251 S.W.2d 490 Page 1

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Supreme Court of Arkansas.

LEWIS et al.

v.

STATE.

No. 4696.

Oct. 6, 1952.

251 S.W.2d 490, 220 Ark. 914

Prosecution for involuntary manslaughter. The Circuit Court, Conway County, Audrey Strait, J., entered judgment

on conviction, and the defendants appealed. The Supreme Court, Minor W. Millwee, A. J., held that if passenger,

with knowledge of driver’s condition, resulting from use of intoxicants, knowingly permitted driver to operate

automobile in reckless and unlawful manner without protest and encouraged the driving of the automobile, the

passenger would be guilty of involuntary manslaughter for death of accident victim which occurred as result of

operation of the automobile, if jury found driver guilty of such charge.

Affirmed.

MILLWEE, Justice.

The defendants, Steve Lewis and Harry H. Wren, were jointly charted with involuntary manslaughter in the killing

of Mrs. Nancy Pounds, 86 years of age. The defendants were tried jointly and convicted and their punishment fixed

by the jury at one year and one day in the penitentiary.

The charges arose out of an automobile collision which occurred shortly after midnight on U. S. Highway 64 about

three miles west of Morrilton, Arkansas. The evidence on behalf of the State shows that defendants who resided at

Atkins, Arkansas were close friends, and that Wren usually drove Lewis’ car. On the night in question they did

considerable driving from place to place in the Lewis automobile. En route from Atkins to Morrilton they purchased

12 cans of beer and did considerable drinking of beer and gin from 7 p. m. until immediately prior to the collision.

After visiting a friend a few miles from Morrilton late in the evening where the drinking was continued, the

defendants were driving west in Lewis’ automobile when it collided headon with a car being driven east by Mrs.

Mabel Law and in which Mrs. Pounds was a passenger. There was evidence that the car occupied by defendants was

weaving from one side of the road to the other shortly before the collision and ran into the car operated by Mrs. Law

on her side of the road after she had turned her car to the right with the right wheels off the pavement in an effort to

avoid the collision. Occupants of both automobiles were seriously injured and Mrs. Pounds died from her injuries

three days later.

Several witnesses testified that defendants had the odor of alcohol on their breaths and a portion of a ‘fifth’ of gin

was found in the car following the collision. The respective positions in which the defendants were found

unconscious after the collision and the nature of the physical damage to the car occupied by them indicated that

driver. Each defendant testified that he was asleep at the time of the collision and that the car was being driven by

the other. Both defendants admitted that they had done considerable drinking but the defendant Lewis denied that he

was drunk.

In urging reversal defendants contend that the trial court erred in (1) giving certain instructions, (2) overruling their

motions to sever, (3) denying the motion of Lewis for a continuance, (4) refusing to disqualify a petit juror for cause,

and (5) allowing only eight peremptory challenges to both defendants. It is also insisted that the evidence is

insufficient to sustain the verdicts.

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thereon represents the crux of the case and has considerable bearing on some of the other questions presented. The

charges against the defendants were brought under Ark.Stats. § 41-2209. [FN1]

FN1. This section reads: ‘If the killing be in the commission of an unlawful act, without malice, and

without the means calculated to produce death, or in the prosecution of a lawful act, done without due

caution and circumspection, it shall be manslaughter. Provided further that when the death of any person

ensues within one (1) year as a proximate result of injury received by the driving of any vehicle in reckless,

willful or wanton disregard of the safety of others, the person so operating such vehicle shall be deemed

guilty of involuntary manslaughter.’

The court gave several instructions stating in effect that if one of the defendants was driving the car in a reckless,

and was aiding, abetting or assisting in the unlawful operation of the car by the co-defendant, then both defendants

could be found guilty of involuntary manslaughter. The jury were further told that if either defendant was under the

influence of intoxicants and incapable of properly operating the car and that the non-driver, with knowledge of the

co-defendant’s condition and incapacity, knowingly permitted him to operate the car in a reckless and unlawful

circumstances, then the non- driver would be guilty of criminal negligence and involuntary manslaughter in the

event that the jury found the driver guilty of such charge.

The court also gave Instruction No. 11 which reads: ‘The mere fact that the jury finds from the evidence beyond a

reasonable doubt, if it does so find, that one of the defendants, either Wren or Lewis was riding as a passenger in the

car involved in the accident with the car in which Mrs. Pounds was a passenger, would not of itself be sufficient to

convict the defendant because he was a passenger therein, but the jury must further find, beyond a reasonable doubt

from the evidence, that one of the defendants was personally driving the motor vehicle in an unlawful, or drunken

and intoxicated condition, or was standing by aiding or abetting in the unlawful driving and operation of the

automobile by the other defendant which caused or brought about the death of Mrs. Pounds.’ Other instructions were

given presenting the defense of each defendant on these issues.

It is conceded that these instructions were based on the law as declared by this court in Fitzhugh v. State, 207 Ark.

