Brown v. State, 4957

• Decision Date: 14 December 1959
• Docket Number: No. 4957,4957
• Citation: 231 Ark. 363,329 S.W.2d 521
• Parties: Willie (Bob) BROWN, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 521

329 S.W.2d 521

231 Ark. 363

Willie (Bob) BROWN, Appellant, v. STATE of Arkansas, Appellee.

No. 4957.

Supreme Court of Arkansas.

Dec. 14, 1959.

Robinson, Sullivan & Rosteck, Little Rock, for appellant.

Bruce Bennett, Atty. Gen., by Ancil M. Reed, Asst. Atty. Gen., for appellee.

HARRIS, Chief Justice.

Appellant, Willie (Bob) Brown, was charged with First Degree Murder, and on trial was convicted of Voluntary Manslaughter and his punishment fixed at five years' imprisonment in the State Penitentiary. From the judgment comes this appeal.

Numerous alleged errors are cited in the Motion for New Trial, the first several questioning the sufficiency of the evidence. The proof on the part of the State reflected that appellant and Elmer Isaacs were members of the Elks Club, located at 914 1/2 Gaines Street, and were present there on Saturday night, June 21st. Isaacs was employed at the Elks Club and was in charge of the bar and gambling activities. Brown had reported a shortage from the tables, and testified that Isaacs called him 'watch-dog', and 'every time I would go past him, he would wheel around like this (indicating) so that I could see that pistol.' George King, who was also at the club, stated that between two and three a. m. (Sunday morning), Isaacs told him to stay away from Bob Brown--that he was going to kill Brown and didn't want to shoot King accidentally. The witness testified that he told Brown about this conversation, and asked the latter to leave. Around 7 a. m., King went downstairs from the building, and saw Brown sitting in his car. He testified that appellant called to him, and he went over, and the two engaged in conversation. When they heard Isaacs coming down the stairs, Brown got out of the car and started around it. The witness stated that Brown called Isaacs and said, 'I want to talk to you', then 'don't come out of your pocket', and further testified that Brown fired three shots in quick succession. Other testimony indicated that there was a pause after the first shot, but that the last two were fired in quick succession. Both King and Bud Davis (who was walking down the stairs with Isaacs) testified that they did not see a gun in Isaacs' hand when Brown commenced shooting. From Davis' testimony:

'A. Well, he was standing up there at the curb when I saw him and he walked up and called Mr. Ike and told him not go to his pocket and I just thought they was playing and when I saw anything he shot him and he kind of staggered, and after he came to the door and kind of straightened up, Bob shot him a couple more times.

'Q. You heard him say 'Don't go for your gun'? A. Yes, sir.

'Q. Did Ike have his gun out coming downstairs? A. No, sir.

'Q. Did you know he had a gun? A. No, sir.

'Q. Did you see it in his hand coming down the steps? A. No, sir.

'Q. When did you see it? A. When he straightened up to come back to the door.'

All three shots struck Isaacs, and Dr. H. A. Dishongh, county coroner, testified that any one of the three could have been a fatal wound. A pistol was found under Isaacs' body, but was on safety. The proof thus clearly reflects that Brown was armed in advance, had been told several hours earlier that Isaacs had threatened him (Brown), but instead of leaving or trying to avoid an encounter, was apparently waiting in his car for Isaacs to leave the club. The jury could certainly have found that Brown was in no danger of losing his life, or of receiving great bodily harm; that he was the aggressor, and opened fire without any legal justification. ¹ The proof was adequate to justify a conviction for manslaughter, and in fact, might well have justified a conviction for a higher degree of homicide.

By assignment No. 9, appellant argues that the court erred in refusing to allow Buford Husband to testify relative to threats made by the deceased toward appellant. A record was made in Chambers, which reflects only threats made toward Husband, rather than threats toward appellant. The testimony was properly refused.

By assignment No. 10, appellant argues that the Court erred in making a remark in open court, which was printed in the Arkansas Gazette, on Tuesday, February 17, 1957, as follows:

'When all of Sullivan's cross-examination questions to King produced only more details about the threat, Judge Kirby asked Sullivan if King were his witness. Kirby remarked that Sullivan had not challenged any of King's testimony on cross-examination.'

The assignment of error pointed out that the jury had ample opportunity to read the article containing this statement. As noted by the Attorney General, it is not clear whether this assignment of error deals with the remark made by the court in the presence of the jury, or whether the assignment relates to the newspaper article which could have been read by the jury. As regards the former, the record reflects that near the end of the cross-examination, after several questions by appellant's counsel, the court said:

'The Court: Let him answer the questions. Is this your witness?

'Mr. Sullivan: No, I am cross-examining him.

'The Court: You haven't been cross-examining him.'

No objection was made to the remark, and accordingly, the alleged error cannot be considered by this Court. See Roach v. State, 222 Ark. 738, 262 S.W.2d 647. Turning now to the newspaper article, it might first be stated that no such remark (as was attributed to it by the story) appears to have been made by the court; at any rate, it is not shown that the article in question was objected to, or even mentioned, during the trial. Furthermore, there is nothing in the transcript which indicates that any juror read the article. Of course, it is necessary that appellant show not only that members of the jury read the item, but that they were prejudiced thereby. The record also reflects that upon recessing February 16th, the court admonished the jury not to read any newspaper articles about the case. No objection having been made, and no prejudice having been shown, it follows that this assignment is without merit.

It is argued that the court erred in 'permitting the State to offer parts of a statement or confession made by the defendant into evidence and in refusing defendant's request for a copy of such purported statement or confession.' According to Brown, he was taken from the jail to the prosecuting attorney's office the day after the shooting occurred, and required to make a statement. 'There was so many people up there--I thought it was a bunch of TV men and radio men and reporters and those two officers and I don't know who all--Deputy Sheriff Bussey.' Appellant's argument indicates that he considered the statement as being in the nature of a confession. The statement was not a confession, was not signed, was not considered by the State as a confession, and was never offered in evidence by the prosecuting attorney. During cross-examination, the prosecuting attorney, for the purpose of impeaching appellant's testimony, interrogated Brown as to some answers which had been given under questioning in the statement taken the day after the shooting, and which had been transcribed by a stenographer. The purpose was to show the inconsistencies between appellant's testimony before the jury and his statement made in the prosecuting attorney's office. Counsel's objections were overruled by the court. Prior to commencing the trial, appellant's counsel requested a copy of the statement, and during the examination, they again made the request. The request was disallowed by the court. Appellant argues that in permitting the prosecuting attorney to read excerpts from the statement, the State was enabled to present to the jury such portions as favored the prosecution, without letting them hear the portions that favored the defense; that the jury should have been allowed to see, or hear, the entire statement read. In Black v. State, 1949, 215 Ark. 618, 222 S.W.2d 816, 818, the appellant objected to the use, by the deputy prosecuting attorney, of notes transcribed by a stenographer relating to what the accused had said at the police station after arrest. This Court said:

'Objection was made and overruled to the use of these notes. Had a confession been shown, it would have been improper to introduce any part thereof without introducing the whole statement, however, the deputy prosecuting attorney in his examination of appellant offered to submit the transcription to appellant's attorney, which offer was declined. The principal use of the transcription was to ask appellant if h...