(248 S.W.)

part of the employees of the Terminal Railroad | sulted from human agency, or any cause not Company in St. Louis, then your verdict should the act of God or the public enemy. But the be for the defendant. But, on the contrary, if rigor of this liability might be modified through you find the delay was the result of the com- any fair, reasonable and just agreement with bined strike of the employees of the Terminal the shipper which did not include exemption Railroad Company and the employees of the against the negligence of the carrier or his Missouri Pacific Railroad Company, then that servants. The inherent right to receive a comwould be no defense in this action on the pensation commensurate with the risk involved part of the railroad, and your verdict should the right to protect himself from fraud and imbe for the plaintiff." position by reasonable rules and regulations, and the right to agree upon a rate proportion

The contention of counsel for the defend-ate to the value of the property transported." ant that the court erred in giving this instruction is based upon paragraph 6 of the contract of shipment, which is copied in the

Where the trial judge refuses to grant a new trial because of misconduct on the part of the public at the trial, the Supreme Court will be slow to control his discretion, and will not do so unless it is manifest that it has been abused, resulting in a miscarriage of justice. 5. Criminal law 723(1), 730(14), 1037(2)—11. Homicide 340 (3)-Instructions on manReference by state's counsel to demonstration by spectators held improper, but curable by court's action, and not reversible error, where no correction was requested.

In a prosecution for homicide, where evidence on behalf of the state showed a premediA reference by counsel for the state to a tated killing, while that on behalf of the dedemonstration in the courtroom as a spontane- fense showed self-defense, and there was no ous outburst of the honest hearts of the people evidence of killing in the heat of passion, or killwas improper, but not so flagrant that its prej-ing as a result of an unfounded fear, and the udicial effect could not have been removed by | jury found accused guilty of murder in the secappropriate directions to the jury, and does ond degree, any instructions given by the court not require reversal where accused did not call on the issue of manslaughter were favorable to the trial court's attention to the remark, and accused, and therefore he cannot complain of ask for an instruction to the jury not to consid- errors in the giving or refusal of such instrucer it. tions.

12. Criminal law 829(5) Requested instruction there was no duty to retreat held covered by charge given.

Though a requested instruction that, under the circumstances, accused was under no duty

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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to retreat stated a correct rule, there was no error in refusing it where the court, after instructing on the duty of accused to use all means in his power consistent with his safety to avoid the necessity of killing, charged that, if the assault was so fierce as to make it apparently as dangerous for him to retreat as stand,

it was not his duty to retreat.

life of the appellant, and had taken his gun to the People's Bank where he transacted his business, and had left the same there to be used by him when the opportunity presented for shooting the appellant; that the appellant had been informed of these threats of McIlroy; that on the day of the killing Mell

roy saw appellant standing unarmed, as he

Appeal from Circuit Court, Logan County; believed, near appellant's car in front of the Jas. Cochran, Judge.

William Pendergrass was convicted of murder in the second degree, and he appeals. Affirmed.

Robt. J. White, of Paris, John H. White, of Laconia, G. C. Carter, of Ozark, and John P. Roberts and Evans & Evans, all of Booneville, for appellant.

J. S. Utley, Atty. Gen., and W. T. Hammock, Asst. Atty. Gen., for the State.

People's Bank; that McIlroy thereupon went and got his gun and came out of the bank with the gun in a shooting position, and was seeking appellant to take his life; that when the appellant saw McIlroy come out of the door with the gun he left the man with whom he was talking at the edge of the sidewalk, and ran up the stairway in an effort to get away from McIlroy; that he lost his footing after he had ascended 8 or 10 steps, and fell or sank down; that McIlroy pursued along the sidewalk in a trot or run until he came in front of the stairway with his gun in a shooting position, and just as he was in. the act of bringing his gun toward the appel

shot in order to save his own life. There was testimony to support this contention of the appellant, and we deem it unnecessary to set forth in detail the testimony in support

of the respective contentions.