117, 179 S.W.2d 173, 175. In that case this court became committed to the rule that an accused may be convicted as

an accessory before the fact to involuntary manslaughter and that under our statute, Ark.Stats. § 41-118, such

accused is deemed a principal offender. In the Fitzhugh case the defendant claimed that he was too drunk to

remember anything about the collision and that another was driving the car at the time. This court said: ‘We think

the jury would have been warranted in finding, from all the facts and circumstances presented, that the truck in

question belonged to appellant, that he was on the front seat at the time of the collision, and if not actually driving,

was sitting beside the person who might have been driving, that appellant was not so drunk but that he knew what

was happening, knew that the truck, a dangerous instrumentality, was being driven on the wrong side of the road, §

In Story v. U. S., 57 App.D.C. 3, 16 F.2d 342, 344, 53 A.L.R. 246, the defendants, as here, were jointly charged

with involuntary manslaughter and the court said: ‘If the owner of a dangerous instrumentality like an automobile

knowingly puts that instrumentality in the immediate control of a careless and reckless driver, sits by his side, and

permits him without protest so recklessly and negligently to operate the car as to cause the death of another, he is as

much responsible as the man at the wheel.’ The court also approved the following statement in Ex parte Liotard, 47

Nev. 169, 217 P. 960, 961, 30 A.L.R. 63: ‘No one would contend that the owner of a car would not be liable for

injuries resulting from his operating it while intoxicated. How, then, can he escape the consequence when he sits by

and permits another, who is intoxicated to operate it? * * * One who is so careless of the rights of others as to use a

dangerous instrumentality while incapacitated by drink, or who permits others to do so, as here shown, invites the

consequences. He must pay the penalty.’ See also, Annotation 99 A.L.R. 771.

fact to manslaughter, some courts holding that there cannot be accessories before the fact to voluntary manslaughter

while there can be such accessories in cases of involuntary manslaughter. 40 C.J.S., Homicide, § 9b. We think the

rule adopted in the Fitzhugh case is supported by reason and the weight of authority. The trial court carefully

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followed our holding in that case in the instructions given here and we find no error in them.

were overruled. It appears from the motion filed by Wren that he alone was initially charged with the offense and

filing of the first information the prosecuting attorney filed a joint information and the record does not disclose what

disposition, if any, was made of the first information. Apparently the state elected to proceed on the joint

information in lieu of the first information filed and this practice has been approved. Cole and Jones v. State, 214

Ark. 387, 216 S.W.2d 402.

Ark.Stats. § 43-1802 provides that when two defendants are jointly indicted for a felony less than a capital offense,

the defendants may be tried jointly or separately in the discretion of the trial court. We have frequently held that the

granting of a severance is within the discretion of the trial judge and his action will not be disturbed in the absence

of a clear abuse of such discretion. In Nolan and Guthrie v. State, 205 Ark. 103, 167 S.W.2d 503, and Bennett and

Holiman v. State, 201 Ark. 237, 144 S.W.2d 476, 131 A.L.R. 908, defendants were jointly charged with arson and

one of them moved for separate trial because the confession of a co-defendant would be introduced at the trial. We

held there was no abuse of the trial court’s discretion in denying severance where the court properly instructed the

jury that the confession of one defendant could not be used against the other.

Defendants earnestly contend that their defenses were inconsistent and that the failure of the court to grant them

separate trials placed the burden on each not only to defend himself against the State, but to prosecute the other.

Cases are cited in which it has been held that where the defenses are so antagonistic as to preclude a defendant from

obtaining a fair and impartial trial upon a joint charge, then the court abuses his discretion in failing to grant the

severance. The only material difference in the defenses offered by defendants is that each claimed the other was

driving the car at the time of the collision. If a conviction could only be had against the defendant actually driving

the car, there might be merit in the contention advanced by defendants. As previously indicated, such is not the case

preclude a fair trial jointly. On this point the ocurt, in Story v. U. S., supra, said: ‘There was no abuse of discretion

by the trial court in refusing to grant a severance, requested by appellant, as the joint character of the acts of

O’Connor and Story rendered a joint trial peculiarly appropriate, and a severance might have resulted in a

miscarriage of justice.’

In Lucas v. U. S., 70 App.D.C. 92, 104 F.2d 225, 226, a defendant claimed that his co-defendant was hostile to him

and that the Government’s case was based upon the co-defendant’s accusations when they were jointly charged with

a felony. In upholding the trial court’s denial of a severance the court said: ‘If the government had been compelled

to try each separately, Johnson would have placed the blame on Lucas and Lucas on Johnson, and the probable

result would have been an acquittal of both. In these circumstances it was within the sound judicial discretion of the

trial court whether to grant separate trials.’ Under the facts and circumstances in the instant case we find no abuse of

discretion in overruling the motions to sever.

sheriff had been unable to serve a subpoena on Hubert McVay, a Pope County resident, who was somewhere in the

State of Missouri; that, if present, McVay would testify to the effect that Wren was driving the car at the time of the

collision and that Lewis had been unable to ascertain McVay’s whereabouts in Missouri but believed that he would

be able to do so in time for him to testify at the next term of court. Upon presentation of the motion the court

overruled it on the ground that the absent witness was out of the jurisdiction of the court.

