(after stating the facts). The motion for a new trial sets out twenty grounds, but not all of these are seriously relied upon in argument here for reversal, and we will discuss such only as we understand counsel to urge here as grounds for reversal.
Discretion of continuances,
The application for continuance upon the ground that, at the same term of the court at which appellant was put upon his trial for the murder of Jesse Hibdon, he had been convicted of the murder of Charles Hibdon, which was calculated to prejudice him on his trial at the same term of the court for the murder of Jesse Hibdon, was denied by the court. Applications for continuance are so largely in the sound discretion of the circuit court that this court will not control it, unless there has been a flagrant abuse of the court’s discretion that amounts to a denial of justice. Thompson v. State, 26 Ark. 323; Price v. State, 57 Ark. 167. We are unable to say that there was such abuse of discretion in refusing the continuance in this case as manifestly operates as a denial of justice, and for which the judgment should be reversed. Loftin v. State, 41 Ark. 153.
sufficiency fo^nuírder?111
The court overruled the appellant’s demurrer to the indictment, and this is urged as error. We have examined carefully the indictment, and think it sufficiently charges the crime of murder in the first degree, though not in the most artistic and approved form. It fully advises the defendant of the charge he is called upon to answer, and fulfills, in substance, the requirements of our statute in reference to the sufficiency of indictments. Section 2075 Sandels & Hill’s Digest provides : “ The indictment is sufficient if it can be understood therefrom: First. That it was found by a grand jury of a county impaneled in a court having authority to receive it, though the name of the court is not accurately stated. Second, that the offense was committed within the jurisdiction of the court, and at some time prior to the finding of the indictment. Third, that the act or omission charged as the offense is stated with such a degree of certainty as to enable the court to pronounce judgment on conviction according to the right of the case.”
Section 2076 provides: “No indictment is insufficient, nor can the trial, judgment, or other proceeding thereon be affected by any defect which does not tend to the prejudice of the substantial rights of the defendant on the merits.”
Section 2090 provides : “ The indictment must contain * * * * . second, a statement of the acts constituting the offense, in ordinary and concise language, and in such a manner as to enable a person of common understanding to know what is intended.”
Section 2074 of Sandels & Hill’s Digest provides that: “The indictment must be direct and certain as regards, first, the party charged; second, the offense charged ; third, the county in which the offense was committed ; fourth, the particular circumstances of the offense charged, where they are necessary to constitute a complete offense.”
The indictment is substantially in the form prescribed by the statute. Section 2091, Sandels & Hill’s Digest. It is substantially the very same as the indictment in the case of Dixon v. State, 29 Ark. 165. There was no error in overruling the demurrer to the indictment, and the motion in arrest of judgment, they being in substance the same.
prejudice fn/a Judged
The court overruled the defendant’s application for a special judge to try the cause, and this is assigned as error, Section 20 of article 7 of the constitution provides that: “No judge or justice shall preside in the trial of any cause in the event of which he may be interested, or where either of the parties shall be connected with him by consanguinity or affinity, within such degree as may be prescribed by law ; or in which he may have been of counsel or have presided in any inferior court.” None of the matters mentioned in this provision as disqualifying a judge to preside in a cause are alleged in the application of appellant, which was based upon the ground, first, that the regular judge was a material witness in the cause, to which the attorney for the state responded that the judge knew no material facts in the case, and that he had no intention to use him as a wdtness. The judge himself in passing upon the motion stated that he knew no material facts in the case. He did not testify in the case. The second ground of the motion was that the judge was so prejudiced against the defendant that said defendant could not obtain a fair and impartial trial before said judge. In passing upon the last ground of the motion, the judge stated that he had a fixed opinion as to the guilt or innocence of the defendant, but that it was not true that he was prejudiced against him. There is no provision of our constitution or statutes that disqualifies a judge for prejudice. If having formed an opinion as to the guilt or innocence of a defendant on'trial in a criminal case was a disqualification of a judge presiding at the trial, it would often be a difficult matter to find a judge that would not be disqualified.
In the case of the State v. Flynn, 31 Ark. 35, 39, Judge English, delivering the opinion of the court, said: “Where a circuit judge labors under none of the causes of disqualification prescribed by the constitution, he has the right to preside, and is bound by his official oath, and by honor, to decide impartially, regardless of his social relation to parties,” etc. In that case an affidavit was filed stating that “the defendant, Frank Flynn, who is indicted for murder, states on oath that he verily believes that his honor, J. M. Smith, judge of this court, will not give the said defendant a fair and impartial trial.” Upon this the venue was changed from Garland to Pulaski county. In the Pulaski circuit court the prosecuting attorney moved that the cause be stricken from the docket for want of jurisdiction, and remanded to the Garland circuit court, which motion was overruled, and the state appealed. The supreme court reversed the judgment, with directions that the cause be remanded to the Garland circuit court, and there proceed according to law.
