Davis v. State

• Decision Date: 31 January 1944
• Docket Number: 4340
• Citation: 177 S.W.2d 190,206 Ark. 726
• Parties: Davis v. State
• Court: Arkansas Supreme Court

177 S.W.2d 190

206 Ark. 726

Davis v. State

No. 4340

Supreme Court of Arkansas

January 31, 1944

Appeal from Crittenden Circuit Court; Zal B. Harrison, Judge.

Affirmed.

K T. Sutton, for appellant.

Robert L. Bobrick, Ernest Eleischman, Thurgood Marshall Milton R. Konvitz, Edward R. Dudley, William H. Hastie and Leon A. Ransom, amici curiae.

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

OPINION

Knox, J.

Appellant was charged with the crime of assault with intent to kill, allegedly committed by shooting one Harold Weaver. Trial resulted in a verdict of guilty and punishment was fixed at imprisonment in the penitentiary for a period of 10 years.

The motion for new trial sets out eight assignments of error, the first four of which are the usual stereotype declarations that the verdict is contrary to the law and the evidence. The other assignments are: (5) the verdict was excessive; (6) the jury was prejudiced; (7) the evidence was insufficient; and (8) "that the defendant was in his home attending to his own business and had every reason to believe that his house was about to be burglarized and that he and his family were in danger of great bodily harm or loss of life and that he had a right to defend himself and his family and home."

The shooting occurred shortly after dark on the night of March 22, 1943, at appellant's home, located about one-half mile west of the little town of Edmondson, Crittenden county, Arkansas, of which town the victim of the assault was marshal, and where he and his wife operated a store, and Mrs. Weaver also acted as postmistress.

Late in the afternoon of that day deputy sheriffs Dixon and Holland came into the community for the purpose of apprehending and arresting one Eddie Mayberry on a charge of larceny. Acting upon information that Mayberry was hiding or being hidden in a house near Edmondson, the location thereof and the name of the family living therein being unknown, they decided to make a search of all of the houses in the neighborhood, and, since Weaver was familiar with the location of the different houses and knew the occupants thereof, and the best method of reaching such places of abode, they called upon him to assist them in making the search.

The three officers had searched all of the houses in the neighborhood except the house of Tee Davis, the appellant. The last house searched by them was that of Will Gilyard. Appellant lived about 200 yards south of Will Gilyard's place. There was a swamp or muddy slough between Gilyard's place and appellant's home. A railroad ran north and south along the east side of the Gilyard home and the Davis home. Because Weaver had on boots he could and did cross the slough going to the Davis home, but the other officers wearing only shoes found it necessary to first go east to the high ground furnished by the railroad dump and thence back west to the appellant's home. Officer Weaver reached appellant's house sooner than the other officers, and according to his testimony began rapping on appellant's door with his knuckles. The witness testified: "He (appellant) asked who it was and I told him, this is Mr. Weaver at Edmondson. I told him we were looking for Mayberry and I wanted him to open the door and let me look. He said, I asked who you are and I told him again and I probably waited two or three minutes and he didn't come to the door. I thought he was probably trying to get ready to come to the door and he didn't answer and I was knocking on the door and had a flashlight in my right hand. . . . and he cut loose with a shotgun and shot it out of my hand and he shot me in the knuckles and my hunting coat has probably 15 shot in that." The witness testified that he was standing to the side of the door and that his body was out of the range; that after appellant had fired the first shot he, the witness, pulled out his pistol and fired one shot and that appellant then fired a second shot, and that he, witness, ran to the ditch bank and got behind it for protection, and witness thereupon fired two shots from that position; that officers Dixon and Holland rushed up and Dixon called to appellant "to put his gun down and stop shooting, this was the law and to open the door"; that the door was thereupon opened and appellant was standing there with his gun in his hand. Appellant's version of the occurrence is as follows: "A. When Mr. Weaver came to my house on that night, Mr. Weaver come up on the porch and he kicked on the door with his foot, gentlemen, with his foot, and the bottom of his foot, and he bust the door from the cross-bar on the door to the bottom. He kicked the door and said, 'You God damn black son-of-a-bitch, open this door,' and I said, 'What do you want?' and he said, 'Open this door and open it quick,' and when he kicked that frightened me and I hit again the trunk and I fell and when I fell I got my shotgun and turned back and shot it off." Other quotations from appellant's testimony will be hereinafter set out.

Appellant's wife testified in his behalf, but she fails to corroborate his statements as to the abusive language or the kicking on the door. Her testimony is to the effect that the first she heard was Weaver saying open the door; that he didn't tell his name and that her husband asked him what he wanted and that she failed to hear him tell what he wanted and then the shooting occurred.

Deputy sheriff Dixon testified that he was not close enough to hear all of the conversation, but that he did hear the prosecuting witness tell appellant he was Mr. Weaver and that in a few seconds thereafter the shotgun was fired. Officer Holland testified that before the shots were fired and while he and Mr. Dixon were going up the railroad he heard officer Weaver call the appellant and say, "Tee, this is Mr. Weaver; come to the door, I want to ask you something." Officer Dixon testified that after they had gone in the house and taken the gun from appellant he examined the door to see where the shots had gone through and that there was no crack through the door caused from kicking it or otherwise.

Among other instructions given at the trial were instructions 12 and 13, in which instructions the trial court charged the jury as follows: No. 12. "The defendant contends that he fired the shot in defense of his home or place of residence. Section 2998 of Pope's Digest of the statutes of Arkansas provides: 'Every man's house or place of residence shall be deemed and adjudged in law as his castle.' And § 2999 provides that a manifest attempt and endeavor in a violent, riotous and tumultuous manner to enter the habitation of another for the purpose of assault or offering personal violence to any person dwelling or being therein shall be justification of homicide. A bare fear of those offenses, to prevent which the assault is alleged to have been committed, shall not be sufficient to justify the assault. It must appear that the circumstances were sufficient to excite the fears of a reasonable person, and that the party committing the assault really acted under their influence and not in a spirit of revenge." No. 13. "Therefore, if you find from the evidence in this case that the defendant made the assault acting in good faith and as a reasonable person under the apprehension that his home or residence was about to be entered by some person for the purpose of committing burglary or robbery or for the purpose of assaulting or offering personal violence to any person dwelling therein, and that he fired the shots under that belief, acting in good faith and as a reasonable person, then he would not be guilty of any crime and your verdict should be not guilty. . . ."

Appellant's counsel concede that the instructions above quoted properly declare the law with respect to the rights of a person to defend his habitation, but they insist that there is no substantial evidence in the record from which the jury could have...