The appellant was indicted as. accessory before the fact to murder in the first degree. He was convicted and sentenced to be hung. His motion for a new trial assigns numerous g-rounds for there versal of the judgment.
1. One of the grounds assigned for new trial and argued here is that the judgment should be reversed because of improper influence brought to bear upon the jury to obtain a verdict. It is said that the evidence of' this influence is reached from two distinct sources : first, that it is found in a certificate of the executive and ministerial officers of the court, which is embodied in the bill of exceptions, showing that when the final arg-ument of the State’s attorney in prosecuting the case against the appellant was concluded, it was followed by “loud, general and continuous applause for some-moments by the citizens of Washington and Madison counties,” who filled the court house to its full capacity at the trial; and second, that it is found in the affidavit of J. W. Walker, which was considered by the court upon the application for a new trial. This affidavit is to the effect that the cause was submitted to the jury on Saturday, and that they brought in no verdict on that day; that on Sunday they were given the liberty of the court room, the doors and windows of which stood open ; that some of the jurors left the court room and remained some upon the north and some upon the south porch of the court house; that divers citizens of Washington and Madison counties were in the court house yard, within fifteen or eighteen feet of the jurors, excitedly discussing the merits of the case against the appellant; that the affiant, who was one of the attorneys for the appellant, sought the trial judge, and reported these facts to him, but that thereafter “the crowd remained within fifteen or eighteen feet of the jurors who were trying- the case, excitedly discussing the case and insisting upon the guilt of the defendant; Vaughan ; and that this was kept up for hours after the affiant called the attention of the court to the facts.”
Of the certificate of the officers, it is sufficient to say that it is the province of the trial judge, and not of the executive and ministerial officers of the court, to certify to this court the facts in reference to matters which occur in court in the presence of the judge on the trial of a cause. It is only where the judg-e refuses to certify in the bill of exceptions the facts complained of that a party can resort to the statutory method of a certificate of bystanders, supported by affidavits. Fordyce v. Jackson, 56 Ark. 594.
1. Affidavits of
The judge did not refuse to certify any fact or exception in this case. The certificate of bystanders is therefore extra-judicial, and cannot be considered by us.
The affidavit of Walker directs attention to matters which did not occur in court in the course of the trial. The judge himself could obtain information about them only through the testimony of others. Affidavits are admissible for that purpose, and, when considered by the trial court and brought upon the record by bill of exceptions, questions presented by them are brought before us on appeal. That is familiar practice.
% Exposure of jury to improper inllu-
If the jury were really subjected for hours to the influence of an excited crowd of men who discussed the merits of the controversy and demanded the guilt of the prisoner in their hearing, the integrity and purity of the trial would of course be impeached, and a new trial, freed from all bias and undue influence, would be the least reparation that the law could make in behalf of justice.
The onty doubt that arises on this branch of the cause is whether there is not some mistake, omission or defect in the record ; for we know that the judge who tried the cause is careful, conscientious and capable. Facts and circumstances which do not appear of record, and which made the matter clear to his mind, were perhaps known to him; but there is no intimation of them in the record, and we can try the cause only upon the record as it exists. By the well established practice, acted upon in this court in many cases, the unimpeached affidavit made a frima facie case that some or all the jurors had been exposed to improper influence, and it cast upon the prosecution the burden of showing that the jury had not been so exposed, or that the exposure was of a character that could not or did not influence them. The officer in charge of the jury, persons about the court house on the day in question, and the jurors themselves were all competent witnesses to disprove the statements of the affidavit if they were inaccurate or untrue. When the means of contradiction were so easily to be obtained, we must infer that the statements of the affidavit are true, else the proof to the contrary would be forthcoming. To presume that the judge knew other facts than those set out in the record would be contrary to the authorities and the practice in such cases, and would establish a precedent that would lead to dangerous results.
The judgment convicting Maclin of murder in the first degree was reversed upon the unimpeached and uncontradicted affidavit of one person to the effect that one of the jurors had remained for some time in the hearing of comments on the case made by bystanders. Maclin v. State, 44 Ark. 115. Judge Smith, in delivering the opinion, said: “Here no effort was made to deny, exculpate or explain the misconduct of this juror, or to show that it was not hurtful to the appellant, although it was in the power of the State to produce him and the officer under whose eye he was.” He goes on to say that consequently it must be taken as an uncontroverted fact that the juror was subjected to improper influence, and that that fact vitiated the verdict. Other cases of like import could be cited, but the question is at rest in this State. The practice rests upon no technical ground, for it is of the first importance that no verdict should stand in the face of facts calculated to throw doubt and suspicion upon the fairness of the trial. As was said by Judge Fairchild in Love v. State, 22 Ark. 336: “The safeguard of the law must be well protected, that the just punishment of the guilty may not be a precedent or excuse for the illegal conviction of the innocent.” A new trial ought, therefore, to have been granted.
