{ "id": 8726402, "name": "McDaniel v. State", "name_abbreviation": "McDaniel v. State", "decision_date": "1958-04-28", "docket_number": "4902", "first_page": "1122", "last_page": "1127", "citations": [ { "type": "official", "cite": "228 Ark. 1122" }, { "type": "parallel", "cite": "313 S.W.2d 77" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "223 Ark. 761", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1650435 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/223/0761-01" ] }, { "cite": "213 Ark. 218", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1467137 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/213/0218-01" ] }, { "cite": "219 Ark. 385", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1609083 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/219/0385-01" ] }, { "cite": "212 Ark. 612", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1470317 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/212/0612-01" ] }, { "cite": "70 S. W. 312", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "71 Ark. 38", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1507855 ], "opinion_index": 0, "case_paths": [ "/ark/71/0038-01" ] }, { "cite": "259 S. W. 6", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "163 Ark. 103", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1383873 ], "opinion_index": 0, "case_paths": [ "/ark/163/0103-01" ] }, { "cite": "233 S. W. 688", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "149 Ark. 546", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8721318 ], "opinion_index": 0, "case_paths": [ "/ark/149/0546-01" ] }, { "cite": "6 S. W. 2d 34", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "177 Ark. 186", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8719659 ], "opinion_index": 0, "case_paths": [ "/ark/177/0186-01" ] } ], "analysis": { "cardinality": 602, "char_count": 10624, "ocr_confidence": 0.506, "pagerank": { "raw": 1.58642363447948e-07, "percentile": 0.6813026550968801 }, "sha256": "4b5c5486768fbb5f2d3654dfa5f3f32d9ee7394b7e60d2dbe49a7bbdcb6577a1", "simhash": "1:cbed9a35ce568fd6", "word_count": 1881 }, "last_updated": "2023-07-14T20:19:24.371217+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "RobiNSON, J., concurs." ], "parties": [ "McDaniel v. State." ], "opinions": [ { "text": "Paul Ward, Associate Justice.\nTlie principal issue on this appeal is the right of a trial judge to discharge a juror after all the jurors have been chosen and sworn to try the case.\nCharlie McDaniel, appellant, was charged with murder in the second degree for killing one W. J. Morrow. He was convicted of voluntary manslaughter and sentenced to serve a term of 2 years in the penitentiary. Some of the details surrounding the killing- are in dispute but we find ample evidence in the record to support the jury\u2019s finding.\nThe killing took place at the rural home of deceased on July 2, 1956. The record discloses that there had previously been some difficulty between them over the possession of the place where the deceased and his family were living. On the fatal day some of appellant\u2019s cows were found in the deceased\u2019s garden while the deceased was away from home. He returned about 8 P. M. and while he was eating supper his wife told him about the cows. About this time appellant and his wife drove up to the house in a truck and he began mending the garden fence. According to deceased\u2019s wife Morrow walked outside and said, \u201cCharlie what are you doing?\u201d Appellant replied, \u201cI am fixing the fence.\u201d The deceased said, \u201cLeave it alone and I will fix it in the morning.\u201d Thereupon as deceased was walking toward the garden appellant shot him. After the first shot witness heard 2 or 3 more shots. According to Mrs. Morrow her husband did not have a pistol. This version of the shooting was sharply contradicted by appellant\u2019s wife. According to her, while the deceased was approaching appellant, his stepson, Arnie Rhoads, was behind him with a shotgun in his hand. When deceased was about 17 feet away from appellant he said \u201cDamn you, I'said for you to leave that fence alone, and I will fix you and it too.\u201d Then the deceased reached into his hip pocket with his right hand, and, when he was about 6 feet away, appellant shot him. There were other conflicts in the testimony pertaining to the killing, but they were resolved by the jury under proper instructions by the court.\nOne. The principal question arose in the following manner. All 12 jurors were chosen and sworn to try the case just before the noon hour, when court was recessed until 1:45 P. M. Before the recess was taken the court dismissed all unused members of the regular and special jury lists \u201csubject to further services upon order and direction of the court . . .\u201d When court was reconvened at tlie appointed time tlie conrt made the following statement:\n\u201cIt has been brought'to the attention of the court that after the examination of the jurors on the voir dire examination by the attorneys and after the jury had been duly-sworn to try the case in question, that one of the Jurors, Mr. John E. Blackard, is related to the defendant, Mr. McDaniel, in the case, and without suggesting that Mr. Blackard would not be a fair and impartial juror in the case and that he would not conscientiously return such verdict as he thought justified under the law and the evidence, the court thinks that it is the best policy in compliance with the law on the face of the statements made that the juror is related within the fourth degree of consanguinity or affinity, and that he should be excused. The court at this time will excuse Mr. Black-ard from service on the jury. I am going to ask that counsel proceed with the special jurors until the panel is selected.\u201d\nBy Mr. Bailey: \u201cSave our exceptions, and the further objection, I also object to selecting another juror from the special list because the special list was discharged for the term, and only the ones that happen to be in Clarksville or in the Court House are available.\u201d\nIt is earnestly and ably contended by appellant that the above action on the part of the court in dismissing Blackard constituted reversible error. Section 39-102 Ark. Stats, provide that:\n\u201cNo person shall serve as a petit juror who is related to either party to a suit within the fourth degree of consanguinity or affinity. Provided, further, that any prospective juror who qualifies generally for service in a cause, and is found to be related within the fourth degree of consanguinity or affinity to any attorney engaged in the trial of the case may be peremptorily challenged for cause by any attorney or attorneys representing the other side of the case.