Bloomer v. State

• Decision Date: 06 May 1905
• Citation: 87 S.W. 438,75 Ark. 297
• Parties: BLOOMER v. STATE
• Court: Arkansas Supreme Court

87 S.W. 438

75 Ark. 297

BLOOMER v. STATE

Supreme Court of Arkansas

May 6, 1905

Appeal from Ashley Circuit Court, ZACHARIAH T. WOOD, Judge.

Reversed.

Judgment reversed and cause remanded.

W. A Roby, Butler & George and Eldon A. Bolton, for appellant.

The testimony of Mrs. Gee was improperly admitted. 69 Ark. 468; 64 Ark. 123. A person under arrest is not called upon to deny a criminal charge, and no admissions will be implied from silence. 32 Ala. 560; 13 Allen. 570; 1 Sm. & M. 560; 12 R. I 557. Evidence of good character of deceased was not admissible. 2 Bish. Cr. Pro. § 612; 53 Am. St. 705. The testimony of Mrs. Rogers was incompetent. 38 Ark. 221, 498; 45 Ark. 165; 39 Ark. 278.

Robert L. Rogers, Attorney General, for appellee.

Evidence of the defendant's throwing the pistol away was admissible. Whar. Cr. Ev. 544; Underhill, Ev. 144.

OPINION

RIDDICK, J.

This is an appeal from a judgment of the Ashley Circuit Court convicting the defendant, Lum Bloomer, of murder in, the second degree and sentencing him to confinement in the State penitentiary for the period of five years.

The facts, briefly stated, are that Lum Bloomer, a boy seventeen years old, went on a Sunday to the house of a neighbor, and there took several drinks of whisky. He afterwards became engaged in a friendly altercation with one Adams, and Adams seized his hat and ran down the road with it. Bloomer ran after him, and drew his pistol, and fired it off, though Bloomer testified that he did this in fun, and with no intention of hitting Adams, but thinking, as he says, that it would cause him, to stop and return the hat. But Adams only ran the faster, and Bloomer mounted his pony, which was hitched near, and galloped down the road in pursuit of Adams. Adams left the road, and then returned to the house, but Bloomer, in running his horse up the road, overtook an old man by the name of Jim Laird, who was traveling on a mule along the highway. Bloomer ran by him and splashed mud on him. This led to some words between them, the result of which was that Bloomer shot Laird twice, killing him almost instantly.

After consideration of the record and the argument of counsel, we are of the opinion that there were some errors committed in the trial of the case in reference to the admission of testimony on the part of the State. The defendant was arrested at the home of his grandmother, with whom he lived. When, the officer arrived, it was night, and he (Bloomer) was asleep, or appeared to be. When they aroused him, he staggered around the room as if he was drunk. The officer asked him where his pistol was, and he said that he did not know. Thereupon his grandmother said that he had thrown it in the garden. She said that when he came home, "he said it had done one piece of dirty work, and he didn't want to see it any more." This statement of what his grandmother had said was objected to by counsel for the defendant, who asked the court to exclude it from the jury. The court thereupon asked if the defendant was present at the time this statement was made, to which the witness replied that he was present. "but he was staggering around the room drunk, and I don't know what he heard." Thereupon the court said that he would permit the statement to go to the jury, and leave them to determine its weight.

Now while the acts of a person charged with a crime may be admitted as evidence against him, the courts should be careful in applying the rule that the silence of one charged with crime may under some circumstances be used as evidence against him. To render such evidence competent, it must be shown that the accused heard the remark, and that the circumstances in proof naturally called for a reply on his part. The...