Combs v. State

• Decision Date: 14 April 1924
• Docket Number: 297
• Citation: 260 S.W. 736,163 Ark. 550
• Parties: COMBS v. STATE
• Court: Arkansas Supreme Court

260 S.W. 736

163 Ark. 550

COMBS v. STATE

No. 297

Supreme Court of Arkansas

April 14, 1924

Appeal from Garland Circuit Court; Earl Witt, Judge; reversed.

Judgment reversed, and cause remanded.

Richard M. Ryan, Gibson Witt, Sr., N. A. McDaniel and South Strong, for appellant.

J S. Utley, Attorney General, John L. Carter Wm. T. Hammock, Darden Moose and J. S Abercrombie, Assistants, for appellee.

OPINION

WOOD, J.

This is an appeal from a judgment of the Garland Circuit Court sentencing the appellant to imprisonment in the State Penitentiary for a period of five years. We find that there are some errors in the record for which the judgment must be reversed, and the cause remanded for a new trial. We will therefore discuss only these errors and such other grounds of appellant's motion for a new trial as we deem necessary to properly guide the court on issues that may likely be raised at another trial.

The indictment is valid, and, in approved form, charged the appellant with the crime of murder in the first degree in the killing of W. A. Matthews, which charge also embraces voluntary manslaughter, the crime of which appellant was convicted. While the verdict of the jury did not find appellant guilty of voluntary manslaughter, the punishment fixed by the jury necessarily shows that voluntary manslaughter was intended. See §§ 2367-2368, Crawford & Moses' Digest. Bettis v. State, 164 Ark. 17, 261 S.W. 46.

1. About four o'clock on the afternoon of August 4, 1923, the appellant shot and killed Matthews in the latter's office in the city of Hot Springs, Arkansas, by shooting him four times with a pistol. There were no eye-witnesses to the actual rencounter. According to appellant's version, he entered Matthews' office on business, and, immediately upon entering the office, Matthews approached him with a shotgun leveled upon him. The appellant begged him not to shoot him, and jumped from left to right several times in an endeavor to get out of the way, when finally Matthews fired one barrel of his gun at a distance of eight or ten feet, and appellant fell to the floor. Matthews rushed upon him, and pressed the gun up against appellant's body. Appellant grabbed the muzzle of the gun and raised himself up, and they struggled back and forth across the floor of the office. The appellant backed Matthews against the left wall, and, while they were still struggling, appellant pulled his pistol and fired into Matthews. They both fell to the floor. Appellant pulled himself up, and staggered out of the office across the street. Appellant had no ill will toward Matthews, and was not expecting any trouble with him.

Several witnesses, who were in proximity to Matthews' office at the time of the rencounter, testified for the State to the effect that they heard the sound of shots as of a small gun before they heard the sound as of a large gun. The witnesses designated the louder reports as shots from the shotgun--the big gun--and the other reports as the shots from the small gun- -the pistol.

There was some testimony on behalf of the State to the effect that Matthews was running a stave-mill, and that he had been informed that appellant was cutting his ties and selling them, and that Matthews was angry at appellant on that account; that, on the day of the killing, a witness, who knew that Matthews was very angry with appellant, informed appellant of that fact, and appellant said that he was going down to Matthews' office and "cuss it out with him;" that appellant said this ten or fifteen minutes before the shooting, and was going towards Matthews' office at the time. There was testimony to the effect that, in March previous to the killing, the appellant had said that he would kill that "damned old son of a b___ if he ties into me and fools with me."

The physical facts surrounding the shooting were detailed in evidence before the jury. There was abundant evidence to corroborate the testimony of the appellant, and to sustain his contention that he killed Matthews in necessary self-defense; and, if the testimony in his behalf had been credited by the jury, it would have warranted a verdict of not guilty. On the other hand, the testimony adduced by the State was sufficient to warrant the jury in finding the appellant guilty of voluntary manslaughter. So the issue of appellant's guilt or innocence, under the evidence, was an issue of fact for the jury.

