{ "id": 8724683, "name": "Forehand v. State", "name_abbreviation": "Forehand v. State", "decision_date": "1889-05", "docket_number": "", "first_page": "553", "last_page": "559", "citations": [ { "type": "official", "cite": "51 Ark. 553" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "105 Ind., 269", "category": "reporters:state", "reporter": "Ind.", "opinion_index": -1 }, { "cite": "30 Ark., 328", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1881110 ], "opinion_index": -1, "case_paths": [ "/ark/30/0328-01" ] }, { "cite": "53 Me., 535", "category": "reporters:state", "reporter": "Me.", "opinion_index": -1 }, { "cite": "44 N. H., 385", "category": "reporters:state", "reporter": "N.H.", "opinion_index": -1 }, { "cite": "49 Ga., 105", "category": "reporters:state", "reporter": "Ga.", "opinion_index": -1 }, { "cite": "29 Ark., 253", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "40 Ark., 454", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1897105 ], "opinion_index": -1, "case_paths": [ "/ark/40/0454-01" ] }, { "cite": "68 Mo., 202", "category": "reporters:state", "reporter": "Mo.", "case_ids": [ 455131 ], "opinion_index": -1, "case_paths": [ "/mo/68/0202-01" ] }, { "cite": "30 N. W. Rep., 681", "category": "reporters:state_regional", "reporter": "N.W.", "opinion_index": -1 }, { "cite": "87 Ill., 553", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "64 Ga., 453", "category": "reporters:state", "reporter": "Ga.", "case_ids": [ 55339 ], "opinion_index": -1, "case_paths": [ "/ga/64/0453-01" ] }, { "cite": "7 S. E. Rep., 611", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": -1 }, { "cite": "20 Ark., 225", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 } ], "analysis": { "cardinality": 678, "char_count": 11540, "ocr_confidence": 0.699, "pagerank": { "raw": 3.3793469163887786e-07, "percentile": 0.8762935599720293 }, "sha256": "9015d89f309b2dd03da2649183bd2d116a655491061f8f131990de82c76c8d97", "simhash": "1:122b0893f67ab2d9", "word_count": 2072 }, "last_updated": "2023-07-14T20:44:57.887856+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Forehand v. State." ], "opinions": [ { "text": "Per Curiam.\nIf the defendant\u2019s statement of what took place at the branch is true, then the killing was in self-defence after the \u2022defendant had really and in good faith abandoned the pursuit \u25a0of his victim. The jury\u2019s misconduct in taking the de\u2022ceased\u2019s pistol and cartridges to the jury room and there experimenting with them apparently for the purpose of testing the truth of the defendant\u2019s statement, was prejudicial to him. It was evidence taken by the jury out of court in the defendant\u2019s absence which is prohibited by -the statute and contrary to the idea o\u00ed fair and orderly proceedings. The facts are proved by the bailiff who had the jury in charge. For the error in that behalf the judgment must be reversed.\nThe testimony of D. D. Wortham, W. H. West and Mrs. J. T. Simpson and that of Jas. Fry, in so far as it related to the statements made by the defendant\u2019s wife, had no tendency to prove the issue and should have been excluded from the consideration of the jury.\nThe testimony of R. C. Bowden could become competent \u2022only to rebut some theory developed by the evidence for the \u2022defence: as, that the killing was done in a sudden heat of passion brought about by information of the wrong the deceased had done him.\nThere is serious question as to the sufficiency of the 8th instruction to put the law of self-defence fully before the jury and give proper qualification to the 6th instruction.\nThere was no error in the refusal of the court to give the :seven instructions asked by the defendant.\nReverse the judgment and remand the cause for a new trial.", "type": "majority", "author": "Per Curiam." } ], "attorneys": [ "E. B.. Henry and J. G. Wallace for appellant,", "W. E. Atkinson,.Attorney General, for appellee." ], "corrections": "", "head_matter": "Forehand v. State.\nNew TRIAR: For misconduct of jury.\nOn a trial for murder, the defendant having testified that the deceased made such an attempt to shoot him with a pistol as would have justified the killing, the jury after retiring obtained the pistol and cartridges used by the deceased and experimented with them, apparently for the purpose of testing the truth of the defendant\u2019s statement. Held: That this was talcing evidence out of court and in the defendant\u2019s absence, and was such misconduct on the part of the jury as entitled him to a new trial.\nAPPEAL from Pope Circuit Court.\nG. S. Cunningham, Judge.\nThe appellant was indicted for murdering W. C. Marberry by shooting him with a gun and was convicted of 'murder in the second degree.