It is important to consider further such questions only as may arise on another trial.
2. The special term of the Madison circuit court was legally held. Section 1476 of Mansfield’s Digest provides: “Special adjourned sessions of any court may be held in continuation of the regular term, upon its being so ordered by the court or judg'e in term time, and entered by the clerk on the record of the court; ’ ’ and section 1481 provides : “No such adjourned session or special term shall interfere with any other court to be held by the same judg'e.”
3. Adjourned session, oí
In construing these sections it has been decided that the circuit court may provide for a special adjourned term to be held after the time for holding- the next regular term in another county of the circuit; and that an adjourning the court to a given day is a sufficient entry upon the record of an order for an adjourned session. Galbreath v. Mitchell, 32 Ark. 278; Davies v. State, 39 id. 448.
As to whether the special session will in any instance interfere with the business of a regular term of the court in another county, is a question which must be left to the sound discretion of the trial judg'e. There is certainly no abuse of it shown in this case.
The change of venue was regularly taken to the Washington circuit court, and that court has jurisdiction of the cause.
4. confespai^ot sible against accessory.
3. The witness, Berry, was permitted to make the statement: “Hamilton showed us where he . got over the fence and where he stood at the time of the shooting.” Hamilton was charged as principal and the appellant as accessory before the fact. The appellant could be tried without regard to Hamilton’s conviction. Mansf. Dig. sec. 1511. But to prove the appellant’s guilt, it is necessary to prove Hamilton’s. In general, any evidence tending to prove the guilt of the principal is admissible to prove that fact on the trial of one charged as accessory. 2 Bish. Cr. Pr. sec. 13.
Confessions of the principal seem to be an exception to the rule, at least where the principal can be called as a witness to the fact. 2 Bish. Cr. Pr. sec. 13; 1 Russell, Crimes, 43; 1 Roscoes’ Cr. Ev. 53; Regina v. Hansill, 3 Cox, Cr. Cas. 597.
Hamilton was called as- a witness in this case, and testified fully to his own guilt. The statement made to the witness Berry, set out above, was an indirect confession. It was made after the event, and not at a time so near it as to be regarded as of the res gestae. It .was, according to the authorities, only hearsay as against Vaughan, the accessory. In Casey v. State, 37 Ark. 67, the principal in the crime of murder, who testified on the trial of one charged as accessory, was permitted to state on his examination in chief that he had previously made a confession of his guilt and at the same time accused the defendant. No reason is assigned in the opinion for the admission of the evidence of either of the previous statements made by the witness. And it seems that the court placed the admission of both on the same ground, whatever that may be. The decision cannot, therefore, be regarded as authority to the point that the previous confessions of the principal are competent against the accessory. If the statement made to Berry led him or others to the discovery of tracks which identified Hamilton as the person who committed the crime, or to the discovery of any independent fact having that tendency, it was competent evidence to show that such discovery was made conformably to the information given by Hamilton. It is not clear from the testimony of Berry whether that was or was not the inducement which led to the discovery of the tracks which were identified as Hamilton’s. It will be easy enough to preserve the rule on a new trial.
4. Hamilton was a competent witness. The proof relied upon to exclude his testimony tends only to show that he waá induced to testify by an offer of leniency of punishment. The fact could affect his credibility only. 1 Roscoe’s Cr. Ev. 132; Rex v. Tong, Kelyng’s Rep. 18; Black v. State, 59 Wis. 471.
5. Confession not vitiated by promise of leniency.
5. The appellant has failed to point out any error' in the charge of the court.
The criticism that it assumes the appellant’s guilt, and is misleading as to the tests to be applied to Hamilton’s testimony, is not well founded when other parts of the charge are looked to, and it is obvious that the appellant had only to direct the trial court’s attention to these matters to have even the semblance of error removed.
6. insiruclion touching circumstantial
6. The only other matter worthy of mention is the . ^ court s reiusal to give a somewhat extended charge to the jury based on the hypothesis that the cause went to the jury on circumstantial evidence only. The theory is that there was no direct testimony, aside from Hamilton’s, to connect the appellant with the commission of the offense ; that Hamilton was impeached ; that it was the jury’s province to disregard his testimony, and that, laying it aside, the case rested purely upon circumstantial evidence. But the theory of the prosecution was based upon Hamilton’s testimony. There is nothing to indicate that, without it, a conviction was asked. It was proper, therefore, for the court to refuse to confound the jury by submitting a charge upon an issue they were not to try. If the theory of the prosecution had been that the appellant’s guilt was shown by circumstantial evidence wholly independent of Hamilton’s testimony, and Hamilton had been impeached, a proper charge upon circumstantial evidence would have been appropriate. But whether a refusal to give it would 'be reversible error, even in that case, Would depend upon the question whether the charge upon reasonable doubt and otherwise was fairly adequate to meet the contingencies of the evidence.
Reverse the judgment and remand the cause for a new trial.