Carr v. State

• Decision Date: 21 February 1921
• Docket Number: 193
• Citation: 227 S.W. 776,147 Ark. 524
• Parties: CARR v. STATE
• Court: Arkansas Supreme Court

227 S.W. 776

147 Ark. 524

CARR v. STATE

No. 193

Supreme Court of Arkansas

February 21, 1921

Appeal from Mississippi Circuit Court, Osceola District; R. E. L Johnson, Judge; reversed.

Judgment reversed and cause remanded.

George L. Teat and J. T. Coston, for appellant.

1. The court erred in holding that defendant had no right to ask the character witnesses for the State on cross-examination as to specific acts of violence on the part of deceased.

2. The argument of Hon. H. H. Rogers, counsel for the State, was prejudicial and improper.

3. The trial judge in overruling objections to leading questions intimated to the jury his opinion that defendant should be convicted. 140 S.W. 282; 44 Ark. 120; 144 S.W. 196; 159 Id. 195-6; 67 Id. 756-7; 85 Id 237; 11 Tex.App. 378. See, also, 134 S.W. 927; 152 Id. 992; 67 Ark. 117-18. It was error to deny the right to cross-examine the witnesses. 67 Ark. 117; 19 So Rep. 139; 7 Id. 193; 45 P. 862; 32 N.E. 306; 35 So. Rep. 667.

The remarks of the court were improper and prejudicial, and only a reversal will cure the error. 58 Ark. 368; 207 S.W. 435-6.

J. S. Utley, Attorney General, and Elbert Godwin, Assistant, for appellee.

1. The remarks of H. H. Rogers for the State were not improper nor prejudicial, and on objection the jury were properly told to disregard them, which cured any seeming error.

The testimony set out in the affidavit can not be considered, because not set out in the bill of exceptions. 2 R. C. L. 143. The fact that the court sustained the objections to any improper remarks of counsel and instructed the jury to disregard them cured any error. 74 Ark. 256; 100 Id. 437; 86 Id. 600. See, also, 74 Ark. 256.

2. There was no error in the ruling of the court as to the admission of evidence as to character, etc. 29 Ark. 131; 3 Cyc. of Ev. 49; 10 R. C. L. 953; 3 Enc. of Ev. 49-50.

Exceptions to testimony or the ruling of the court should be specific, not general. General objections will not be sustained on appeal. 2 R. C. L. 94-5.

3. The remarks of the court in overruling the objections to testimony were not improper nor prejudicial. 58 Ark. 368 and 207 S.W. 436, are not in point.

4. The proof here shows murder in the first degree and hence the jury must have given defendant the benefit of every doubt, and there is no error in the court's rulings.

OPINION

HUMPHREYS, J.

Appellant was indicted in the Osceola District of the Mississippi Circuit Court for murder in the first degree, for killing George McCulloch, on the 13th day of August, 1920, with a club, to which he interposed the plea of self-defense. Upon the trial, he was convicted of murder in the second degree and sentenced to imprisonment for twenty-one years. From the judgment of conviction, an appeal has been duly prosecuted to this court.

At the time of the tragedy, appellant and the deceased resided at Pride's Spur upon the same farm. They had moved from Mississippi to that place in December, 1919. They had a quarrel the day before the killing.

The evidence adduced by the State was, in substance, to the effect that appellant claimed deceased had called him a vile name, for which he intended to kill him, explaining that he intended to walk up behind him, knock him down, take his gun away from him and kill him; that, on the following day, when the freight train came in, one hundred pounds of ice was put off the ice car for the deceased, and three hundred pounds for appellant; that appellant appeared on the scene first, and, while talking to the boy in charge of the ice car, the deceased appeared, whereupon appellant went away; that he soon returned, and, while the deceased was stooping over for his ice, appellant struck him on the back of the head with a pick handle, and, as the deceased started to fall, he pushed him over on the ground; that, while the deceased was attempting to get up, appellant struck him on the forehead and again knocked him down and struck him a third lick after he fell; that he then got on him, searched his pockets but found nothing; that a third party was prevented from interfering by appellant's son, who drew a pistol upon him; that, about this time, the wife of the deceased, who witnessed the tragedy, ran up and caught the club, and, when her husband got up, assisted him to their home where he became unconscious and died between three and four o'clock the next morning from the effect of the blow inflicted upon him by appellant.

The evidence adduced by appellant was, in substance, to the effect that, the day before the fatal encounter, a dispute, initiated by deceased, resulted in an attempt by the deceased to attack appellant with an ax, which attack was prevented by J. M. Black and the wife of deceased, whereupon the deceased went into his house threatening appellant as he went, and, against the entreaties of his wife, returned in a moment and, from the porch, pointed his finger toward appellant and said: "I will get you yet;" that, on the next day, while appellant was standing near the train, the deceased came up, ran his hand in his pocket and remarked that he had told appellant he was going to kill him; that appellant grabbed a pick handle, struck deceased twice in the forehead, and, when he fell, appellant, after laying the stick down, got on the deceased, searched his pockets and found a pair of steel knucks, which he gave to a bystander and then voluntarily retired from the conflict; that deceased arose and walked home, a distance of one hundred yards, with his wife; that he died fourteen hours thereafter from a fracture of the skull in the rear, caused by a blow on the forehead.

In the course of trial, exceptions were saved by appellant to certain arguments made by Honorable H. H. Rogers, who was assisting in the prosecution of the case, and to a statement of the court in overruling an objection interposed by appellant's counsel to a question of the prosecuting attorney, also to the ruling of the court to the effect that appellant had no right to ask the character witness for the State, on cross-examination, as to specific acts of violence on the part of the...