Cantrell v. State
| Decision Date | 01 March 1915 |
| Docket Number | 224 |
| Citation | 174 S.W. 521,117 Ark. 233 |
| Parties | CANTRELL v. STATE |
| Court | Arkansas Supreme Court |
Appeal from Crawford Circuit Court; James Cochran, Judge; affirmed.
STATEMENT BY THE COURT.
Appellant was indicted at the November, 1914, term of the Crawford circuit court, charged with the crime of murder in the first degree, alleged to have been committed by shooting one Bose Mullens with a gun. The shooting occurred on August 18, 1914. Upon his trial appellant was convicted of murder in the second degree, and his punishment fixed at imprisonment in the penitentiary for a period of six years and this appeal has been prosecuted from the judgment of the court sentencing appellant in accordance therewith.
The evidence on the part of the State is to the effect that appellant and deceased had had a previous difficulty, and there was bad blood between them, and that deceased, with his wife, mother and baby, were at church on the night of the shooting, where they remained until the services were over shortly before midnight. That deceased, with his family lived about three-quarters of a mile from the church, and they had gotten to within thirty or forty yards of his home when they turned into a trail which led from the road to his home, and that just as they left the road appellant and his brother, Jeff Cantrell, came in ahead of them, singing and whistling vulgar songs. Deceased had been carrying his baby but gave it to his wife, to whom he remarked, "I am going to get them to hush." Deceased spoke to appellant who said, "I wasn't talking to you, I was talking to Jeff," whereupon deceased said, "If you were not talking to me, all right, I will go into the house," and, as he started to do so, Jeff Cantrell said, "Shoot him, Melvin," after which three shots were fired in rapid succession, followed by others to the total number of about ten.
It is insisted on the part of the State that the shooting was preconcerted and that appellant and his brother overtook deceased and brought on the difficulty, and shot deceased, without cause or provocation.
The evidence on the part of appellant is to the effect that he, too, had been at church on the night of the shooting and that he and his brother went by the deceased's home, because it was the nearest way to their own home, and that they had passed deceased and his family, when deceased ran after them and, upon overtaking them, demanded that they "Hit a run," and threatened to shoot them upon their failure to run away and brought on the difficulty by striking appellant with his pistol, and by shooting at him and his brother, and that appellant was finally compelled to shoot deceased to save himself. Appellant insists that his brother fired none of the shots; while the evidence on the part of the State is to the effect that all of the shots were fired by appellant and his brother, and that deceased was unarmed. The State's evidence was further to the effect that deceased's wife and mother assisted him into his house, where he requested them to make him a pallet and to get his pistol and place it by his side for the reason, as stated by him, that he was afraid appellant and his brother would return and kill him. Upon appellant's motion the court excluded the evidence that deceased said he was afraid appellant and his brother would return, and that he wanted to protect himself; but refused to exclude the evidence that deceased's wife got the pistol and placed it by him on the floor.
A statement, alleged to be a dying declaration, was made on the night of the 1st of September by the deceased, but his death did not occur until the morning of the 4th thereafter. The admission of this statement is assigned as error. The deceased was shot three times, but two of his wounds were not serious. The third shot entered the body between the ninth and tenth ribs, and the deceased physician advised him that gangrene had set up and that his case was hopeless. The physician made this statement shortly before the alleged dying declaration was made, whereupon deceased said, "Doctor, you ought to know, I will take your word for it." This alleged dying declaration was reduced to writing by a witness named Hobbs, and there was proof that, when he approached deceased to write down his statement, deceased said, "If I am going to die, I might as well die first as last." The witness Hobbs, who wrote the dying declaration, was a justice of the peace, and testified that, before deceased made this statement, he asked his physician if there was really no hope for him and, being told there was none, he said that, if he was going to die, "the quicker the better; it didn't matter how soon," as he appeared to be suffering. The dying declaration was reduced to writing, is in narrative form, and the deceased speaks in the first person, and the declaration is prefaced by the recital of the doctor's statement and the declarant's reliance upon it.
Over the objection of appellant the State was permitted to prove, by a witness named Collier, that he had a conversation with Jeff Canttell at the church the night Mullens was shot, in which conversation Jeff Cantrell told him he had a pistol hid on the road home and that, if he would listen, he would hear it pop after the services were over.
The court, upon its own motion, gave an elaborate charge, consisting of thirty instructions, which covered every question involved in the case. No question is made about the correctness of any of these instructions. Indeed, they declare the law as it has been announced in many decisions of this court, and it is only urged that they were too general in their nature and that certain concrete instructions asked by appellant should have been given.
Judgment affirmed.
Sam R. Chew, for appellant.
The court erred in admitting the paper, purporting to be the dying declaration of the deceased, over the objections of the defendant. 2 Ark. 229; 68 Ark. 355; 81 Ark. 417; 104 Ark. 161; 99 Ark. 208; 58 Ark. 47; 1 Greenleaf on Evidence, vol. 1, (14 ed.), § 158, and authorities cited.
The dying declaration was reduced to writing, but was not signed by deceased, hence it was not competent and should not have been admitted. 103 Ark. 21.
The court erred in admitting the evidence of Mrs. Pollock, Wilbur Collier and I. M. Covington, it being no part of the res gestae, and was incompetent, inadmissible and prejudicial. 32 Ark. 220; 92 Ark. 586; 59 Ark. 422; 77 Ark. 444; 87 Ark. 34; 37 Ark. 67; 73 Ark. 152; 76 Ark. 487.
Instructions Nos. 10 and 11, requested by defendant, should have been given. 69 Ark. 134; 96 Ark. 206; 82 Ark. 499; 100 Ark. 132. Instruction No. 14, requested by defendant, should have been given. 62 Ark. 286; 95 Ark. 428; 58 Ark. 57; 58 Ark. 544.
Wm. L. Moose, Attorney General, Jno. P. Streepey, Assistant, for appellee.
The evidence was sufficient to warrant the court in admitting the dying declaration of the deceased, which was read to the jury. 109 Ark. 510; 113 Ark. 142; 172 S.W. 876.
The court did not err in admitting the testimony of Mrs. Pollock, Wilbur Collier and I. M. Covington.
The instructions given by the court covered every phase of the case. 109 Ark. 474, 479; Jacobson's Criminal Digest, p. 608, and authorities cited; 172 S.W. 876.
OPINIONSMITH, J., (after stating the facts).
The court properly excluded the evidence of the statement of deceased that he was afraid appellant and his brother would return and finish him. But we think no error was committed, under the circumstances, in admitting the evidence that deceased's wife brought his pistol and laid it by his side. The proof on the part of the State was to the effect that deceased, not only did not fire any of the shots, but that he was unarmed, and the evidence that his pistol was brought to him after the shooting was over was competent to show that he was not armed during the difficulty.
We think the court committed no error in admitting the proof of the dying declaration. The admissibility of such evidence is a preliminary question to be determined by the court, after a consideration of the proof of the conditions which make such evidence admissible. The case of Rhea v. State, 104 Ark. 162, 147 S.W. 463 reviewed a number of the decisions of this court...
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