Carter v. State

• Court: Arkansas Supreme Court
• Writing for the Court: WOOD, J.,
• Citation: Carter v. State, 156 S.W. 443, 108 Ark. 124 (Ark. 1913)
• Decision Date: 28 April 1913
• Parties: CARTER v. STATE

156 S.W. 443

108 Ark. 124

CARTER v. STATE

Supreme Court of Arkansas

April 28, 1913

Appeal from Garland Circuit Court; C. T. Cotham, Judge; reversed.

STATEMENT BY THE COURT.

The indictment charged that "J. R. Carter, on the 29th day of July, 1912, in the county of Garland aforesaid, did unlawfully, feloniously, and with malice aforethought and after premeditation, and deliberation kill and murder one Bud Woodfork with a certain pistol which the said J. R. Carter then and there had and held in his hand, the said pistol being then and there loaded with gunpowder and bullets against the peace and dignity of the State of Arkansas."

The facts are substantially as follows: The appellant and deceased had an altercation in a restaurant, in the city of Hot Springs, during which the deceased slapped the appellant twice on the jaw with sufficient force to knock off his hat. There is some conflict as to whether or not he struck him with his closed fist or slapped him, but the proof shows that the appellant was not knocked down by reason of the blow. Carter had been practically an invalid for a year or two preceding this difficulty, and deceased was a strong, husky man, being a laborer and a ball player. They were separated by the person in charge of the restaurant, and the deceased was pushed out at the front door, and told to go home. Deceased grabbed up some rocks and came to the front door for the purpose of throwing at appellant, but was prevented by the manager of the restaurant. He went around to the side door, but was stopped there by other persons from throwing in. He went on down the street, and was gone twenty or twenty-five minutes, later coming back to the restaurant. Then appellant went out the side door, and was told to go home. The proof shows that he went on up to the saloon, where he had been employed, put on his coat and put a pistol in his pocket. He stood around perhaps twenty or twenty-five minutes at the saloon, and then started out, as he says, to get something to eat. The proof shows that he passed by the restaurant at which he had been in the custom of obtaining his meals, and went directly to the restaurant where he had had the difficulty with deceased. After walking about midways of the room, he raised his gun and fired one shot, which struck deceased in the breast. Deceased hallooed, "I am shot," and ran out at the side door and across the street, about a hundred feet, where he fell dead; that deceased had a rock, about the size of his fist, in his vest pocket, and appellant testified that the deceased was reaching into his left pocket at the time he shot; that at the time of the killing there was no renewal of the quarrel and nothing was said by either party at the time the shooting actually occurred.

When the first altercation took place at the restaurant a man by the name of Blue Jackson was with the deceased, Woodfork. He called appellant a vile name and urged the deceased to jump on appellant, and encouraged deceased by telling him he was his friend and would be with him.

Appellant offered to introduce testimony of what Blue Jackson did and said in a saloon when the appellant was not present. The court refused to allow this testimony, but ruled that he would permit testimony as to what all the parties said and did who participated in the second difficulty, some twenty or thirty minutes before the killing, while the appellant and the deceased were present, but would not permit the introduction of declarations and acts of third parties which were said and done outside of the presence of both appellant and the deceased.

The appellant was asked if anything happened that caused him to believe that he was being followed by Blue Jackson and Woodfork, and the court refused to permit the witness to answer, and the appellant saved his exceptions.

Appellant offered to prove that the deceased, within a few minutes after the attempted assault of appellant with rocks, was at a place near the scene of the difficulty and made a statement to the effect that he intended to get the appellant or kill him before the night was over. This threat was not communicated to the appellant and the court excluded it, to which ruling appellant duly excepted.

The court also excluded offered testimony of the general reputation of the deceased in the community where he resided for violence and turbulence.

Among others, the court gave the following instruction, to wit:

"If you believe from the evidence that threats were made in this case, it is proper for you to consider such evidence for the purpose of shedding light upon the state of mind existing between the defendant and the deceased at the time of the difficulty, and immediately thereafter."

The court refused appellant's prayer for instruction No. 12 as follows: "It is competent to prove threats by either party, against the other, if such have been made, for the purpose of shedding light upon the state of mind existing between the parties at the time of the difficulty, and also for the purpose of shedding light upon which of the two was the aggressor in the combat. Threats on both sides, either those against the defendant, or those made by him are to be considered by you, if any were made, for the purpose of shedding light as to the condition of mind between the two parties at the time of the difficulty, and as I said before as tending to shed light upon which was the aggressor in the difficulty."

The appellant duly excepted to the ruling of the court. Appellant was convicted of murder in the second degree and sentenced to twenty-one years in the State penitentiary, and appeals to this court.

Judgment reversed and cause remanded.

Appellant, pro se.

1. The demurrer to the indictment should have been sustained. 26 Ark. 323; 27 Ark. 493; 71 Ark. 150.

2. All facts concerning the assault of deceased upon appellant shortly before the killing are part of the res gestae, and are admissible in evidence, if sufficiently connected with the main transaction to throw some light upon it, and to show the motives of the parties to the killing. 34 Cyc. 1642; 21 Cyc. 927; 43 Ark. 103; 44 S.E. 985; 114 Am. St. Rep. 92; 61 N.E. 337; Jones on Evidence 429; 6 Enc. of Ev. 610; Id. 634; Id. 613.

3. The offered evidence of threats was competent testimony to show who was the probable aggressor. 6 Enc. of Ev. 767; 55 Ark. 593. And without question the court erred in refusing to give instruction 12, requested by appellant. 84 Ark. 121; 69 Ark. 148; 29 Ark. 248; 85 Ark. 381.

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

1. The indictment is good and the demurrer was properly overruled. Kirby's Dig., § 2229; 61 Ark. 88; Id. 358; 64 Ark. 144; 94 Ark. 65.

2. Testimony as to Blue Jackson's conduct in the saloon was properly excluded. Acts and declarations of third parties done and said out of the presence of both the appellant and deceased, were not admissible.

Even communicated threats by a third party would not justify one in arming himself and killing another by mistake. 145 S.W....