Easley v. State

• Decision Date: 14 July 1913
• Citation: 159 S.W. 36,109 Ark. 130
• Parties: EASLEY v. STATE
• Court: Arkansas Supreme Court

159 S.W. 36

109 Ark. 130

EASLEY v. STATE

Supreme Court of Arkansas

July 14, 1913

Appeal from Lawrence Circuit Court, Eastern District; R. E. Jeffery Judge; affirmed.

Judgment affirmed.

O. C Blackford and W. P. Smith, for appellant.

Wm. L Moose, Attorney General, and Jno. P. Streepey, Assistant, for appellee; L. B. Poindexter and H. L. Ponder, of counsel.

OPINION

HART, J.

Lon Easley was indicted for the crime of murder in the first degree, charged to have been committed by shooting Claibe Pinnell in Lawrence County, Arkansas. He was tried at the same term of the court and convicted of the crime of murder in the second degree, his punishment being fixed by the jury at twenty-one years in the State penitentiary. From the judgment of conviction he has duly prosecuted an appeal to this court.

A physician who examined the body of the deceased, Claibe Pinnell, after he was shot, testified that he found a hole about one inch below the eye on the left cheek where the bullet had entered. That he made an opening in the back of his head and found the bullet. That the bullet had punctured the top layer of his skull and was lodged in the muscles of his neck. That it passed the base of the brain and cut the spinal cord in two where it went out and caused instant death. Another witness for the State testified that he did not see the shooting but heard the shot fired; that just after the shooting he saw the defendant, Easley, and asked him what was the trouble and that Easley replied that he had just killed Claibe Pinnell. That he afterwards saw Claibe Pinnell lying on the ground dead, in the town of Hoxie in Lawrence County. The State here rested. Lon Easley, the defendant, for himself, testified as follows:

Red Dempsey and Claibe Pinnell were together in the town of Walnut Ridge on the night that I killed Pinnell. They were both drinking and went from Walnut Ridge to Hoxie. I was town marshal and heard Red Dempsey using profane language in front of a store house. I arrested him, and, putting my left arm through Dempsey's right arm, started off with him. Claibe Pinnell came running up behind us and said "wait." When he got up to us he said, "You won't lock this man up, nor no other man." Just as he said this he drew his pistol and fired. I saw the pistol coming right up in my face and struck it up with Red Dempsey's arm. Pinnell fired right by my face and my face was powder-burned all over. He kept on firing, and the next shot I think was the shot that hit Dempsey. I ran into the street and Dempsey ran the other way. Pinnell kept shooting at me, and I finally got my pistol out and commenced shooting at him. I did so because he was still shooting at me and I thought he was trying to kill me. I had a thirty-eight calibre Smith & Wesson pistol. Pinnell shot at me with a thirty-two calibre pistol. Pinnell and I were good friends. When Pinnell fired at me I swung Dempsey around and he fired again and hit Dempsey. Dempsey was not quite as close as Pinnell when he was shot as I was when Pinnell shot at me.

Several other witnesses for the defendant testified that they heard the shooting and that two or three shots from the smaller pistol were fired first, and that they then heard the reports from the larger pistol. The physician who extracted the bullet from the body of Red Dempsey said that he gave the bullet to Red Dempsey and that he thought it was a bullet from a thirty-two calibre pistol. Several other witnesses for the defendant testified that Claibe Pinnell and Red Dempsey were drinking and conducting themselves in a boisterous manner on the night that Pinnell was killed. That Pinnell's reputation in that community where he had lived all his life was that of being a dangerous and turbulent man, especially when he was drinking.

In rebuttal, Red Dempsey was introduced as a witness in behalf of the State. In response to the question, "Did Claibe Pinnell make the statement to Lon Easley there at that time (referring to the time he was killed) he could not lock you or anybody else up?" and answered, "He did." Later on, in response to the questions asked by the prosecuting attorney, he stated that Pinnell came up to where he was in custody of the defendant and told the defendant that he (Dempsey) had not done anything, that the street car was coming and that if the defendant would turn him (Dempsey) loose they would take the car and go home. He also stated that the only thing Pinnell said to the defendant was that if he would turn him (Dempsey) loose they would catch the car and go back to Walnut Ridge. He also said that Pinnell did not shoot at the defendant until after the defendant had fired at him; that the defendant shot two or three times before Pinnell began firing. That he had stepped aside a few paces and during the shooting said to the defendant, "My God, you have killed him; don't shoot him any more."

The State also introduced witnesses who testified that the reputation of the defendant for truth and morality in the community was bad. One witness testified that the defendant came in to his restaurant shortly after the killing and said, "I have got the damn son-of-a-bitch, but I don't know whether he shot me or not," or something like that. Another witness testified that on the night of the killing the defendant was in Walnut Ridge and he heard him say (referring to Pinnell and Dempsey) that if they went down to Hoxie that night they would never get back alive. It was also proved by the State that the defendant had been several times convicted of the illegal sale of whiskey.

Other testimony was introduced by the defendant tending to corroborate his statement and to contradict the testimony of Red Dempsey.

It is first earnestly insisted by counsel for the defendant that the evidence is not sufficient to warrant the verdict. We have not attempted to set out the evidence in detail but believe that we have given the substance of it as favorably to the defendant as the record will warrant. It is not our duty to pass upon the credibility of the witnesses, and even though we might think that the preponderance of the evidence was greatly in favor of the defendant it is our duty to uphold the verdict if there is any evidence of a substantial character to support it. In this view of the case, we do not deem it necessary to enter into an extended discussion of the evidence. It is sufficient to say that if the evidence introduced by the State, which we have recited above, was believed by the jury, it was sufficient to show that the defendant was actuated by malice when he killed the deceased and the jury were warranted in finding him guilty of murder in the second degree and fixing his punishment at twenty-one years in the penitentiary.

Counsel for defendant next contend that "the court erred in placing him upon trial for murder in the first degree after the State had rested its case without proving premeditation and deliberation, and also that the court erred in instructing the jury as to murder in the first degree, over the objection of the defendant at the time." It is well settled that this court will only reverse a judgment for errors that are prejudicial to the rights of a defendant. As the defendant was only convicted of murder in the second degree, it is plain, whether the instructions on murder in the first degree were erroneous or not, they did him no harm. Kilgore v. State, 73 Ark. 280, 83 S.W. 928; Rogers v. State, 60 Ark. 76, 29 S.W. 894. The order of the admission of the testimony was a matter within the discretion of the trial court and the judgment will not be reversed unless an abuse of that discretion was shown. As we have already seen, the defendant was not convicted of murder in the first degree and the action of the court could not have resulted in any prejudice to him. Moreover, the record shows that the defendant saved no...