Blair v. State

• Decision Date: 19 October 1901
• Citation: 64 S.W. 948,69 Ark. 558
• Parties: BLAIR v. STATE
• Court: Arkansas Supreme Court

64 S.W. 948

69 Ark. 558

BLAIR v. STATE

Supreme Court of Arkansas

October 19, 1901

Appeal from Newton Circuit Court E. G. MITCHELL, Judge.

Judgment affirmed.

De Roos Bailey and Pace & Pace, for appellants.

The evidence does nt sustain the verdict. The court erred in not allowing the diagram to be introduced in evidence. Rice, Ev. (Cr.) 154; Rice, Ev. (Civil) 170, 1171; 6 L. R. A. 768; 4 id 21, 22; 45 N.Y. 224; 125 N.Y. 147-8; 106 N.Y. 603. The discretion of the trial court as to the admission or rejection of such evidence is reviewable. 82 N.Y. 41; 83 N.Y 464; 106 N.Y. 598; 118 N.Y. 88; 125 N.Y. 147. The court erred in not admitting evidence as to appellant's statements made directly after the killing. These statements were admsisible as part of the res gestae. 43 Ark. 104; 2 Bing 99; 1 Q. B. 61; 29 Tex. 201; 30 Tex. 619; 60 S.W. 143; Whart. Cr. Ev. § 962. It was error to admit, on rebuttal, evidence confirmatory of the state's contentions in the original case. 3 Rice, Ev. § 218. The court erred in refusing to give the twenty-third instruction asked by appellant, as to voluntary manslaughter. 9 S.W. 567; id. 573; 25 L. R. A. 746. The court also erred in giving the thirteenth instruction asked by the state, as to the weight to be attached to defendant's evidence in his own behalf. 58 Ark. 353; 61 Ark. 88. The court erred in giving the tenth instruction. 67 Ark. 594; 41 S.W. 1044.

G. W. Murphy, Attorney General, for appellee.

It was not error to reject evidence as to appellant's statements after the killing. 66 Ark. 494. The thirteenth instruction was correct. 58 Ark. 353; 61 Ark. 88.

OPINION

BATTLE, J.

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 thirteen 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:

First. 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.

Second. 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.

Third. 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 occurred at the time of the killing, and was not admissible for the purpose of showing an excuse or palliation.

Fourth. 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 Deshazo saloon soon after the killing. The saloon was a little more than one hundred and twenty-five 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 gestae, according to the rule laid down in Little Rock Traction & Electric Company v. Nelson, 66 Ark. 494, 52 S.W. 7, and cases cited therein.

Fifth. 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.

Sixth. 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 deceased, Miller, engaged in such fight with a chair, the same being a deadly weapon, or one calculated to inflict great bodily injury upon the defendant, and that defendant, after being set upon with a chair, drew his pistol and fired the fatal shot, you will acquit the defendant of the charge of murder in the second degree." This request is not a correct statement of the law in this ease, and the court...