It is the province of the jury solely to determine the facts of the case, and of the judge to determine questions of law that arise in the case. If he err, his judgment may be reversed on appeal. It is not to be supposed that the judge will exhibit partisan feeling or prejudice in the trial of a cause, which would be indecorous and reprehensible, and bring into contempt the administration of justice. McCauley v. Weller, 12 Cal. 523. The court did not err in overruling the application for a special judge.
Sufficiency of plea of former conviction.
It is insisted upon as error that the court sustained a demurrer to the appellant’s plea of former conviction. The plea is as follows :
State of Arkansas
v.
Jesse H. Jones.
‘ ‘ In the Franklin Circuit Court
For Ozark District,
February Term, 1895.
Comes the defendant, Jesse H. Jones, in person and by his counsel, and says that he was on the 2d day of March, 1895, in this court convicted of this identical offense by a jury previously empaneled to try him upon the same, and that the verdict in that case still stands undisturbed against defendant. See copy of indictment and record to this date in No. 57 hereto attached, and marked exhibit ‘A.’ And defendant says that the testimony in the case in which he, defendant, has as aforesaid been convicted is precisely the same throughout as in this case, and defendant says that the same facts, circumstances and matters urged against the defendant in the former trial will in every respect be the same facts, circumstances and matters that will be urged against him, the defendant, upon this trial.
Whereupon defendant in person and by his counsel alleges that for the above and foregoing reasons this prosecution ought to abate and cease, and ought not to be further urged against this defendant.
Robt. J. White,
E. Hiner,
Evans & Cockran,
Miees & Miees.”
This plea fails to state that by the same act and volition both Charles and Jesse Hibdon were killed, and the exhibit to the plea, i. c., the indictment against appellant for the murder of Charles Hibdon, and upon which appellant had been convicted of murder in the first degree, before he was tried in this case for the murder of Jesse Hibdon, at or about the same time he is charged to have murdered Charles Hibdon, shows that the parties charged to have been murdered were not the same in both cases.
In the case of People v. Majors, 65 Cal. 138 to 150, it is held, in an opinion reviewing the cases upon the question delivered by Morrison, C. J., that the murder of two persons by the same act constitutes two offenses for each of which a separate prosecution will lie, and a conviction or acquittal in one case does not bar a prosecution in the other. In that opinion the court quoted the following passage from the opinion in Clem v. State, 42 Ind. 420, to-wit: “It does not follow because one of the indictments was for the murder of Nancy Jane Young and the other for the murder of Jacob Young, that the crime is not the same.” And the court admitted that this was an authority in favor of defendant, if the death of the two persons murdered resulted from one and the same act.
In the case of the State v. Elder, 65 Ind. 282, the rule on this question is stated as follows: “When the same facts constitute two or more offenses, wherein the lessor offense is not necessarily included in the greater, and when the facts necessary to convict in the second prosecution would not necessarily have convicted in the first, then the first prosecution will not be a bar to the second, although the offenses were both committed at the same time and by the same act.”
In the State v. Hattabaugh, 66 Ind., 223, the court said: “The usual test by which to determine whether the former conviction or acquittal was for the same offense, as that charged in the second prosecution, and therefore whether the former is a bar to the latter, is to inquire, whether the evidence necessary to sustain the latter would have justified a conviction in the former case.” The California court, in People v. Majors, say: “Testing the case of Clem v. State, supra, by the rule laid down in the latter cases referred to (65 and 66 Ind.), it would be difficult to sustain the authority of the former.”
Jones, the appellant, on an indictment for the murder of Jesse Hibdon, could not be convicted for the murder of Charles Hibdon, nor vice versa. In the case of Teat v. State, 53 Miss. 439, the court said : “ A putting in'jeopardy for one act is no bar to a prosecution for a separate and distinct act, merely because they are so closely connected in point of time, that it is impossible to separate the evidence relating to them on the trial for one of them first had.” And the court expressed the belief that no well considered case could be found, “where a putting in jeopardy for one act was held to bar a prosecution for another separate and distinct one, because they were so closely connected in point of time, that it was impossible to separate the evidence relating to them.”
Many other cases are cited to support the judgment of the court on this point. It is said by some authorities, that where the same act and volition results in the death of two persons, there is but one offense. We do not understand that the plea in this case states that Charles and Jesse Hibdon were killed by one and the same act. The fact that the act of killing Jesse Hibdon, and the act of killing Chas. Hibdon were so closely connected in point of • time, that it was impossible to separate the evidence relating to each of them, would not necessarily make the killing of the two one act, or one offense.
Section 2148 of Sandels & Hill’s Digest provides, that: “Neither a joinder in demurrer nor a reply to the plea of former acquittal or conviction shall be necessary, but the demurrer shall be heard and decided, and the plea shall be considered as controverted by denial, and by any matter of avoidance, that may be shown in evidence.” It does not appear that any evidence was heard in determining the demurrer to the plea, and we presume that only the plea and the exhibit thereto (the indictment against Charles Hibdon) were considered by the court.