\nAmong other grounds set forth in his motion for a new trial is the following: \"9. That the defendant was prejudiced by the misconduct of the jury after they had retired to consider of their duties, in that they did not rest their deliberations on testimony * * adduced on the trial, but in his absence * * * proceeded with the further investigation of the charge against him by boring out the ammunition of one of the pistol cartridges and snapping the pistol on the cap of the cartridge.\u201d * * * This ground of the defendant\u2019s motion was supported by the affidavit of James R. Oates, in which it is stated: 1 \u2018That the jury after they had retired to consider of their verdict, requested that the pistol of deceased which the evidence identified as \u2018his and which was\u2019 found lying at his left side when his body was discovered, together with the cartridges it contained at the time, be sent them;\u201d that affiant \u201cwas bailiff of the'jury and made their request known to the court,\u201d and also to the attorneys both for the State and the defendant; that pursuant to the request of the jury he delivered to them the pistol and cartridges referred to; that when the pistol and cartridges were returned to him by the jury the lead had \"been bored out of one of the cartridges and the powder taken out and the cap of the cartridge so bored, had the appearance of having been snapped on;\u201d that this was done after the articles were delivered to the jury; that one of the jurors, naming him, stated to affiant \"that after said pistol and cartridges were delivered to them, they bored the lead and ammunition out of one of the cartridges and put such cartridge * * * * into the pistol and snapped it;\u201d and that the cap exploded.\nOn the trial there was evidence to show that an improper-intimacy had existed between the defendanf\u2019s wife and the deceased for about two years next before the latter\u2019s death. The defendant testified that an altercation had occurred between him and the deceased a few months before the killing and that subsequently he had several times seen the deceased in the woods near his (defendant\u2019s) house with a gun; that on one of these occasions the deceased had presented a double-barreled shot gun at him and compelled him to throw up his hands; that on Friday, the 22d of March, his wife told him the deceased had visited their house on the day before and presenting his gun had compelled her to go to the edge of the woods and talk to him and that in that conversation the deceased had told her that he would kill the defendant if the latter did not leave before the grand jury met and that he would, in a certain event; return on the Monday following \u2014 March 25th; that early Monday morning he (the defendant) took his shot gun and concealed himself in some-fallen tree tops about sixty yards from his house and in front of his gate so, as he expressed it, that he \"would have the advantage of the defendant if he did come; \u2019 \u2019 that about noon the deceased approached stealthily to within 35 or 40 yards of the defendant\u2019s place of concealment, when the latter ordered him to throw up his hands; that the deceased did not obey the order, but drew a pistol and the defendant shot at him; that deceased wheeled to run and the defendant shot at him a second time; that deceased ran off out of sight and the-defendant not knowing whether he had-wounded him, put his-dog on his track and presently heard the dog baying and the-deceased calling him; that having reloaded his gun, he went cautiously out to where he had heard the deceased calling him; that he found the deceased at a \u201cbranch,\u201d and as he-approached him the deceased said: \u201cCharley, I love you, come to me; I don\u2019t blame you for this; I thought I would get you first, but you have got me;\u201d that after further con\u2014 versation in which the deceased spoke of the wound he had. received, he requested the defendant to procure a wagon and. take him home and also to give him some water; that after-dipping water from the branch in his hands and giving it to-the deceased, he \u201cstarted to Sam Battenfield\u2019s to get a wagon to take deceased home and as he stepped across the-branch and had gone some little distance\u2019 say six or eight steps, he heard a pistol cock and turning saw deceased with a pistol in his left hand, coming up or raising it on defendant;\u201d that deceased was \u201craised up or sitting up a little,\u201d- and that he, defendant, shot at him again and then ran off without looking to see whether the third shot had taken effect.