WOOD, J. On Friday, January 13, 1922, appellant shot and killed Clay McIlroy on the northeast corner of the public square in the town of Ozark, Franklin county, Ark. McIlroy at the time was armed with a 12-lant to shoot the appellant fired the fatal guage choke bore shotgun loaded with BB shot. The appellant used a small automatic pistol. On the northeast corner of the square is situated the People's Bank building. It is a two-story building, the lower story being devoted to the banking business, and the upper story containing offices. The appellant, with another lawyer, had an office on the second floor. The stairway leading to the second story was immediately west of the bank The appellant fired the shot that killed McIlroy from this stairway. At the time appellant was some 8 or 10 steps up the stairway.

building.

A 19 year old unmarried daughter of Mcllroy had become pregnant and given birth to a baby on January 23, 1922, in Oklahoma City. She claimed that the appellant was the father of the child, and that she went to Oklahoma City at his suggestion, and upon his promise that he would defray the expenses of the trip. Miss Mcllroy was staying at her home in Ozark at the time she had sexual intercourse with the appellant. After she became pregnant she notified him of her condition, but did not tell her father. Her father ascertained her condition after she reached Oklahoma City. She did not tell her father that the appellant was the author of her ruin.

It was the contention of the state that the appellant, without provocation, waylaid McIlroy and killed him at a time when the appellant was in no danger of death or great bodily harm from McIlroy. There was testimony to warrant such contention on the part of the state. On the other hand, it was the contention of appellant that Mellroy knew that his daughter had accused the appellant of being the father of her child, and that because of this McIlroy had threatened the

The appellant was indicted by the grand jury of Franklin county of murder in the first degree for the killing of McIlroy. The venue was changed to the Northern district of Logan county, where the trial was had, resulting in a verdict of guilty of murder in the second degree, and a judgment sentencing the appellant to imprisonment in the state penitentiary for seven years, from which judgment is this appeal.

We will dispose of the alleged errors in the rulings of the trial court in the order in which they are presented in the brief of learned counsel for appellant.

1. The appellant contends, first, that the court erred in refusing a new trial on account of a demonstration in the courtroom by the spectators, and the deputy sheriff who selected and summoned the talesmen on the jury, and on account of the argument of Hon. Steel Hays in urging the jury to convict the defendant because of the demonstration. To sustain the above assignment of error which was made one of the grounds of the motionfor a new trial the appellant attached several affidavits. One of the affiants stated, in substance, that he heard the argument made by Mr. Wolf, one of the attorneys for the state, and that at the close of his argument a great many persons in the audience engaged in a noisy demonstration by clapping their hands, stamping their feet, and hollering in loud voices; that he saw Guy Lipe, who was sitting on a bench near to, and in plain view, of, the jury. He had his hands raised above his head, and was clapping them, and

stamping his feet, and in that manner as- have resulted from such improper exhibition sisting and engaging in the demonstration. of public sentiment in favor of the prosecuLipe is the chief deputy sheriff of B. B. Foster, sheriff of Logan county. Other affiants corroborated the above statement as to the character of the demonstration in the court

room.

Two of the appellant's attorneys stated in an affidavit in support of the above ground for a new trial that they were present, and heard the argument of Steel Hays, one of the counsel for the prosecution, who stated in his argument with reference to the demonstration by the audience the following: "It was the spontaneous outburst of the honest hearts of the people of this county-of your friends and neighbors."

tion. But the demonstration, as evidenced by the statement of the court, was not of so flagrant a character that any prejudice occasioned by it in the minds of the jury could not be completely removed by the efforts which the trial judge made to eliminate the same. The conduct of the deputy sheriff in charge of the jury was, to be sure, the most culpable of all, because he was a sworn officer of the law, whose duty it was to preserve the utmost impartiality in his conduct before the jury. However, we are convinced that the instructions of the presiding judge to the jury not to allow the applause in any way to influence them in their verdict, and telling them that, if they did so, it would show

The court put into the record the following them unworthy to sit as jurors in any case,

statement:

"At the conclusion of the speech of Otha Wolf, an attorney representing the state, there was a sudden outburst of applause by a small portion of the audience located near the east front door, and extended to other portions of the audience, but by no means a general ap

were adequate to eliminate from the mind of any sensible and honest juror whatever prejudice might, for the moment, have been lodged in his mind.

