Cooley v. State

• Decision Date: 17 May 1948
• Docket Number: 4495
• Citation: 211 S.W.2d 114,213 Ark. 503
• Parties: Cooley v. State
• Court: Arkansas Supreme Court

211 S.W.2d 114

213 Ark. 503

Cooley v. State

No. 4495

Supreme Court of Arkansas

May 17, 1948

Rehearing Denied May 31, 1948.

Appeal from Pulaski Circuit Court, First Division; Gus Fulk, Judge.

Affirmed.

Talley & Owen, for appellant.

Guy E. Williams, Attorney General and Oscar E Ellis, Assistant Attorney General, for appellee.

OPINION

Ed. F McFaddin, Justice.

Appellant, Robert Cooley, was tried on an information charging him with the crime of murder in the second degree, for the homicide of John L. Williams, alias William K. Tatum. From a conviction of voluntary manslaughter and a sentence of two years in the penitentiary, there is this appeal. The motion for new trial contains 16 assignments, which we group and discuss in topic headings.

I. The Sufficiency of the Evidence. This embraces assignments numbered 1, 2, 3, 5, 10 and 11 in the motion for new trial. It was admitted that appellant killed the deceased: self-defense was the plea. The evidence viewed most strongly for the State (as we do on appeals in criminal cases like this ^[1]) discloses that appellant shot and killed the deceased near a tavern or road house in Pulaski county. The deceased first had a difficulty with a witness named Emmet Williams. When appellant's wife intervened, the deceased turned on her; and then appellant entered the affray. He hit the deceased, and then -- after retreating into the darkness -- shot the deceased while he was not then approaching or pursuing the appellant. There was sufficient evidence to take the case to the jury, and to support the verdict rendered.

II. Amending the Information. This embraces assignments numbered 6, 7, 8, 9 and 12 in the motion for new trial. The information as originally filed gave the name of the deceased as John L. Williams. Preliminary to presenting the case to the jury, the court -- after hearing witnesses -- allowed the State to amend the information to show that the deceased also went under the name of William K. Tatum. There was no error committed by the court in this regard. The identity of the deceased was known to the appellant; and the adding of the various aliases could not possibly have affected his plea of self-defense. See § 24 of Init. Act 3 of 1936, as found on p. 1384 of the Acts of 1937, which is now § 3853, Pope's Digest; Bennett v. State, 201 Ark. 237, 144 S.W.2d 476, 131 A. L. R. 908; Tate v. State, 204 Ark. 470, 163 S.W.2d 150; and Underwood v. State, 205 Ark. 864, 171 S.W.2d 304.

III. Use of Written Statements of Witnesses. This embraces assignments numbered 13 and 16 in the motion for new trial. In the investigation of the homicide the prosecuting attorney had taken written statements from some of the witnesses. When they proved forgetful, or reluctant to testify, the court allowed the prosecuting attorney to refresh their memories from such statements. There was no error committed in this respect; see Combs v. State, 163 Ark. 550, 260 S.W. 736; and Crafford v. State, 169 Ark. 225, 273 S.W. 13.

IV. Rebuttal Testimony. This embraces assignments numbered 14 and 15. When the appellant was testifying he said he did not shoot at Louis Gray, and also that he did not "shoot up" Mose Edwards' tavern just a few days before the homicide here involved. On rebuttal, the State was allowed to prove:

(a) by Louis Gray, that the appellant did shoot at him; and

(b) by Mose Edwards, that the appellant shot a pistol six times at Mose Edwards' place of business just a few days before the homicide.

The appellant claims that this rebuttal was improper and prejudicial, and cites Carlley v. State, 191 Ark. 363, 86 S.W.2d 36. But the cited case affords appellant no support. In it, certain testimony about the defendant's conduct was introduced in the State's case in chief; and we held that it was prejudicial because it cast an additional burden on the defendant prior to his defense testimony. Here, the defendant took the witness stand, and made some sort of denial about having or using a pistol. Certainly, the trial court did not abuse its discretion in admitting the challenged testimony by way of rebuttal. Bobo v. State, 179 Ark. 207, 14 S.W.2d 1115.

V. Alleged Refusal to Give an Instruction. The court instructed the jury as to second degree...