After the court had overruled the motion, the prosecuting attorney stated that he would agree that McVay would

testify as set out in the affidavit but would not agree as to the truthfulness of the statement. At the conclusion of the

the affidavit in support of his motion for continuance which set out the testimony that McVay would purportedly

give, if present. This occurred at 11:35 a. m. Upon reconvening at 1:30 p. m. the court changed his ruling and

withdrew the statements with a strong admonition that said matter be entirely eliminated from the jury’s

consideration as evidence in the case. Counsel for Wren stated there was no objection to the court’s action but

requested a mistrial because the harm had already been done. This motion was overruled and Lewis objected to the

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withdrawal of the statements.

First, we hold that the court did not abuse his discretion in overruling the motion for continuance. Both the affidavit

of defendant Lewis and the return of the subpoena by the Pope County sheriff showed that McVay was out of the

court’s jurisdiction and there was no definite showing as to defendant’s ability to produce the witness at the next

term of court. Under a similar state of facts in Striplin v. State, 100 Ark. 132, 139 S.W. 1128, this court held there

was no abuse of judicial discretion in refusing a continuance. See also, Hays v. State, 156 Ark. 179, 245 S.W. 309.

We have also held that no abuse of discretion occurs by refusing a continuance where the testimony of the absent

witness would only be cumulative. Hazel v. State, 174 Ark. 1078, 298 S.W. 357. There was testimony other than

that given by Lewis tending to show that Wren was the driver of the automobile at the time of the collision.

Nor do we think that error was committed in withdrawing the purported statement of the absent witness from the

consideration of the jury after it had been introduced. The only time a defendant has the right to have a statement of

an absent witness read to the jury in a criminal case is where the motion for continuance is defeated solely by the

State admitting the truth of the testimony which the witness would give, if present. The State declined to do this in

the statement as evidence without an admission of its truthfulness. If the court had permitted the jury to consider the

statement as evidence without an admission of its truthfulness and the motion for continuance had been denied on

that account, then error would have been committed. Burt v. State, 160 Ark. 201, 256 S.W. 361. Where the court in

the first instance finds that a defendant is entitled to a continuance, it is an abuse of discretion to overrule the motion

upon an agreement by the State to admit that the absent witness would testify to the facts set out in the motion but

not agreeing to admit that such facts are true. Tiner v. State, 110 Ark. 251, 161 S.W. 195.

It is clear from the record that the trial court did not deny the motion for continuance because the State would admit

that the absent witness would testify to a certain state of facts, but because said witness was out of the jurisdiction of

the court and there was no proper showing that he would appear at a subsequent term of court. We also hold that the

any prejudice that might have resulted to Wren by first admitting the statement.

and its excessive use but had no prejudice against either defendant. He also stated that he could not give a drinking

defendant as fair trial as one who was not drinking and that it would take less evidence ‘on the innocence of a man

that had not been drinking than on one that had’. On further examination he stated that he did not know the

defendants, had no prejudice against them and would give them a fair and impartial trial regardless of his prejudice

against liquor and would be bound only by the law and evidence in reaching a verdict. The statute, Ark.Stats. § 43-

1919, states that actual bias is the existence of such a state of mind on the part of the juror, in regard to the case or to

and without prejudice to the substantial rights of the challenging party. The entire examination shows that the juror

was prejudiced against the use of alcohol but reveals no prejudice against either defendant, or the particular case in

which they were being tried, and that he would try them impartially despite his prejudice against liquor. The trial

court has a wide discretion in excusing jurors for cause and his discretion will not be disturbed unless it can be

shown that it has been abused. Under a similar situation in Eddy v. State, 165 Ark. 289, 264 S.W. 832, this court

held that no abuse of discretion had been shown and that the trial court correctly held the juror qualified. The juror

Gibby had not formed or expressed any opinion as to the guilt of the defendants as was true in the cases relied on by

the defendants. We find no error in the court’s refusal to excuse him for cause.

that each was entitled to that number. The statute, Ark.Stats. § 43-1922, states that, ‘the defendant’ is entitled to

eight peremptory challenges in felony cases less than capital. It is further provided in Ark.Stats. § 43-1929: ‘When

several defendants are tried together, the challenge of any one of the defendants shall be the challenge of all.’

Although this statute was not mentioned in Hearne v. State, 121 Ark. 460, 181 S.W. 291, the court held that the law

only allowed defendants tried jointly in a felony prosecution the number of peremptory challenges to which each

would be entitled on a separate trial. The defendants are critical of this holding which is contrary to the rule followed

in many jurisdictions, but we think § 43-1929, supra, removes all doubt as to its applicability in this state.

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the charges against the defendants. Defendants point to certain inconsistencies in the testimony of some of the

knowledge that the car was being operated recklessly, while defendant Wren contends that the proof shows

conclusively that Lewis was actually driving the car at the time of the collision. It was the province of the jury to

resolve the inconsistencies in the testimony and adjudge the credibility of the witnesses. The testimony as to the

nondriver’s knowledge of the driver’s recklessness and incapacity to properly operate the car was in our opinion

sufficient to take the case to the jury. The evidence as a whole was sufficient to sustain the convictions. See

Campbell v. State, 215 Ark. 785, 223 S.W.2d 505.

Affirmed.