Page:Bone v. State (1940).pdf/4

 color, in the selection of jurymen has heen shown in this case.

In the case of Bone v. State, 198 Ark. 519, 129 S.W.2d 240, a former appeal of this case to this court, it was said:

"" Had these three negro electors been regularly placed upon the panel of the jury by the jury commissioners in the discharge of their duties, there could not have justly been any criticism on account of the fact that there might not have been a negro juror in the final trial of the case. We are attempting to make clear and emphasize the matter that the test lies not in the fact that there was no juror of the negro race upon the trial jury, but the vice is in an omission by administrative officers, jury commissioners, for instance, in the systematic exclusion of negroes from the regular jury panel""

We hold, therefore, that this assignment is without merit.

(4) Appellants next complain because the trial court permitted evidence of injury inflicted on John Deaver and Leslie Crosnoe during the fighting and after the shooting occurred. They objected to this testimony on the ground that appellants were not charged with an assault on Deaver but with the killing of his wife.

The court permitted the introduction of this testimony on the theory that it was part of the res gestae, and we think tbe court committed no error in so doing. The injuries to Deaver and Crosnoe were received in the course of the encounter in which they were engaged with appellants and during which Deaver's wife was killed.

In Childs v. State, 98 Ark. 430, 136 S.W. 285, this court said: "Under the law all that occurred at the time and place of the shooting which had reference thereto or connection therewith was part of the res gestae. Byrd v. State, 69 Ark. 537, 64 S.W. 270. Res gestae are the surrounding facts of a transaction, explanatory of an act, or showing a motive for acting. Carr v. State, 43 Ark. 99."

(5) Complaint is next made because the court gave an instruction permitting a verdict of first degree