Hornsby v. State

• Decision Date: 31 March 1924
• Docket Number: 269
• Parties: HORNSBY v. STATE
• Court: Arkansas Supreme Court

260 S.W. 41

163 Ark. 396

HORNSBY v. STATE

No. 269

Supreme Court of Arkansas

March 31, 1924

Appeal from Monroe Circuit Court; George W. Clark, Judge; affirmed.

Judgment affirmed.

Bogle & Sharp, for appellant.

1. The evidence does not warrant a conviction of murder in the first degree. Under the state of facts presented in the record, the State has failed to prove that premeditation and deliberation essential to a conviction of murder in the first degree. 119 Ark. 85; 36 Ark. 127; 51 Ark. 189; 60 Ark. 564; 68 Ark. 572; 82 Ark. 97; 92 Ark. 120; 100 Ark. 330.

2. It was error to permit evidence to be introduced that, a day or two after the killing, blood was found on one of the beds and on a quilt found in one corner of the room, and to permit the blood-stained clothing of the deceased to be exhibited to the jury. There was no connection between these things and the facts which the State relied on for a conviction, and this evidence was calculated only to excite the minds and inflame the passions of the jury. 39 L. R. A. 719. It was manifest error to permit the introduction in evidence of letters written after the defendant had been placed in jail. They were written too long after the killing to be admitted as a part of the res gestae. Moreover, they neither in fact nor by innuendo refer to, or relate to, the crime with which the defendant was charged. 3 Wigmore, Evidence, § 2113; 90 N.E. 48; 106 N.E. 78; L. R. A., 1915D, 236; Ann Cases, 1915D, 162; 68 So. 934; 141 S.W. 216; 16 C. J. 543.

3. Instruction E given by the court was erroneous in that it ignored the principle that, regardless of who might have brought on the difficulty, the defendant was not required to retreat, but could stand his ground, and, if need be, kill his assailant in order to save his own life or prevent great bodily harm. 73 Ark. 399; 67 Ark. 603. Instructions F and G which discussed the facts in the case as they appeared to the court, were erroneous because argumentative and contradictory of other instructions, and objectionable because too long to be clearly understood. 43 Ark. 289; 45 Ark. 165; 49 Ark. 165; 55 Ark. 244; 125 Ark. 260; 130 Ark. 234; 85 Ark. 48; 89 Ark 213; 39 Ark. 360; 54 Ark. 588.

J. S. Utley, Attorney General, John L. Carter, Wm. T. Hammock, Darden Moose and J. S. Abercrombie, Assistants, for appellee.

1. The evidence, the facts and circumstances in proof, were sufficient to justify the jury in returning a verdict of murder in the first degree; to justify them in inferring the killing, and that defendant had deliberately planned to kill deceased, or to engage him in a quarrel in order to have an excuse for killing him. It shows also that deceased was unarmed, and attempting to escape from the house when he was shot down. There is present all the essential elements of murder in the first degree. 92 Ark. 120; 51 Ark. 189; 68 Ark. 572, 576; 119 Ark. 85, 92; 133 Ark. 321, 324; 101 Ark. 443, 448.

2. No objection was made to the testimony to the effect that, the next morning after the killing, blood, which appeared to be damp and fresh, was found on the bed-clothing, at the time it was given, and its exclusion on objection being made thereafter, was discretionary. However, it was competent for the purpose of throwing light on the issue. 156 Ark. 464; 78 Ark. 285; 103 Ark. 166. Objection to the introduction of the bloody overalls worn by the deceased was not incorporated in the motion for new trial, and cannot be urged here, but must be considered as waived. 91 Ark. 441, 121 S.W. 732; 150 Ark. 387. The letters written by appellant to the wife of the deceased were competent as tending to show a motive for the killing, and to shed light upon the relationship of the parties prior to the killing. 13 R. C. L. 747, § 51; 71 Ark. 112, 117; 149 Ark. 642, 648.

3. Instruction E conforms to C. & M. Digest, § 2375, and correctly declares the law of self-defense. 95 Ark. 428; 109 Ark. 378, 382; 116 Ark. 17, syl. 4; 120 Ark. 350. The instructions requested by the appellant presenting his theory of the case, from the standpoint of self-defense, were not improperly refused, because the court had correctly covered the law of self-defense in the above instruction and in its instructions D and G. 130 Ark. 204, 209. Instructions F and G were not so long as to affect their clearness or correctness. Neither were they argumentative, or, at any rate, not so much so as to result in prejudice to the appellant. 14 R. C. L. 775, § 42. Appellant should have made specific objection if he considered instruction F to be misleading. 110 Ark. 403, syl. 6.