2. The appellant moved to disqualify the sheriff and his deputies to serve the venire facias for special talesmen to serve on the petit jury, alleging that the sheriff and his deputies were so prejudiced against him that they could not act impartially in summoning the talesmen. Testimony was adduced by the appellant to sustain his motion, and the court, after hearing the motion, sustained the same as to the sheriff's deputies but overruled same as to the sheriff himself, and directed the sheriff to personally summon the special talesmen.

Upon the evidence adduced on the hearing of the motion the court did not err in its ruling. The ruling of the court on this issue must be judged by the testimony adduced at the hearing, and not by any alleged misconduct of the officer after the jury was impaneled and the cause submitted. The appellant testified on the motion that, from what he had heard from his friends and other people, he did not believe that the sheriff would summon a fair and impartial jury. But duly qualified officers cannot be disqualified upon the opinion of prisoners, based upon hearsay that such officers are so prejudiced that they would not be impartial in the discharge of their sworn duties. In such matters the trial judge is necessarily vested with large discretion, and his ruling will not be disturbed unless it clearly appears that there has been an abuse of his discretion.

3. There was no error in allowing the State to introduce a chart or plat made by the coroner, Dr. Randolph, who, immediately after the killing, examined the dead body of Matthews. This plat described the location of the wounds on Matthews' body, showing the places of entrance and exit of the bullets which resulted in the death of Matthews. Dr. Randolph testified that this plat was a correct representation of what it purported to show. Hankins v. State, 103 Ark. 28, 145 S.W. 524.

4. Witness Virgil Spear testified, over the objection of appellant, that, some time along in March, 1923, Mr. A. A. Mandrell had given appellant a letter that Matthews sent appellant. Appellant was mad about it, and was talking to Mandrell, and said: "I am going in to town and I will kill that damned old son of a b___ if he ties into me and fools with me." Mandrell testified that in March, 1923, he had a conversation with appellant about Matthews. Matthews had sent a letter by witness to appellant. Witness delivered the letter to appellant, and it was so dark at the time he could not read it. Appellant rammed the letter down in his pocket and said, "That is two I have got today from the damned old son of a b___." Appellant further said, "If he had come up here himself I would have blowed his G___ d___ brains out, " and further said, "If old Bill Matthews don't quit fooling with me I will blow his G___ d___ brains out. I have took about as much off of him as I am going to take."

The appellant objected to the above testimony, on the ground that the threats were too remote.

As we have just seen, there was some testimony to the effect that the appellant, on the very day of the killing, and while he was on his way to Matthews' office, stated that he was going down there to "cuss it out with him." It is admitted that he went to Matthews' office armed with a pistol. While the testimony on behalf of appellant was to the effect that there was no ill-will between himself and Matthews, and that he did not anticipate any trouble with him, nevertheless there was testimony on behalf of the State tending to prove that there was ill-will between them, and these threats of appellant were not so ambiguous in meaning and remote in time as to render them incompetent testimony, as was the case in Billings v. State, 53 Ark.App. 219, upon which appellant relies. On the contrary, these threats were very pointed and definite, and tended to show a mental status on the part of appellant towards Matthews that was far from friendly. "Threats are circumstantial facts and a part of the res gestae when so connected with the conduct of the parties as to explain their motives." Palmore v. State, 29 Ark. 248. Where the point is in doubt as to who was the aggressor, uncommunicated threats are admissible as tending to throw light upon that issue, if they are sufficiently definite in fact to involve a threat, and sufficiently near in time to indicate present ill-will towards the person about whom they are made. Casat v. State, 40 Ark. 511; McGough v. State, 119 Ark. 57, 177 S.W. 398; Lee v. State, 72 Ark. 436, 81 S.W. 385.

It follows, from what we have said, that the court did not err in admitting the testimony of Spear and Mandrell, and it also follows that the court did not err in giving instruction No. 20, to which appellant objected, in which the court told the jury that, in determining who was the aggressor, "you may also take into consideration any threats made by the defendant toward the deceased: that any such threats, if any, may be taken into consideration by you for the purpose of shedding light on the state of mind existing between the deceased and the defendant.

5. Appellant assigns as error the ruling of the court in permitting the State to introduce maps and plats showing a diagram of Matthews' office, where the killing occurred. Witnesses testified that these plats were a correct representation of the premises. Appellant also...