[3, 4] The manifestation of popular senti. meat in a court of justice for the purpose of influencing the decision of a cause is always plause. Immediately the court rapped vigorously for order, and order was almost imme- to be deprecated, and, where such sentiment diately restored. The court rebuked the crowd is voiced in a manner calculated to create severally for the outburst, directed the sheriff an abiding bias or prejudice which enters to arrest any one whom he saw applauding, and bring them before the court, and directed the sheriff, if another applause occurred, to clear the room of spectators, and admonished the jury that they must not allow the applause of the audience in any way to influence them in their verdict, and said to them that, should

they do so, they would be unworthy as jurors, and ought not to be allowed to sit in any case. If the Honorable Steel Hays made the statement in his address to the jury that it was the spontaneous outburst of the honest hearts of the people of this county, of your friends and neighbors, the statement was not called to the attention of the court, and no exceptions were saved to such statement."

[1, 2] The statements of the presiding judge with reference to the character of the demonstration in the courtroom following the argument of the attorney Wolf must be accepted as the facts concerning such demonstration and the rulings of the court concerning the same. The statements show that the outburst of applause was by no means general, and that the trial judge immediately took vigorous action, by way of reprimand to the audience and instructions to the sheriff and admonitions to the jury to correct any prejudicial effect in the minds of the jury that might have been caused by such demonstration. The demonstration that was made by the audience was exceedingly reprehensible, and, if the court had not promptly, and on its own motion, taken the steps indicated to counteract the prejudice which such demonstrations were calculated to produce in the minds of the jury, we would not hesitate to reverse because of the probable prejudice which might

into the determination of a cause, then the only possible method of obviating the failure in the administration of justice caused by such undue influence is to award a new trial. To anticipate and to prevent such occurrences presents a serious problem, and one ofttimes most difficult, and even impossible,

to solve. It would not do to invalidate trials because of some sudden outburst of popular feeling which it is impossible for the presiding judge to control. Much must be left to his judgment and discretion in such cases, and, where he fails to grant a new trial because of such misconduct on the part of the public, this court will be slow to control his discretion, and will not do so unless it is manifest that same has been abused, resulting in a miscarriage of justice. The facts of this record as evidenced by the statements of the trial judge do not warrant us in coming to that conclusion.

[5] Concerning the remarks of counsel for the state in regard to the demonstration, such remarks were, of course, calculated to accentuate in the minds of the jury any prejudice which the demonstration might have produced; but these remarks also were not so flagrant that their prejudicial effect could not have been removed by appropriate directions to the jury. The statement of the trial judge shows that his attention was not directed to these remarks, and counsel for the appellant at the time saved no exceptions to them, and did not ask the court to instruct the jury not to consider them. Such being the case, appellant cannot now take advantage of a failure of the trial judge to

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exclude such remarks, or to reprimand counsel for having made the same. Smith v. State, 79 Ark. 25, 94 S. W. 918; Bell v. State, 84 Ark. 128, 104 S. W. 1108; Wilson v. State, 126 Ark. 354, 190 S. W. 441.

[9] Motions for a new trial on the ground of newly discovered evidence are addressed to the legal discretion of the trial judge, and, unless it appears from the record that there has been an abuse of that discretion, the ruling of the trial court refusing a new trial for such ground will be sustained. Anderson v. State, 41 Ark. 229; Armstrong v. State, 54 Ark. 364, 15 S. W. 1036. The court did not abuse its discretion in overruling the motion for a new trial on the ground of newly discovered evidence.

