for a change of venue. \u2019 \u2019 The writer of the concurring opinion cited Spurgeon v. State, 160 Ark. 112, 254 S. W. 376, where it was said that \u201c. . . the cases also hold that the statute on this subject does not contemplate that the truth or falsity of evidence shall be inquired into, and that the only question for the determination of the court is whether or not the affiants are credible persons, and that all inquiry must be confined to that question.\u201d\nIt would seem that the differences expressed in the majority and in the concurring opinion in the Bailey case relate to the word \u201ccredible\u201d \u2014 that is, What may the trial court consider in determining whether affiants are credible persons within the meaning of the statute? The majority opinion holds that the lower court \u201cis authorized to determine the truth of the matterand \u201cmatter,\u201d as there contemplated, appears to mean the content or substance of the affidavits; hence, the Bailey decision necessarily has the effect of broadening the scope of. inquiry courts are permitted to pursue and allows discretion in finding whether the affiant has the knowledge he asserts.\nIt is not accurate to say that the older cases hold that affiants may not be examined to ascertain the source of their knowledge, the scope of their information, and any other essential fact bearing upon credibility. While the court may hear testimony on the question of credibility, it may not permit witnesses to be called for the- purpose of giving independent testimony that a fair trial may be had, and that prejudice does not exist; nor maj1\" the court' substitute its own information or beliefs for those of the affiants when such information is dehors the record. Ward v. State, 68 Ark. 466, 60 S. W. 31.\nOne who swears recklessly or who is generally known to be wanting in reputation for truth and veracity, is not credible. If it should be shown that one who swore he knew the sentiment of a county had continuously been in a foreign state since the alleged crime occurred, his assertion of popular prejudice would not be the testimony of a credible person. Other instances of wanton or reckless disregard in respect-of the subject-matter might be shown. A broad discretion rests with the trial court, and this discretion should not be disturbed except for compelling reasons.\nIn the instant case the court did not discard testimony of the affiants in favor of a preconceived -opinion, nor did it accept testimony of contradictive witnesses. After considering statements of all who appeared, their admissions on cross-examination, their opportunity to be informed in respect of assertions made,, their expressed conception of impartiality in the light of constitutional and statutory guarantees \u2014 when these currents of interest, knowledge, and understanding were weighed in their relation to facts, it was the court\u2019s belief that prejudice had not been sufficiently shown by credible persons. \"We are not willing, therefore, to say there was an abuse of discretion.\nThe next question is whether evidence was sufficient to sustain the conviction. It is not seriously argued in respect of Claris that the testimony did not present an issue for the jury; but as to Troy the contention is that he had nothing to do with the homicide, but was merely an unfortunate spectator \" and the victim of circumstances.\nThe shooting occurred on a highway where the Fanclier brothers had parked two trucks. The truck operated by Claris was on the left of the road as Johnny Roberts approached in a Dodge pickup, followed by Q-ene Roberts, who was in another conveyance. Parker Miller was with Johnny. The road appeared to be partially closed with the Fancher tracks.-According to Miller, Johnny stopped and, addressing Gene, remarked apon the seeming blockade. Claris said, \u201cNo', yon can g'et through.\u201d The Fanchers were standing on a narrow bridge at the rear of one of the trucks.\nMiller testified that when Johnny \u201cstarted through,\u201d Troy stepped upon the running board on the right side. . Simultaneously Claris went in front of Johnny\u2019s car and caught the left running board. When Claris opened the cab door he was almost dragged off the Roberts car because of its close proximity to one of the parked trucks. Claris, after closing the door to avoid being hit, opened it again and pulled Johnny out and killed him. One shot was fired after the assaulted man struck the ground. The witness said, regarding the second shot: \u201cClaris Kinda bent,over and I heard the second shot.\u201d\nTroy ran around to the scene of action, then went back to the right side of the Roberts truck and, apparently addressing Miller, said: \u201cLord, what do you boys mean?\u201d Miller replied: \u201cI never did-you boys any harm.\u201d Troy said: \u201cNo, Parker \u2014 you are a good friend of ours.\u201d\nIt is in evidence that Claris\u2019 father and Johnny Roberts had disagreed a year or more before the tragedy and Claris, when told what had occurred, remarked that he would' do his father\u2019s fighting for him. There was other testimony indicating bad blood.\nGene Roberts testified that \u201cafter Johnny fell and didn\u2019t move there was another shot. \u2019 \u2019 After the shooting Claris and Troy went around to where Parker Miller was sitting in the cab, and Troy said: \u201cDon\u2019t hurt Parker \u2014 he is all right.\u201d\nLester Waldrop, who was near the Fancher brothers when the Roberts truck drove up, testified that after the shooting he saw Troy and Claris go around to where Parker Miller was sitting in the cab. Waldrop had previously stated that when Claris jumped on the running board \u201cTroy did nothing but just stand there.\u201d\nThere was testimony regarding conyers\u00e1tions between the Fanchers and members of their families \u2014 remarks made' before and after the killing. They shed but little light on the transaction; nor is there anything of a substantial nature in the record showing criminal participation by Troy. The case against him rests entirely upon speculation. While it may be true that he acted in concert with Claris, the State has not satisfactorily shown the connection. As to Troy the judgment is reversed, and the cause is remanded for a new trial. Affirmed as to Claris.\nAdditional statements in the motion were that brothers and other relatives of Johnny Roberts gathered within two hundred feet of the jail at Berryville the morning after the shooting, \u201cwhere they threatened an attorney for the Ranchers and their mother\u201d; that the court, fearing for the prisoners\u2019 safety, (or the sheriff on his own account) transferred, them to Benton County. Later Oscar Hamblin, Carroll County sheriff, was accused by brothers of the deceased of being prejudiced in favor of the Fanehers \u201cand threatened to do the sheriff violence.\u201d As a result, Hamblin shot and wounded Parker Roberts, a brother of the deceased. The court disqualified the sheriff and directed the coroner to act during trial. Finally, it was averred that the coroner, not being acquainted throughout the county, named two deputies \u201cto make out a special venire.\u201d\nIn the extreme southeastern part of Coin township on Highway 68 near the Carroll-Boone County line.\nOf the places named, only Coin is a township. There is also a community called Coin, in the township of the same name.\nR. O. Garner, who signed the affidavit attached to the motion for a change of venue, did not testify. Sam McKinney did not sign the affidavit, but testified.", "type": "majority", "author": "Grieein Smith, C. J." } ], "attorneys": [ "Claude A. Fuller and John W. Nance, for appellants.", "Guy F. Williams, Attorney General, and Earl N. Williams, Assistant Attorney General, for appellee." ], "corrections": "", "head_matter": "Fancher v. State.\n4305\n172 S. W. 2d 680\nOpinion delivered June 21, 1943.\nClaude A. Fuller and John W. Nance, for appellants.\nGuy F. Williams, Attorney General, and Earl N. Williams, Assistant Attorney General, for appellee." }, "file_name": "1085-01", "first_page_order": 1105, "last_page_order": 1113 }