Bennett v. State

• Decision Date: 09 May 1910
• Citation: 128 S.W. 851
• Parties: BENNETT v. STATE.
• Court: Arkansas Supreme Court

Page 851

128 S.W. 851

BENNETT v. STATE.

Supreme Court of Arkansas.

May 9, 1910.

Appeal from Circuit Court, Bradley County; H. W. Wells, Judge.

Ike Bennett was convicted of voluntary manslaughter, and he appeals. Affirmed.

On or about the 23d of November, 1908, at the town of Banks in Bradley county, Ark., Ike Bennett killed a young negro man named Young Hill. Bennett was engaged in the restaurant business. Hill, a short time before, had been working for Bennett. At the time he was killed, he was working for Dr. Thomas. Late in the afternoon, about dark, Hill was seen with two water buckets in his hand, going towards a well, and also towards Bennett's restaurant. When he got close to the restaurant, Bennett called to him and said, "Come in and get a drink," or to come in, and he (Bennett) would give him a drink. One witness said Bennett in kind of laughing way said, "G____ d____, come in and get a drink." Another witness says, he understood Bennett to say, "I feel like killing a damn negro," and the negro replied, "Why, Mr. Bennett." When Bennett told the negro to come in, the negro replied, "He did not care much about a drink, but would go anyhow." When Bennett "talked of killing the negro, he talked loud like he did not care who heard him." About 30 minutes after Bennett and Hill passed into the house, the shooting took place, Hill was shot with a pistol just above the right eye. The constable was notified that something was wrong in Bennett's restaurant. He summoned a posse, and they guarded the house. At the time the negro was killed, two other men besides Bennett were in the restaurant. They were working for Bennett. After Bennett killed the negro, he dragged him behind the counter. His explanation of this was that he had whisky in his house, and that people were coming in and out, and it was necessary to hide the body until he could get the whisky out of the house, and this he endeavored to do. The two men that were working for Bennett, as well as Bennett, were arrested. After Bennett and they were arrested, Bennett said: "Turn the other two loose. I killed the negro, and all that I hate is that I hadn't killed the s____ of b____ two or three weeks earlier." Bennett was drinking. His explanation of the killing was that it was accidental.

Bennett was indicted for murder in the first degree, and was convicted of voluntary manslaughter and sentenced to three years' imprisonment in the penitentiary. Appellant objected to the following questions and answers of witness Dr. Thomas: "Q. Did Young Hill, at any time just prior to his taking off, have any conversation, in which he was or wasn't present, in which he stated he was going to have to leave Banks on account of Mr. Bennett? A. Yes, sir. Q. From what you saw, and know, and observed of the negro, was he or was he not afraid of Mr. Bennett? A. I can't answer that question direct and positive. Q. From what you saw, heard, and observed, was the negro afraid of Ike Bennett? A. The negro was afraid of him, taking the circumstances connected there. The relationship between the deceased and the defendant at the time he worked for Ike Bennett I will answer like this: Ike and the negro were having conversations day after day while the negro was working for me. My wife was tired of it, and so was I, because it was taking up the time of the negro, and he came to him frequently. I was about half mad at him. My patience had got worried on account of the negro's time being lost. I told Young Hill, `If you want to work for Mr. Bennett, go and work for him.' I don't know that the conditions between Young Hill and Ike Bennett were strained."

The appellant also objected to the following questions and answers in the testimony of G. B. Colvin, sheriff, who testified in rebuttal on behalf of the state: "Q. Did you go to the place where this killing occurred? A. It was the following day; I suppose it was the middle of the morning, about 9 or 10 o'clock. Q. Did you see the interior of the house? A. Yes, sir. Q. Did you see any of the clothing or effects of the deceased in that house? A. Yes, sir. Q. What and where? A. I saw the clothing he had on. Q. Aside from that? A. I didn't see anything except his hat. Q. Where was it? A. Right in the corner of the room was a barrel of empty beer bottles. It fell to my lot to take charge of the liquors. In going through there, we found the hat covered up in the beer bottles."

During the cross-examination of witness E. C. Peak, who was a witness for appellant, the prosecuting attorney held in his hand a paper, and asked the witness questions in a manner indicating that the witness at the examining trial had made answers and given testimony contradictory of the testimony he was then giving. The following are illustrations of the manner in which the questions were asked: "Q. You testified that Ike was pouring out wine before? A. I don't know whether he was or not, or whether he had gone behind the counter yet or not. Q. At the examining trial you were asked that question, `Did you go for a hack or buggy or something?' A. Yes, sir. Q. Isn't this your answer: `Yes, sir; after a short while I took Ike's gun from him and put it away. Then I went to Dr. Thomas to get a buggy. I really wanted to get away from there to make myself clear.' A. Yes, sir; I wanted to get the whisky away. Q. Did you answer that at the examining trial? A. Probably I did. Q. You say now that Ike told you to go. You said in the examining trial, `Really I don't know whether Ike sent me for the buggy or not; I don't think he had anything to do with that.' That is what you testified in the examining trial, is that true? A. I don't know, sir. Q. Which one of these statements is true; the one then or now?" etc.

The court gave the following, among other, instructions, over the objection of appellant:

"(10) 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 cause and circumspection, it shall be manslaughter.

"(11) The killing of a human being without a design to effect death in the heat of passion, but in a cruel and unusual manner, unless it be committed under circumstances that would constitute excusable or justifiable homicide, shall be adjudged manslaughter."

"(14) You are instructed that a `reasonable doubt' is not a mere imaginary or captious doubt, but is one for which a good and valid reason should be given; and if you believe that the state has proved to a moral certainty, by the circumstances, conduct, and confessions of defendant, and by his actions and demeanor before and after the commission of the murder, then you will find the defendant guilty."

A motion for new trial assigning as error the various rulings to which objections had been made and exceptions taken was filed and overruled. This appeal has been duly prosecuted.

J. C. Clary and Herring & Williams, for appellant. Hal L. Norwood, Atty. Gen., and Wm. H. Rector, Asst. Atty. Gen., for the State.

WOOD, J. (after stating the facts as above).

1. We would not have disturbed a verdict, under the evidence, for murder in the first degree. There is evidence tending to show that appellant was guilty of murder in the first degree. There is no evidence tending to prove that appellant was guilty of voluntary manslaughter. His crime was murder in the first degree, if anything. By finding the appellant guilty, the jury accepted the testimony tending to prove guilt, and rejected the testimony of appellant tending to prove his innocence. Since there was testimony tending to show that appellant was guilty of murder in the first degree, he cannot complain because the jury believing him guilty of some...