[6, 7] 2. The appellant next contends that the court erred in refusing to grant a new trial on account of alleged newly discovered evidence. He brings forward to sustain this ground of his motion for a new trial the affidavits of William Bearden, John McCormick, and Mrs. Godwin Lewis. The affidavit of William Bearden shows that he on one [10] 3. Appellant contends that the court occasion observed an intimacy and familiari- erred in refusing a new trial on account of ty in conduct between L. M. Guthrie and Ed- the misconduct and disqualification of Juna Jane McIlroy, which counsel for appel- ror Joe Girard. The record shows that Girlant contends would tend to show that ap- ard was selected on the jury that tried the pellant was the victim of a blackmailing appellant. He was a member of the regular scheme on the part of Edna Jane McIlroy, panel, and on his voir dire he qualified himto which Guthrie was a party. The affidavit of Mrs. Lewis shows that she would testify to facts which would tend to prove that Edna Jane McIlroy told her that she had never had intercourse with any man except the appellant, and that appellant forced her to such intercourse at the point of a gun, and that Miss McIlroy wrote to the appellant demanding money, and that Miss McIlroy's father saw the letter. Such testimony as the above was wholly collateral and irrelevant to the issue as to whether or not the appellant killed McIlroy in self-defense. Moreover, the testimony of these witnesses, even if relevant, was only for the purpose of impeachment. Newly discovered evidence which goes only to impeach the credibility of a witness is not ground for a new trial. Dewein v. State, 114 Ark. 472, 170 S. W. 582.

[8] The affidavit of McCormick shows: That he would testify that he witnessed the killing. That "he saw McIlroy come out of the door of the People's Bank with a shotgun in his hand, and heard McIlroy say as he came out, 'I am going to kill the son of a bitch.' That appellant ran from where he was talking with a party across the sidewalk into the stairway. That Mellroy changed the gun from his right hand to his left; put the gun to his left shoulder and ran along the sidewalk with the gun to his shoulder, and as he got in front of the stairway he was bringing the muzzle of the gun around into the stairway when he was shot and fell."

The above testimony was but cumulative of the testimony of several witnesses adduced at the trial which tended to show the circumstances of the rencounter to be substantially as disclosed by the alleged newly discovered evidence of McCormick. Under numerous decisions of this court a new trial will not be granted on the ground of newly discovered testimony which is but cumulative in character. Hayes v. State, 142 Ark. 587, 219 S. W. 312; Huckaby v. Holland, 150 Ark. 85, 233 S. W. 913; and many cases cited in 4 Crawford's Arkansas Digest at page 3819.

self to sit on the jury by stating that he did not know anything about the facts of the case, and had not formed or expressed an opinion as to the guilt or innocence of the appellant, and that, if selected, he would try the case fairly and impartially according to the law and the testimony, and that he was not prejudiced against the appellant. The affidavit of one of the attorneys for the appellant shows that appellant and his counsel did not know at the time Girard was accepted by them as a juror that he had expressed the opinion that the appellant ought to be hung. To sustain this ground of his motion for a new trial appellant also brought forward the affidavits of two parties to the effect that during the August term of the court, 1922, at which the trial of the appellant was had, and before the trial began, they heard Joe Girard say that he knew Pendergrass and McIlroy, and knew enough about the case to know that Pendergrass ought to be hung for killing McIlroy. To rebut the statements made by the two affiants as to what Girard said the state adduced the affidavit of Girard in part as follows:

"I have read the affidavit of Walter Leach of the county of Wagoner, state of Oklahoma, as the same is copied in the application for a new trial in the case of State of Arkansas v. Willard Pendergrass, and I have no recollection of making such statement to any one."

It appears that the affidavits tending to show the prejudice of Juror Joe Girard were made by parties who lived in Oklahoma. These affidavits do not state the occupation of the affiants, and no facts are set up that would tend to advise the court as to the identity of the affiants and the credibility that should be given their affidavits. It is not shown that appellant asked that they be brought before the court for observation and personal examination,

As we have already stated, it was shown by the affidavit of one of appellant's counsel that the juror Girard qualified himself under oath as a juror by answering that he