Deatherage v. State

• Decision Date: 27 September 1937
• Docket Number: Crim. 4050
• Parties: DEATHERAGE v. STATE
• Court: Arkansas Supreme Court

108 S.W.2d 904

194 Ark. 513

DEATHERAGE v. STATE

Crim. 4050

Supreme Court of Arkansas

September 27, 1937

Appeal from Baxter Circuit Court; John L. Bledsoe, Judge; affirmed.

Judgment affirmed.

H. A Northcutt and Oscar E. Ellis, for appellant.

Jack Holt, Attorney General, and John P. Streepey, Assistant, for appellee.

OPINION

BUTLER, J.

This proceeding was instituted by a charge of murder in the first degree contained in an information filed by the prosecuting attorney of the Baxter circuit court under authority of Amendment No. 22 to the Constitution of Arkansas and act No 160 of the Acts of 1937 in aid thereof. At the trial the defense offered was that the appellant was an officer, acting at the time of the killing in a criminal case, and that he had one Cunningham in custody, who there and then assaulted and resisted him, and that while Cunningham was in the commission of such acts appellant shot and killed him in his necessary self-defense. Appellant was convicted of the crime of involuntary manslaughter.

The errors assigned and argued for reversal will be considered in the order presented by appellant's counsel in their brief.

The first assignment of error relates to the testimony of J. J. McCarthy who was a witness on behalf of the state. At the trial, articles of clothing, purported to have been worn by the deceased at the time he was killed, were introduced before the jury by the sheriff of Baxter county, who identified the same as clothing he had procured from the undertaker's establishment after it had been removed from the body. This clothing was sent by the sheriff through the mails to the Bureau of Investigation of the Department of Justice in Washington, D. C. After a time it was returned by the same means to the sheriff and by him introduced as the same clothing which he had transmitted to Washington. The witness, McCarthy, testified that he was employed by the Federal Bureau of Investigation and that he received some clothing from the sheriff of Baxter county which he examined; that he found certain holes in the clothing. The witness qualified as a chemist and expert in firearms and stated that these holes were bullet holes and, from the condition of the clothing and some discolorations which he observed and examined, he concluded these were powder marks and that the holes were the points of entrance of the bullets. Objections were made to the introduction of this testimony and exceptions properly saved to its admission by the trial court. At the conclusion of the examination in chief, counsel for appellant moved to exclude the testimony from the consideration of the jury, which motion was overruled and the exceptions saved.

It is contended that this testimony was inadmissible (a) because there was no proper identification of the clothing as that taken from the body of the deceased, and (b) that it was not shown that the clothing was in the same condition when examined by McCarthy as it was when removed from the body. These specific objections were not made in the trial court, and when counsel was asked by the trial judge if the motion to strike was made for any special reason, none was given save the general objection that "it is incompetent and irrelevant." We deem it unnecessary to discuss the sufficiency of the identification, for if the testimony was erroneously admitted no prejudice resulted to the defendant, the reason being that it related to no issue in the case. The general effect of the testimony is that the slayer was in close proximity to the deceased at the time the fatal shots were fired. The appellant testified that the deceased, immediately before the firing, grasped him by the throat, backed him against a wall and he there and then fired the shots because of the assault and under the belief that he was in imminent peril of receiving great bodily harm or of losing his life, and that the shots were fired in necessary self-defense. The question, then, is why the shots were fired and whether this act on the part of appellant was justified, and not at what distance the shots were fired or on what particular part of the body the wounds were inflicted, there being no dispute as to this. While the testimony of McCarthy may not have been competent, a point we find it unnecessary to decide, we agree with appellant that it was immaterial. We are unable to perceive how it could have helped the case of the state or harmed that of defendant. Accordingly, the case cannot be reversed because of this error. French v. State, 187 Ark. 782, 62 S.W.2d 976.

The second, third and fourth assignments of error are so related that they may be considered together. These are that the trial court erred in refusing to sustain appellant's instruction for a directed verdict, in overruling instruction No. 1 requested by the appellant, and that the evidence was insufficient to sustain the conviction. The undisputed evidence is to the effect that at a time when appellant was a peace officer, he arrested Cunningham while the latter was drunk and disorderly and placed him in the county jail. This appears to have occurred late in the evening or during the night. After Cunningham had been placed in jail, a fire broke out in the jail and the prisoners were brought out until it was extinguished. Then appellant returned Cunningham to the jail and, as he was putting another prisoner back, Cunningham came out again. The appellant again took Cunningham into the jail and while inside and beyond the sight of those on the outside, a commotion was heard by them. Appellant was heard to exclaim, "Quit, quit," and again, "He's choking me to death," and, immediately after the last exclamation, the shots were heard.

One witness testified as to having seen a part of the struggle between appellant and Cunningham and stated that he heard Cunningham say, "I'll burn the damn thing down," at the same time reaching out and grabbing appellant around the neck. After the shooting a shirt collar was found in the jail which was identified as that of the appellant who testified that it had been torn from his shirt in the struggle. After the firing, appellant came out of the jail rubbing his throat, which, however, was found free from bruises, lacerations or other apparent injury when examined by a physician the next morning.

Instruction No. 1, requested by the appellant and refused by the court was to the effect that if the jury found appellant was an officer and had arrested deceased and was committing him to jail or attempting to keep him there after his commitment and was assaulted by the deceased, appellant was justified in killing him. It is argued that it was error of the trial court to have refused this instruction and, further, that as the instruction is based upon undisputed facts, the evidence is not sufficient to sustain the conviction. This contention is based upon the language of § 2376 of Crawford & Moses' Digest which provides: "If an officer, in the execution of his office in a criminal case, having legal process, be resisted and assaulted, he shall be justified in killing the assailant." This section, however, must be considered and construed with the whole of chapter No. 44 of the Revised Statutes, relating to the law of homicide, of which it is a part. As part of this chapter, one of the grounds for justifiable homicide is defined as a...