We think there was no error in sustaining the demurrer to the plea.
Discretion of court to hold night, sessions.
The court on two different occasions refused the request of the appellant not to hold a night session of court for the reason that Oscar D. Miles, his leading counsel, was sick and unable to attend at such night session. This is assigned as error. It appears from the transcript that at these night sessions the defend-, ant was ably represented by Mr. Hiner, Mr. White, Jas.; Cockran and A. F. Miles — all competent counsel. It therefore does not appear that the appellant was prejudiced by the refusal of his request. Such motions are. addressed largely to the sound discretion of the court, and, unless there is abuse of that discretion, this court will not interfere. Edmonds v. State, 34 Ark. 725; State v. Dusenberry, 112 Mo. 289.
instruction sume facts,
It is assigned as error that the court gave to the-jury instructions numbered 1, 2, 3, 4, 5, 6, 7, 8 and 9, and that 4 and 9 particularly are erroneous. . For. error adjudged to exist in the latter part of instruction 4,. as given on the trial of appellant for the murder of Charles Hibdon, the judgment in that case was reversed. Jones v. State, 59 Ark. 417. The instruction as given in this case, however, is not obnoxious to the error for .which it was held bad in the other case. In the case in 59 Ark. it read thus: “The false, improbable and contradictory statements, of the accused, if made, in explaining suspicious circumstances against him, are evidence to be considered by the jury,” etc. As given in this case it reads : “If you find from the evidence that the defendant has made any false, improbable and contradictory statements explaining suspicious circumstances against him, then this may be considered by you,” etc. The first is obnoxious to the objection that it assumes facts, the other does not, but leaves it to the. jury to determine upon the evidence whether they exist or not. It seems that there is a material difference, between them. We find no reversible error in this instruction as given in this case.
instruction as to accused’s £rovediHtyap'
Instruction numbered nine is as follows: “The court instructs the jury that, under the law, the defendant, Jesse Jones, has the right to testify in hisJ own behalf; blit his credibility, and the weight to be given to his testimony, are matters exclusively for the jury. In weighing the testimony of the defendant in this case, you have a right to take into consideration his manner of testifying, the reasonableness or unreasonableness of his account of transactions, and his interest in the result of your verdict, as affecting his credibility. You are not required to receive blindly the testimony of the accused as true; but you are to consider whether it is true, and made in good faith, or only for the purpose of avoiding conviction.”
Number 10 is as follows : “The court tells the jury that nowhere in these instructions does the court mean that you are to disregard the testimony given by any witness in this case. That is a matter solely with the jury, and it is not within the province of the court to tell the jury what weight you should give to the testimony of any witness.”
The ninth instruction given in this case is an exact copy of the one given in the case of Vaughan v. State, 58 Ark. 362, which was approved by the court.
Following Vaughan v. State, supra, and the many cases cited to support it, we find no error in instruction numbered nine. We find no reversible error in the instructions, taken together, as given by the court.
Instructions as to circumstantial evidence.
The instruction asked by the defendant and refused by the court is as follows : “If the jury find that this is a case dependant entirely upon circumstantial testimony, then the coúrt charges you that, before the defendant can be convicted, you must find that the circumstances proved establish the guilt of the defendant to the exclusion of every other reasonable hypothesis ; and if you do not so find, it is your duty to acquit the defendant.” It appears from instruction numbered three, given by the court, that the court said to the jury: “ This is a case of circumstantial evidence, and if it satisfies the minds of the jury beyond a reasonable doubt, they should convict, the same as they would upon direct evidence, which satisfies them beyond a reasonable doubt.” The instruction numbered six, given by the court, is as follows: “The burden is upon the state to prove to the satisfaction of the jury beyond a reasonable doubt every material allegation in the indictment, and unless that has been done, the jury should find the defendant not guilty.” In the case of Green v. State, 38 Ark. 316, the appellant asked the following instruction, which was refused, to-wit: “That incases of circumstantial evidence, before the jury can convict, the guilt of the defendant should be made out, not only beyond a reasonable doubt, but to the exclusion of every other reasonable hypothesis.” In delivering the opinion of the court, Chief Justice English said: “It was putting it very strong to require the state not only to prove the guilt of the accused beyond a reasonable doubt, but to go further and prove it to the exclusion of every other reasonable hypothesis. Either would be sufficient.” There was no error in refusing the instruction asked by the appellant.
Finding no substantial error in the other matters assigned for reversal, we pass them without comment.
Lastly, it is objected that the verdict of the jury is not supported by sufficient evidence. It is possible that a defendant might be the victim of such a remarkable concatenation of circumstances, as exist and were proved in this case, and be innocent, but it is not at all probable. The evidence was amply sufficient to warrant the verdict of guilty of murder in the first degree, as found by the jury.
The judgment is affirmed.