OPINION

WOOD, J.

The appellant rented a small farm in Monroe County, on which he and his wife and children resided until the summer of 1923, when his wife died, and appellant and his children went to live with his mother, who resided near by. Walter Fells, who was twenty years old, and his wife, who was sixteen, lived on a farm about one and three-quarter miles from the appellant. After appellant's wife died he entered into a contract with Fells, by which Fells and his wife were to move into the house on the place where appellant and his wife lived prior to her death, to assist appellant in gathering the crop. Soon after Fells and his wife moved on the place, appellant and his children moved back into the house with them. Mrs. Fells was to do the cooking and take care of appellant's children. Shortly after appellant became acquainted with Mrs. Fells, and before she and her husband had moved into appellant's house, he had made love to her. He told her that he loved her from the first time he saw her.

Without setting out the testimony in detail, suffice it to say it tended to show that there was improper intimacy between appellant and Mrs. Fells even before the Fells moved into appellant's house, and that it continued up to the time the appellant killed Fells. Appellant had told her that, if she would be his, he would buy her everything she wanted. He had ordered her some clothes about a week before he killed Fells. They had talked about leaving together, on the Sunday before the killing occurred. Fells and his wife and the appellant had all been living in the house together about a week, and appellant was continuing his love- making to Mrs. Fells. Mrs. Fells and her husband had had some trouble; he told her that he would cut up the clothes appellant bought for her, and appellant said that he wouldn't. This was about a week before the killing. Appellant thereupon loaded his guns. One was a nineteen-inch-barrel gun and the other was a twelve-gauge. On the night of the killing, after supper, Fells went to bed, and appellant and Mrs. Fells were sitting across from each other at a small table, talking. Appellant wrote something on a mail order blank, and handed it across to Mrs. Fells. Fells observed it, and got up and put on his clothes and walked over to the table where they were sitting. Mrs. Fells turned the paper over and began drawing on it. She then tore it, and put a part of it in her mouth. Fells thereupon slapped her, and told her to go to bed. She then started towards her bed and appellant towards his, and Fells walked out on the front porch. When he came back into the room, Mrs. Fells was standing by her bed and appellant was sitting on a trunk at the foot of his bed, unlacing his shoes. As Fells came into the room he was saying something, but neither appellant nor Mrs. Fells understood what it was. Appellant then inquired of Fells whether he thought that appellant was the cause of the trouble between him and his wife, and Fells replied, "By G--, you wrote that," and appellant said, "Well, you G-- d-- son of a b--, grab your gun." Appellant reached back and got his gun, and Fells ran towards the middle door and Mrs. Fells ran toward the front door, and as Fells opened the door it threw him towards the appellant, and appellant shot him in the stomach. Mrs. Fells testified that she did not see anything in her husband's hand when he re-entered the room. She described the room and the situation of the parties at the time of the shooting. Appellant laid Fells down. She ran up and asked him to let her have the gun, and told him that he ought not to have done that. He replied, "Did you want me to get killed?"

Wes Bryant, a near neighbor, who heard Mrs. Fells scream, ran over and arrived about the time Fells died. When he arrived, appellant was holding Fells' head with his right hand and had his left hand over Fells' stomach. Appellant told witness to go for a doctor, but witness replied that it was no use. On witness' first trip he did not see anything of a knife. He went home, and returned soon thereafter, and when he got back the second time he saw a knife sticking in the floor, where the appellant called his attention to it. Appellant then exhibited to witness a place on his arm which looked like some one had grabbed him, and had the prints of finger nails as if some one had scratched him, and appellant told witness that Fells had struck at him with a knife, and that he had to shoot him. He said to witness that, if he could not do him any good not to do him any harm, and asked Mrs. Fells if she could tell it like it was, and she replied that, when Fells started toward the door she thought he was trying to run, and appellant replied, "No, he aimed to shut the door and whirl on me."

It was shown that Fells was shot in the center of the stomach with shot that looked like buckshot. The shot ranged down, and was at close range. The State, without objection of appellant being offered at the time, introduced evidence to the effect that, on the morning after the killing, there were blood stains, yet damp, on the sheets and quilts, and permitted the State to introduce the clothing that Fells had on at the time h...