\u201d\nAs we understand appellant\u2019s reasoning in support of the above contention it may be considered more clearly under two separate divisions.\n1. It was too late, says appellant, to discharge Blackard after the jury was completed and sworn in, citing Ark. Stats. \u00a7 43-1914 and \u00a7 39-115. The first section provides that a challenge to a juror \u201cmust be taken before he is sworn in chief, but the court, for good cause, may permit it to be made at any time before the jury is completed.\u201d The latter section provides exceptions shall not be taken to any juryman for cause after he is taken upon the jury and sworn as a juryman. It is urged by appellant that the statutes mean what they say and must be followed. The conclusion then drawn by appellant is that he had been placed in jeopardy, and therefore the court\u2019s action violated his constitutional right of a trial by jury. This reasoning however has been discarded by this court. In the case of Harris v. State, 177 Ark. 186, 6 S. W. 2d 34, the jury had been impaneled, sworn to try the cause, the opening statement of counsel made, and the testimony of one witness heard, when the court discharged a member of the jury (who was replaced by another juror) because it was disclosed that the challenged juror was on the defendant\u2019s bond. It was there held that the defendant had not been placed in jeopardy. In so holding the court relied on \u00a7 359, Crawford & Moses\u2019 Digest (Ark. Stats. \u00a7 43-1919) which reads:\n\u201cActual bias is the existence of such a state of mind on the part of the juror, in regard to the case or to either party, as satisfies the court, in the exercise of a sound discretion, that he can not try the case impartially, and without prejudice to the substantial rights of the party challenging. \u2019 \u2019\nAlso in Franklin v. State, 149 Ark. 546, 233 S. W. 688, and Martin v. State, 163 Ark. 103, 259 S. W. 6, we upheld the trial court in discharging a juror after the jury had been completed and sworn, denying the plea of former jeopardy. It follows therefore that the trial court, in this instance, did not commit reversible error in discharging Blackard, if he was in fact related to the defendant by affinity within the fourth degree, as found by the court.\nIt is urged by appellant, however, that Blackard was not so related. The facts as to the relationship, as set forth in appellant\u2019s argument, appear to he: Appellants\u2019 uncle married a sister to Blackard\u2019s father. If this is correct, then Blackard was not related by affinity to appellant, because his wife was no blood relation of appellant. We stated the applicable rule in North Arkansas and Western Railway Co. v. Cole, 71 Ark. 38, 70 S. W. 312, where it was said: \u201cAffinity is the tie which arises from marriage between the husband and the blood relations of the wife, and between the wife and the blood relations of the husband.\u201d\nThe trouble here, however, is that we find no competent evidence in the record to support appellant\u2019s version of the relationship. The alleged relationship is shown in a note made by the reporter. This of course does not constitute testimony in the case, and, moreover, it is not shown that the same information was brought to the attention of the court. It would appear from that portion of the record heretofore copied that the court was merely informed that the two persons were related within the fourth degree. Also, attached to appellant\u2019s motion for a new trial are two exhibits which show the alleged true relationship, but these cannot be considered as a new addition to the evidence taken at the trial. In Hyde v. State, 212 Ark. 612, 206 S. W. 2d 739, we said, \u201c. . . a motion for new trial cannot be used to bring into the record that which does not otherwise appear of record.\u201d Thus, viewed in the light of the decisions heretofore cited and the state of the record, we conclude that the action of the trial court in dismissing Blackard from the jury panel was not reversible error.\n2. On the other hand, if we assume it to be true that appellant\u2019s uncle was married to a sister of Black-ard\u2019s father and that this relationship was made known to the trial court during the recess hour, still we think no reversible error would be shown. We must assume that the trial court acted in good faith and in the interest of justice, even though he might have been mistaken in thinking Blackard and the appellant were related within the fourth degree as defined and prohibited by statute. Likewise then, we must assume that appellant and Blackard were also mistaken as to the law or facts, because no effort was made, at that time, according to the record, to enlighten the court. In any event, it is conceded that some family relationship existed between appellant and the juror which was known by the trial court, and the situation called for the exercise of judgment and discretion by the court either as to the law or the facts. We cannot say the court abused its discretion. In Montaque v. State, 219 Ark. 385, 242 S. W. 2d 697, the court approved this statement: \u201cThe question of the impartiality of the jury, as guaranteed by' the Constitution, Art. 2 \u00a7 10, is a judicial question of fact within the sound discretion of the trial court.\u201d\nTwo. When Blackard was discharged he was replaced by a juror from the special panel, referred to above, and this is assigned as reversible \u25a0 error. We do not agree. The new juror was accepted by both sides, and there is no showing whatsoever that he was in any way disqualified. Moreover, the record shows that appellant had left at the time one peremptory challenge which he had not exercised. This being true appellant is in no position to complain. See: Washington v. State, 213 Ark. 218, 210 S. W. 2d 307. We have also often held that a litigant has no special right to any particular juror. See: Green v. State, 223 Ark. 761, 270 S. W. 2d 895.\nWe have examined all other assignments contained in appellant\u2019s motion for a.nbw trial, but find no reversible error.\nAffirmed.\nRobiNSON, J., concurs.", "type": "majority", "author": "Paul Ward, Associate Justice." } ], "attorneys": [ "D. B. Bartlett, Bob Bailey, Jr., and Richard Mob-ley, for appellant.", "Bruce Bennett, Atty. General; Ben J. Harrison, Asst. Atty. General, for appellee." ], "corrections": "", "head_matter": "McDaniel v. State.\n4902\n313 S. W. 2d 77\nOpinion delivered April 28, 1958.\n[Rehearing denied June 2, 1958]\nD. B. Bartlett, Bob Bailey, Jr., and Richard Mob-ley, for appellant.\nBruce Bennett, Atty. General; Ben J. Harrison, Asst. Atty. General, for appellee." }, "file_name": "1122-01", "first_page_order": 1148, "last_page_order": 1153 }