Bruder v. State

• Citation: 161 S.W. 1067,110 Ark. 402
• Parties: BRUDER v. STATE
• Decision Date: 08 December 1913
• Court: Supreme Court of Arkansas

161 S.W. 1067

110 Ark. 402

BRUDER v. STATE

Supreme Court of Arkansas

December 8, 1913

Appeal from Scott Circuit Court; Daniel Hon, Judge; affirmed.

STATEMENT BY THE COURT.

The defendant, John Bruder, was indicted for murder in the first degree, charged to have been committed by shooting Tony Bly. The facts proved by the State, briefly stated, are as follows:

The deceased, Tony Bly, was the proprietor of a saloon in the city of Fort Smith, in Sebastian County, Arkansas, and was killed in it by the defendant shortly after 5 o'clock in the afternoon of the 23d day of January, 1913. The defendant had been in the saloon earlier in the afternoon, in the absence of the deceased, and had assaulted one of deceased's customers and beat him up. Between 3 and 4 o'clock in the afternoon, after the deceased had returned to his saloon, the defendant again entered it. Deceased was behind the counter, and called the defendant to him and told him that he understood that he had had some trouble there and said that he did not want him to come in his place any more raising trouble with his customers. He told the defendant he was trying to run a decent place, and that if he came in there any more and beat up any of his customers, he was going to take a gun and kill him. Defendant told him that if he felt that way about it he would not come in any more and, after shaking hands, the defendant left the saloon. Later, he returned to the sidewalk in front of the saloon and stood around and walked up and down the sidewalk for a while. He raised on tiptoes and looked in at the front window of the saloon, and then walked off. He then returned and walked into the saloon, and, drawing an automatic revolver out of his overcoat pocket, shot the deceased five times. When the defendant began to shoot, the deceased threw up his hands and began to back off. The deceased was behind the counter, and continued to back with his hands upraised until he fell to the floor.

One of the witnesses for the State says that he was standing talking to the deceased, when the defendant came in; that he heard some one say, "Tony, did you say you would kill me?" That he looked around and saw the defendant there. That he then heard Bly say, "Yes, I said I would kill you if--" and that he did not hear the rest of the sentence. That defendant was standing there with his hand in his overcoat pocket and jerked out his pistol and began to shoot at the deceased, and shot five times in rapid succession. That the deceased made no hostile demonstrations toward the defendant, but raised his hands and began to back away.

The deceased died a few days later from the effects of the gunshot wounds. Several eye-witnesses to the killing testified that the deceased made no hostile demonstrations whatever toward the defendant, and that he was unarmed.

John Bruder, the defendant, testified for himself: I was drinking heavily on the day that I shot deceased, and had been for several days prior thereto. On the afternoon of the killing as I walked out of the saloon, Bly, who was sitting behind the little office, said to me: "If you come in here again, I am going to kill you." I asked him what he meant, and he repeated his statement. I shook hands with him and walked out. I was not mad, and did not know that he was. I had tried to borrow a pistol before this from Mack Dean. I told him I was staying out at my brother's house, which was situated away from other houses, and I needed a pistol to protect me. Later, I met another friend who told me where I could get a pistol, and I went over there and got it. A young man whom I did not know had told me that he would go out to the house and stay all night with me, and I started out to find him. I looked in the door of Bly's saloon for him and did not see him. Afterward, I came back and looked in again, and changed the pistol from my pants pocket to my overcoat, because it was rubbing my leg. While I was standing there in front of the deceased's saloon, some one came out and told me they wanted to see me in the saloon. I asked him who wanted to see me, and he replied that it was Tony Bly. I told him that Tony was mad at me and half crazy, and he said that was all over and Tony wanted to apologize. I looked in and saw Tony, and he motioned to me to come in. I went in, and he was standing behind the counter. I said to him, "What do you want, Tony? You said you were going to kill me?" He replied, "Yes, that is what I said, and I am going to do it;" and he reached for his gun. When he did that, I commenced shooting. I had an automatic pistol, and do not know how many times I shot.

Cross examination: When Tony said he was going to kill me, he reached behind him, and I do not know whether he reached for his pocket or reached for the shelving. I reached across the counter to do the shooting.

In rebuttal, the State introduced a number of witnesses who testified that they knew the reputation of the defendant for truth and morality in Fort Smith, where he lived, and that it was bad.

The jury returned a verdict of guilty of murder in the second degree, and fixed the defendant's punishment at a term of twenty-one years in the State penitentiary.