\nThe evidence also showed: that the defendant surrendered himself to a deputy sheriff on the day the killing was done- and stated to that officer and several other witnesses for the-State the circumstances of the killing substantially as stated above; that the body of Marberry was found .near a small! branch; that a five-shooting pistol was found on the ground'. about six or eight inches from the body; that it was cocked and the muzzle was pointing from the body, but a little inclined towards the feet; that the hammer of the pistol seemed to.be caught or hung and one of the cartridges had been ' \u2018snapped on; \u201d that the body when found did not appear to have been disturbed and showed a number of wounds in the chest, head and other parts of the body.\nThe testimony of D, D. Wortham, alluded to in the opinion of the court, was as to certain conduct of the defendant\u2019s -wife indicating an improper intimacy with the deceased; and that of Mrs. Simpson related to Mrs. Forehand\u2019s reputation for unchastity because of her relations with the deceased. The testimony of W. H. West detailed obscene remarks made by the defendant in his wife\u2019s presence or indecent allusions made to her in her absence.\nJames Fry was permitted to testify that while he was \u25a0guarding the defendant pending the coroner\u2019s inquest, the -defendant's wife stated to him in the presence of the defendant, that she knew the deceased would go out to defendant\u2019s house as soon as he learned that defendant had gone to Fort .'Smith; that she told her husband when he shot the deceased that he had missed him with both barrels and that defendant replied \u201cno, it was the fault of the d \u2014 d gun,\u2019\u2019 and that she knew the defendant had not gone to Fort Smith, but was in the tree top.\nR. C. Bowden testified that over a year before the killing -of deceased, he and others were engaged in a conversation concerning the case of a man who had then recently killed another for criminal intimacy with his wife, and that in the course of the conversation the defendant remarked that he \"\u201cdid not care who drank at his spring so they left the dipper.\u201d The witness also stated that he had heard the defendant make the same remark more than once and that it was generally known that he made such remarks.\nE. B.. Henry and J. G. Wallace for appellant,\nargue the case orally and submit that:\nIt was error to admit the evidence of Simpson, Bowden, West, Fry and Wortham. The declarations of defendant were not part of the res gestee. Wood\u2019s Pr. Ev., p. 413, sec. 146; Whart. Cr. Ev. (9th ed.), sec. 484, note 6; 1 Gr. Ev. (nth ed,), secs. 52 and 448. For the rejection of Wortham\u2019s testimony, see Whart. Cr. Ev. (9th ed.), secs. 29 and 30, note 1; Thomps. Trials, vol. x, p. 350.\nThe declarations of defendant\u2019s wife were inadmissible. Wh. Cr. Ev. (9th ed.), sec. 699, notes 2 and 3; sec. 700, notes; 1 Gr. Ev. (nth ed.), sec. m; 20 Ark., 225; 45 Id., 166; 43 Id., 99.\nDefendant had the right to prevent and defend his premises against force or fraud or to prevent the act of adultery with his wife. 4 S. W. Rep., Estep v. Commonwealth; 7 S. E. Rep., 611; 64 Ga., 453.\nThe 8th instruction is cumbersome, misleading and not the law. Btimley v. State, 21 Tex. Ct. Ap.; 20 lb., Bell v. State; 43 lb., 242; Whart. Horn.-\nThere was evidence to support the seven instructions asked by defendant. 87 Ill., 553 \u2014 4-\nThe cause should be reversed for the misconduct of the jury, and it is not necessary for defendant to show prejudice. 2 Thomp. Trials, sec. 2611, page 1974, note 3; Thomp. & Mer. on Juries, secs. 438-9; Hayne New Tr. & Ap., sec. 386; 30 N. W. Rep., 681; 68 Mo., 202; Mansf. Dig., sec. 2297.\nW. E. Atkinson,.Attorney General, for appellee.\nArgued orally.\nThe appellant sought and brought on the difficulty and he \u2022cannot justify under the circumstances. 40 Ark., 454. The facts make a clear case of murder. Whart. Cr. Law, sec. .459 and note.\nThe 6th instruction not objectionable. Adultery contemplated or consummated does not justify or excuse killing.\nThe 8th instruction should be construed with sec. 1553, Mansf. Dig., which was read to the jury, and the 6th in.\u25a0struction.\nThe privilege of confidential communications between husband and wife does not apply to close the mouth of a third party who heard them. Wh. Cr. Ev,, sec. 398.\nIt is not every irregularity or misconduct of a jury that will entitle a defendant to a new trial. There must be prejudice to his rights. Palmer v. State, 29 Ark., 253-4-5, 269. Can the defendant raise this objection after permitting it to occur without objection? Hayne New Tr. & Ap., sec. .27; see Id. 2; 49 Ga., 105 ; 39 lb., 661; 44 N. H., 385 ; 53 Me., 535 ; 30 Ark., 328, has been modified by 105 Ind., 269." }, "file_name": "0553-01", "first_page_order": 605, "last_page_order": 611 }