Cook v. State

• Court: Arkansas Supreme Court
• Writing for the Court: HUMPHREYS, J.
• Citation: Cook v. State, 121 S.W.2d 87, 196 Ark. 1133 (Ark. 1938)
• Decision Date: 07 November 1938
• Docket Number: 4099
• Parties: COOK v. STATE

121 S.W.2d 87

196 Ark. 1133

COOK v. STATE

4099

Supreme Court of Arkansas

November 7, 1938

Appeal from Conway Circuit Court; A. B. Priddy, Judge; affirmed.

Judgment affirmed.

J. W Johnston and Strait & Strait, for appellant.

Jack Holt, Attorney General, Jno. P. Streepey, Assistant Attorney General, for appellee.

HUMPHREYS J. SMITH, J., dissents.

OPINION

HUMPHREYS, J.

Appellant was indicted for murder in the first degree in the circuit court of Conway county for shooting his father and killing him on May 5, 1936, and upon a trial of the charge was convicted of voluntary manslaughter and sentenced to serve a term of two years in the state penitentiary as punishment therefor.

Appellant has duly prosecuted an appeal to this court from the judgment and seeks reversal thereof because he alleges the evidence is insufficient to sustain the conviction and because the court refused to give instructions Nos. 1 and 2 asked by him.

The rule governing as to whether the evidence is sufficient to sustain the verdict is that the verdict must be supported by some substantial evidence. If the verdict is sustained by any substantial evidence, when viewed in the light most favorable to the state this court, on appeal, cannot disturb the verdict and judgment.

The record reflects that about the first of February, 1935, appellant's father and mother separated. The father, H. W. Cook, commonly known as Wiley Cook, owned a farm with several houses upon it. One of the houses was occupied by appellant and the other by his father, Wiley Cook. Appellant's mother and two of their younger sons moved over to the house occupied by appellant and took practically everything out of the house or home place occupied by Wiley Cook. Appellant claimed to have rented a part of the farm upon which he was residing from his father and his father denied that he had rented it to him. The houses were about a half a mile apart. In January or February after their separation, Wiley Cook prevailed upon another son, Dick Cook, to come and live with him. Dick and appellant had a little fuss over the land. Wiley Cook had been trying to get appellant off the place because he had not paid any rent. Appellant stated to Dick Cook that he wasn't going to take orders off of his father and wasn't going to move. Before Dick Cook moved out to take care of his father he had a conversation with appellant in which appellant told him that he wanted him to come over and get the old gray headed son-of-a-bitch as he and his mother were going to take everything out of the house where his father was living. Dick replied to him that his father was able to take care of himself. Dick claimed he had the land rented where appellant was living. Appellant told Dick that he was going to work the land and didn't intend to move.

Appellant had a conversation with A. A. Scroggins, a nephew of Wiley Cook, about a month before the killing concerning the trouble between Wiley Cook and his wife. Appellant told Scroggins that if Wiley Cook didn't quit coming down there and bothering him he was going to use unfair means. Later appellant had another conversation with Scroggins and appellant told him that if Wiley Cook didn't quit bothering him he was going to shoot him.

On the morning of May 5, 1936, appellant put Monroe Dempsey to plowing in a field on the land he claimed to have rented from his father and which his father denied renting to him. Wiley Cook came into the field and asked Dempsey who gave him orders to plow and when he answered that appellant had he told him to quit. Dempsey tied the lines up and went back to appellants house, told him what occurred and got appellant's gun. Appellant took the gun out of his hand and when Dempsey refused to go back and plow without protection appellant went back with him taking the gun himself. When he reached the field he laid the gun down by a cherry tree and told Dempsey to go to plowing. Later in the morning his father returned and told appellant to get that "club footed son-of-a-bitch off of his land." Dempsey then unhooked one of the single trees and started after his father when appellant stopped him and told him to go back to plowing, which he did. Later on appellant called to Dempsey, "yonder comes daddy, get behind the horses," and appellant got behind the cherry tree. As his father approached Dempsey called to him and said, "Uncle Wiley, lets settle this without trouble, some other way," and Uncle Wiley said, "Hell."

At this juncture Dempsey testified as follows: "Q. About that time they started firing? A. The guns began firing. Q. Who fired first? A. Mr. Cook. Q. Who fired the next shot? A. Carl Cook, over my head, out over my head. Q. Mr. Cook fired, then Carl Cook fired, then they fired back and forth--How far apart--snap your fingers? A. I don't have much idea how fast they did fire, because I was frightened myself. I was interested in holding the horses. Q. It didn't seem to you that it took very much time in all, the shots that were fired? A. It wasn't as long as it seemed. Q. You say that while that was going on that Lewis came out from behind that clump of bushes, came on his father while he was shooting at Carl? A. Yes, sir. Q. And struck and hit him with his gun? A. Yes, sir."

During the exchange of shots or about the time the firing ceased between appellant and his father Lewis and James, brothers of appellant, came out of the brush and started toward their father. James had a gun. Wiley Cook fired at Lewis twice, but the boys ran on toward their father and Lewis struck him over the head with his gun, knocking the rifle out of their father's hands and they together with appellant who had run out to them overpowered their father and took a pistol out of his scabbard. During the firing appellant had shot his father in the breast, abdomen and legs and his father had shot him in the leg near the hip. They then put their father in the wagon and took him to appellant's house where he was administered to by physicians who had been sent for. Wiley Cook was in a semi-conscious condition, but asked the boys while being taken away not to kill him. Wiley Cook was taken from appellant's house to the hospital where he died the next day from the gun shot fired by appellant. When they were firing, appellant and his father were about ninety yards from each other.

The court instructed the jury on all degrees embraced in the murder charge.

He told the jury that manslaughter is the unlawful killing of a human being without malice, express or implied and without deliberation.

Then he defined voluntary and involuntary manslaughter as follows:

"Manslaughter must be voluntary upon a sudden heat of passion, caused by provocation...