Judgment affirmed.

Cravens & Cravens and T. N. Sanford, for appellant.

1. The court erred in refusing a continuance. 100 Ark. 307; 99 Id. 547; 103 Id. 353.

2. It was error to excuse J. A. Wagoner as a juror who had been accepted by both sides; also to refuse to discharge the entire panel. Kirby's Dig., §§ 2360, 2396; 63 Ark. 527.

3. The court erred in permitting the State to ask leading questions of the witness, Trice. 92 Ark. 237; 84 Id. 81; 63 Id. 108.

4. Counsel have the right to inspect any memorandum used by an opposing witness. 149 F. 123; 40 Cyc. 2463; 34 Mich. 369; Jones on Ev., § 876 (2 ed.); 98 Am. Dec. 616; 1 Gr. on Ev. (14 Ed.) 466.

5. Dean's testimony was admissible, as corroborative of defendant's. 14 Ark. 555; 52 Id. 310; 34 Id. 732; 29 Id. 386; 24 Id. 507; 53 Id. 387; 91 Id. 555; 99 Id. 604; 78 Id. 293; 70 Id. 110.

6. The court's charge to the jury was erroneous. 67 Ark. 595; 62 Id. 306; 56 Id. 242; 82 Id. 505; 68 Id. 337. The giving of an incorrect instruction is not cured by giving a correct one. 107 Ark. 245; 65 Id. 64.

Wm. L. Moose, Attorney General, and Jno. P. Streepey, Assistant, for appellee.

1. There was no error in refusing a continuance. Valentine v. State, 108 Ark. 594.

2. The burden of proof is upon him who applies for a continuance for an absent witness to show that he used due diligence, etc. 94 Ark. 169. The discretion of the court was not abused. 94 Ark. 538, 545-7.

3. Wagoner, the juror, was properly excused for illness. 99 Ark. 462-474.

4. The offering party has no right to treat a memorandum used to refresh memory as evidence by reading it to the jury. 1 Wig. on Ev., § 673, note 1.

5. The cross examination of Dean was permissible. 53 Ark. 379-390.

6. The instructions were correct; but, if not, no proper objections were saved. Scroggin v. State, 109 Ark. 510; 94 Ark. 169; 108 Ark. 508.

OPINION

HART, J., (after stating the facts).

The first assignment of error relied upon by the defendant for the reversal of the judgment of conviction is that the court erred in refusing to grant him a continuance. The motion states that T. V. Sprinkles and Chance Rodgers would testify that, immediately prior to the killing, they were standing in front of deceased's saloon, when some young white man came out of the saloon and told the defendant that deceased wanted him to come in the saloon and that Bruder replied "I do not want to come in because Tony is mad and half crazy." That the man then said: "Tony is all right now and wants you to come in." And Bruder replied: "Well, if he is all right and wants to see me, I will go in;" and immediately he went into the saloon. That defendant is informed and believes that the witness, Sprinkles, is at his home in Poteau, Oklahoma, confined by illness, and is unable to attend court. That the witness, Rodgers, is at his home at Stigler, Oklahoma; but that both of said witnesses can and will be present at the next term of the court. A certificate of a physician was introduced, to the effect that Sprinkles was under his care and was too sick to attend the trial. The motion for continuance also stated that W. L. Peevey would testify, if present, that just before the shooting he heard the deceased tell some young man whom he did not know to go out in front of the saloon where Bruder was and tell him to come inside. That Peevey was duly served with a subpoena in this case, and that his home was in Crawford County, Arkansas. One of defendant's attorneys testified that he had taken the affidavit of Peevey as to what his testimony would be. That he had pointed Peevey out to a deputy sheriff in the city of Fort Smith, and that the witness had been duly served with a subpoena, and that he had seen Peevey in Fort Smith not longer than a week before the trial. In regard to the witness, Rodgers, it may be said that no excuse whatever is shown by the defendant for his non-attendance at the trial, and no testimony is given tending to show that he could be procured at the next term of the court if the case was continued. Rodgers was a non-resident of the State of Arkansas, and his attendance at the trial could not be compelled under the process of the court. Sprinkles was also a non-resident of the State, and was, therefore, beyond the jurisdiction of the court. It is true that a certificate of a physician was presented to the court, showing that the witness was sick and unable to attend court; but this is not sufficient to show that his voluntary attendance at court could have been procured. His deposition might have been taken, under the...