Blair v. State
| Decision Date | 19 October 1901 |
| Parties | BLAIR v. STATE. |
| Court | Arkansas Supreme Court |
Appeal from circuit court, Newton county; E. G. Mitchell, Judge.
John Blair was convicted of murder in the second degree, and appeals. Affirmed.
De Roos Bailey and Pace & Pace, for appellant. G. W. Murphy, Atty. Gen., for the State.
John Blair was indicted in the Boone circuit court for murder in the first degree, committed by killing Charles Miller. The venue was changed to Newton county. He was tried there, and convicted of murder in the second degree. His punishment was assessed at 13 years in the penitentiary. Judgment was rendered accordingly, and he appealed to this court.
He assigns eight reasons why the judgment of the circuit court should be reversed:
1. He says it is not sustained by evidence. We have carefully read the testimony of witnesses contained in the bill of exceptions filed in the case, and find it sufficient to sustain the verdict of the jury.
2. He insists that the court erred in not permitting him to introduce a plat or diagram of the room where the killing occurred, and in refusing to permit a witness to explain his testimony by setting a table against a wall to represent the bed in the room where the deceased was killed, and show where the balls fired from the appellant's pistol at the time of the killing struck the wall with reference to the bed. Such diagrams and illustrations, when shown to be correct, are admissible for the purpose of explaining the testimony of witnesses. But the exclusion of them in this case was not prejudicial, because the testimony of witnesses was sufficiently full and explicit to enable the jury to clearly understand what the diagram and the table were intended to show.
3. He contends that the court erred in not permitting him to read as evidence the deposition of Aurora Smith, and in refusing to permit Annie Davis, Dennis Heflin, and Loyd O'Daniels to state what he expected to prove by them. By the testimony of these witnesses he sought to prove the cause of his assault upon some one, who was not the deceased, which occurred several days before the killing of Charles Miller. It seems that the deceased had made remarks about such assault which were offensive to the appellant. He was allowed to testify that he visited the room of the deceased for the purpose of explaining to the deceased why he had made said assault, and while there a rencounter occurred, in which he slew the deceased. The testimony that was offered and excluded was incompetent. It could not have thrown any light upon what transpired at the time of the killing, and was not admissible for the purpose of showing an excuse or palliation.
4. He says that the court erred in refusing to admit the testimony of George Dillsworth, James Gibson, Lee Martin, and Joe Weaver as to statements made by him at the Deshaze saloon soon after the killing. The saloon was a little more than 125 yards from the place of the killing. How long after the killing the statements were made the testimony offered does not show. The statement was to the effect that Miller struck appellant over the head, and that appellant shot him. This testimony was not admissible as a part of the res gestæ according to the rule laid down in Electric Co. v. Nelson, 66 Ark. 494, 52 S. W. 7, and cases cited therein.
5. He insists that the court erred in permitting the state to introduce original evidence in rebuttal, after the close of his testimony. Assuming that it was original, it was within the discretion of the court to admit it; and this discretion does not appear to have been abused. Evans v. Rudy, 34 Ark. 383.
6. He contends that the circuit court erred in refusing to instruct the jury, as asked in instruction numbered 23, which is as follows:
"Although you may believe that the defendant, John Blair, went to the room of Charles Miller, deceased, for the purpose of bringing on a difficulty and fighting said Charles Miller, and that such difficulty was brought on by the defendant, and that such fight ensued, still if you believe from the evidence that the...
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