Dow v. State

• Decision Date: 20 January 1906
• Citation: 92 S.W. 28,77 Ark. 464
• Parties: DOW v. STATE
• Court: Arkansas Supreme Court

92 S.W. 28

77 Ark. 464

DOW v. STATE

Supreme Court of Arkansas

January 20, 1906

Appeal from Independence Circuit Court; WILLIAM L. MOOSE, Judge affirmed.

Affirmed.

Dene H Coleman, for appellant.

The fourth instruction was erroneous, in that it was based upon a hypothesis for which there was no foundation in the evidence. 11 Enc. Pl. & Pr. 128; 54 Ark. 338; 8 Ark. 185; 57 Ark. 627; 16 Ark. 655; 36 Ark. 133; 42 Ark. 61; 48 Ark. 130 49 Ark 374; 70 Ark. 443; 71 Ark. 363. The tenth instruction was erroneous. The jury should be instructed to consider all the facts and circumstances tending to establish the question of provocation. 21 Am. & Eng. Enc. Law (2 Ed.), 179; 50 S.W. 381; 4 Tex. 200. In this case the question whether the wife's refusal to return home, or that of her father for her, was or was not sufficient provocation should have been left to the jury. 12 Cox, C. C. 145; 147 Mo. 79. Questions of fact are for the jury. Art. 7, sec. 23, Const.; 21 Ark. 214.

Robert L. Rogers, Attorney General, for appellee.

OPINION

RIDDICK, J.

This is an appeal from a judgment convicting the defendant, John Dow, of murder in the first degree, for killing his wife, Ella Dow, by shooting her.

The facts in brief are that John Dow and his wife, Ella Dow, who were negroes, lived at or near Batesville. The parents of Ella Dow lived near Sulphur Rock, in the same county. Some short while before the killing, Ella Dow had abandoned her husband and returned to the home of her parents.

The witnesses for the State say that on the 4th day of April, Dave Peel, his wife, Priscilla Peel, his young daughter, Viola Peel, a son-in-law, Owen Kennedy, and Ella Dow, his daughter, the wife of defendant, left their home and started toward the depot. They had gone but a short distance when they met the defendant, John Dow. He had with him a shotgun and a Winchester rifle. He asked them where they were going, and they told him. He then said to his wife: "Ella, get your clothes and let's go home." She declined to do so. Some few more words passed when his father-in-law, Dave Peel, said to him: "John you were here yesterday, drawing your knife and making your threats; and if you do it again today, I will have you arrested." The defendant made no reply to this, but said to his wife, "You are not going to live with me any more?" and she said "No." Defendant then threw up his shotgun, and fired at her. He then shot his father-in-law. Both shots took effect, but neither of the parties were killed. His wife, in company with her young sister, ran up the railroad track. Defendant followed them, and his wife, seeing that she could not escape by flight, turned and came towards him with her hands up. He then shot her through the breast with the Winchester rifle, and when she fell to the ground fired another bullet through her head, producing instant death. He then shot at the fifteen-year-old sister. Afterwards he shot himself two or three times, but the wounds were not fatal. He and the other parties, except his wife, recovered.

The defendant testified in his own behalf that he went to Sulphur Rock to go hunting with one Fred Waugh; that Waugh had no gun, and he took the extra gun along for Waugh's use. He met his wife and the other parties. We quote his own words as to what followed: "I said, 'Good morning, wife; do you want to go home this morning?' and before she could say anything Mr. Peel said 'No, by God; she isn't going a step. I am going to take your God damn scalp!' and I said, 'Mr. Peel, I didn't come for any trouble, and don't mean to have any.' He started toward me with his hand in his pocket like he was going to bring out a revolver or some other deadly weapon, and Owen Kennedy caught him, and said, "You are wrong. Suppose some one would take your wife, and keep her. You know white folks would string you up.' And he turned around to me, and said, 'I mean every word I say.' I started back to Sulphur Rock down the road I first came, and he followed behind a short distance. He was very close to me, and I started go around the fence, and the road led up the lane, and I started to turn, and he started to fire. The bullet did not break the hide. That deafened me, and I fell to my knees. I proceeded to try to get up again, and I got a blow on this shoulder. I fell back and caught on my hands, and the next lick I got was a blow right here, and that is all I know about it. I never knew any more after I got that lick."

But this statement of the defendant that Dave Peel, his father-in-law, had made an assault upon him was contradicted by every witness on the part of the State at that time. All of these witnesses testified that the defendant met them armed with a shotgun and rifle, and that Dave Peel had no weapon and made no assault.

The motion for new trial sets out the errors relied on for reversal. Those exceptions, not brought forward in the motion for a new trial, are waived, and will not be noticed.

The first ground set out in the motion for new trial is that the court erred in refusing to give three instructions asked by the defendant. The instructions relate...