Burton v. State
| Decision Date | 11 June 1973 |
| Docket Number | No. CR,CR |
| Citation | 495 S.W.2d 841,254 Ark. 673 |
| Parties | Douglas Wayne BURTON, Appellant, v. STATE of Arkansas, Appellee. 73--35. |
| Court | Arkansas Supreme Court |
John P. Corn, Little Rock, for appellant.
Jim Guy Tucker, Atty. Gen. by James W. Atkins, Asst. Atty. Gen., Little Rock, for appellee.
Douglas Wayne Burton was convicted of voluntary manslaughter of Bobby Dale Johnson. He asserts two points for reversal, but both are based upon a contention that the evidence was insufficient to sustain the conviction. We find it to be sufficient and affirm the judgment.
Burton was tried upon a charge of second degree murder, which, on the eve of trial, was reduced from a first degree murder accusation. During the trial the court directed a verdict of not guilty on the second degree charge, but submitted the case to the jury on the lesser included offense of voluntary manslaughter. The killing took place at the Frontier Bar about 5:00 p.m. on Saturday afternoon, April 13, 1972. Burton and Johnson were intimate acquaintances. There was evidence tending to show that they competed for the favors of one Jackie Hopson, the older sister of Johnson's wife, and that Jackie, after having become pregnant by Burton, accompanied him to Texas, but returned to Little Rock with Johnson after about two weeks. There was also testimony that Johnson had, shortly before the fateful events of Saturday, April 13, made threatening remarks about Burton and that some of these were communicated to Burton.
During Saturday morning both Burton and Johnson had been at the Terminal Cafe, drinking and enjoying the society of friends. Burton and his friends left to pursue their weekend recreation elsewhere, and Johnson and Larry Patterson, a convicted felon and mutual friend and acquaintance of the parties, went next door to the Frontier Bar when it opened about noon in further pursuit of their day's pastime of drinking and associated pleasure. An autopsy revealed that Johnson's blood alcohol content was more than twice as high as that required as a minimum basis for a presumption that an automobile driver is under the influence of intoxicating liquors. See Ark.Stat.Ann. § 75--1031.1 (Repl.1957). The physician who performed the autopsy expressed the opinion that Johnson was 'quite high' and that the alcohol content was such as to impair his judgment and slow his reflexes.
According to Patterson's testimony, Burton had summoned Johnson to the table where Burton was seated in the Terminal Cafe, after they had been exchanging baleful stares, where the two talked and then went outside, but returned after a few minutes, when Burton sat at the table he had left and Johnson commenced playing the pinball machine Patterson had been playing while Johnson and Burton talked. Late in the afternoon Burton and his companions entered the Frontier Bar and sat down in a booth near the front door where Sally Richardson was seated. After a few minutes Ms. Richardson pointed and snapped a pistol at Burton, who slapped her vigorously and disarmed her. Ms. Richardson promptly re-armed herself with another pistol she took from her purse with the announcement that it would fire.
There was testimony that, when Burton entered the Frontier, Johnson had reclaimed his pistol from Larry Patterson, to whom he had entrusted it upon arrival at the Frontier, and remarked that 'he is loaded for bear,' and 'I think it's fixin' to come down.' Patterson said that he and Johnson then discontinued their pool game at the rear of the bar and seated themselves about the middle of the bar, approximately 20 feet from the booth occupied by Burton and Ms. Richardson. Patterson also related that, as he passed Burton, the latter said, 'I wish one of them punks would say something to me like that,' but denied that he was speaking to Patterson. After Burton had disarmed Ms. Richardson, Johnson made some remark indicating that her fate would have been much worse had she pointed her weapon at him rather than Burton, and made a boast of the effectiveness of a weapon fired by him. There was testimony that Johnson's statement was a response to a tearful inquiry by Ms. Richardson as to why he did not help her. Immediately thereafter, Johnson demonstrated by firing a shot from his pistol which struck the ceiling at a point high over the head of Ms. Richardson. This provoked an inquiry from Burton as to whether 'that went for him' and thereafter he arose, drew a pistol from his pocket and commenced firing at Johnson, who fell, wounded, and challenged Burton to shoot his best shot, because he (Johnson) was hit. Patterson testified that Johnson had returned his pistol to his pocket after firing at the ceiling.
The testimony of witnesses who were not directly involved in the encounter as to what happened after the shooting started lends little to our ability to reconstruct a total picture of ensuing events, largely because an immediate general exodus from the vicinity took place with most of the patrons of the bar rushing to a bathroom, where they were deprived of the sanctuary they sought because the first fugitive to arrive there had thoughtlessly locked the door. At any rate, after a lull in the shooting and the verbal exchange between Burton and Johnson, additional shots were fired, and Burton was seen backing out the front door, pointing two pistols toward the interior. One witness testified that Burton looked back in the door and inquired about the whereabouts of that 'so and so.' Johnson's wife, who was seated in a car outside, said that Burton fired two shots back into the interior of the Frontier, before running away. One witness said that at the time of Burton's exit Johnson was 'crunched' behind a booth. He was found unconscious in a pool of blood on the floor as a result of wounds inflicted by bullets fired from a revolver. Johnson was taken to Baptist Medical Center, and was pronounced dead upon arrival. The examining physician found a bullet wound in Johnson's left chest and two in his arm. A later autopsy revealed that the fatal...
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