Ballentine v. State
| Decision Date | 16 November 1925 |
| Docket Number | 232 |
| Parties | BALLENTINE v. STATE |
| Court | Arkansas Supreme Court |
Appeal from Montgomery Circuit Court; Earl Witt, Judge; affirmed.
Judgment affirmed.
Gibson Witt, Jerry Witt and Norwood & Alley, for appellant.
H W. Applegate, Attorney General, and Darden Moose, Assistant, for appellee.
Appellant was indicted for the crime of murder in the second degree, alleged to have been committed by shooting one Fielding Vines, and upon his trial was convicted of voluntary manslaughter, and sentenced to seven years imprisonment in the penitentiary.
The first assignment of error for the reversal of the judgment is that the evidence is not sufficient to sustain the conviction. We think it will sufficiently appear from the facts hereinafter recited that this assignment of error is not well taken, as the evidence is legally sufficient to support a conviction for an even higher grade of homicide.
On July 17, 1924, deceased swore out a warrant for the arrest of appellant, one Lum Baggs and another person, charging them with stealing watermelons, and the cause was set for trial for the following day before a justice of the peace. Objection was made to the admission of testimony showing this fact; but we think it was competent as tending to show the state of feeling between the men and the probable motive for the killing, defendant being tried on an indictment for murder in the second degree, and was also competent touching the disputed question whether deceased or appellant was the aggressor in the fatal encounter.
When appellant was arrested on the larceny charge the officer making the arrest told him that he would take him to Mount Ida, where he could make bond for his appearance the next day at the trial. Before starting for Mount Ida, the officer allowed appellant to go home for the purpose of changing his clothes, and appellant admits that while in the house for this purpose he put his pistol in his pocket. He explained that he did this because the officer told him that he would take him to Mount Ida but he could not bring him home, and appellant put the pistol in his pocket for protection during his return home from Mount Ida.
On the day appellant was arrested, he made the remark in the presence of Sterling Vines, a brother of the deceased, that "No son-of-a-bitch better not swear I was in their watermelon patch," and the admission of this testimony is also assigned as error. But we think it was admissible for the same reason as was the testimony that a warrant for appellant's arrest had been sworn out by deceased.
Appellant testified that the constable told him he did not know Baggs for whom the officer also had a warrant of arrest, and appellant volunteered to find Baggs for the officer, and for this purpose he went to Sims, where he found Baggs, and he and Baggs then arranged to go to Mount Ida in Baggs' car, and Baggs got a wrench to make some repair about the car, and, as they were walking down the road, they were followed by deceased, who called to them and asked them to "Wait there a minute." When appellant heard deceased calling to them, he and Baggs turned and walked back to meet deceased.
The testimony of Sterling Vines was to the effect that his brother was going down the road, and he was following him, and when appellant and Baggs discovered the presence of Fielding Vines they turned around and walked back to where Fielding Vines was. Some conversation had taken place before Sterling Vines came up to the party, and as he walked up he heard appellant and his brother each say to the other "go to your eyes, " and following these remarks his brother struck at appellant and reached down to pick up a rock. As his brother straightened up, appellant began firing. Appellant had gotten partly behind Baggs, and this shot powder- burned Baggs' arm. At the first shot deceased turned to run, and as he ran he was shot twice. One of these shots entered the right shoulder from the rear and killed deceased.
The court gave a very full and comprehensive charge on the issues involved, and no objection is made to the instructions given but it is insisted that the court erred in refusing to give instructions A, B and C...
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