Johnson v. State

• Decision Date: 04 October 1915
• Docket Number: (No. 142.)
• Parties: JOHNSON v. STATE.
• Court: Arkansas Supreme Court

179 S.W. 361

JOHNSON v. STATE.

(No. 142.)

Supreme Court of Arkansas.

October 4, 1915.

Appeal from Circuit Court, Cleveland County; Turner Butler, Judge.

Kenneth Johnson was convicted of murder in the second degree, and he appeals. Affirmed.

On the night of April 22, 1914, Frank Armstrong was killed by appellant in Cleveland county, Ark. Armstrong, after a hard day's work, being very tired, had retired early. Carroll Hopson had heard that Armstrong had been making some derogatory remarks about his (Hopson's) wife. Hopson had married the appellant's sister. Hopson, in company with the appellant, Bud Miller, and Coot Childers, on the night of the killing, started to the home of Armstrong for the purpose of seeing him in regard to what he was reported to have said concerning Mrs. Hopson. When they got within 100 yards of the house all stopped, except Carroll Hopson. He went on up to Armstrong's house. He called to Armstrong, stating that he wanted to see him, whereupon Armstrong arose and dressed and went with Hopson to where others of the party were. This was about 9 o'clock at night. About two hours later Armstrong was found dead in the road near his home. His body was found lying near a thicket in a dense part of the woods. His left arm was stabbed, all the muscle on same being cut, and the arm was broken above the elbow. It was a smooth break. There was another wound also on the left arm, and a wound on the left side, and another wound on the ninth rib. The body was badly cut, and was covered with blood.

There was testimony to the effect that on the day after the killing appellant said that he went over to have a talk with Armstrong about remarks that Armstrong had been making about his (appellant's) people. He said: "I did not hit him but once." Again he said: "I thought that I hit him only once or twice." Appellant made further statements to the effect that Armstrong had "knifed" him, and that he had "knifed" Armstrong.

There was testimony on behalf of appellant tending to prove that he and Armstrong were good friends, and that they were neighbors; that Carroll Hopson, appellant's brother-in-law, told appellant on the night of the killing that he was going to see Armstrong to get him to quit talking about his wife; that appellant told Hopson that he would go with him, and did go; that he and Hopson and Miller and Childers went up near Armstrong's house, and when Carroll Hopson and Armstrong returned to where appellant and the others were waiting Hopson accused Armstrong of making statements about his wife. Armstrong denied having made the statements attributed to him, and there was some controversy over the matter, in which the appellant participated, and during the conversation appellant said, "Since you admit talking about my people, I want you to quit tagging after my children when you are passing my house, and I don't want you to come on my place any more." To this Armstrong replied, "You God damned little devil, you must think I am afraid of you," and started at appellant, whereupon the fight ensued, and shortly afterwards Armstrong said, "Take him off, boys; he has cut me to pieces." Appellant then turned and walked away; said he was hurt and was going home. Appellant sustained a severe knife wound in his shoulder, which was about three inches in width under the surface, and as a result of which appellant was confined to his bed several days. Appellant stated that he did not go over there with murder in his heart or to abuse Armstrong, and was going to let the matter pass if Armstrong would quit talking about his sister. He thought because they were members of the same Woodmen lodge he could get him to quit talking the way he had been doing. An open knife was found sticking in the ground near Armstrong's head. The knife was a large-sized barlow.

The indictment charged appellant with the crime of murder in the first degree in the killing of Frank Armstrong. No objection is urged to the sufficiency of the indictment. Appellant was convicted of the crime of murder in the second degree, and was sentenced to 21 years in the state penitentiary. He duly prosecutes this appeal. Other facts will be stated in the opinion as we discuss the assignments of error which appellant urges as grounds for a reversal of the judgment.

H. S. Powell, of Camden, and Paul G. Matlock, of Fordyce, for appellant. Wm. L. Moose, Atty. Gen., and John P. Streepey, Asst. Atty. Gen., for the State.

WOOD, J. (after stating the facts as above).

I. The appellant contends that the court erred in not instructing the jury, at the close of the evidence on behalf of the state, to return a verdict of not guilty. The court did not err in this ruling. The testimony on behalf of the state tended to show that Armstrong was killed on the night of April 22, 1914, and that he was killed by a knife in the hands of some third party. The identity of the appellant was established by his admission to the effect that on that night he had cut Armstrong with a knife. The circumstances adduced on the part of the state tending to show that Armstrong, after he had retired for the night, was called from his bed and requested to go to the place where he was killed, and the manner in which he was killed, as indicated by the numerous wounds he had received, were sufficient of themselves to warrant the jury in finding that there was an unlawful killing. The corpus delicti being thus established, and appellant having admitted that he was the one who "knifed" Armstrong, it then devolved upon him to prove circumstances of mitigation that justified or excused the homicide, there being no proof on the part of the state which made it sufficiently manifest that the offense committed only amounted to manslaughter, or that the accused was justified or excused in committing the homicide. Kirby's Digest, § 1765; Brock v. State, 101 Ark. 147-154, 141 S. W. 756.

II. Carroll Hopson, a witness on behalf of appellant, was asked on cross-examination, this question, "Do you know a negro named John Mosely?" and answered, "Yes." He was then asked, "What did you want with his pistol the day before the killing?" and answered, "I didn't have it." He further testified, in answer to questions, that Mosely did not get any pistol from him the day after the killing; that he did not have Mosely's pistol a day or two before the killing, nor any time that year. John Mosely testified, in rebuttal, that on the night that Armstrong was killed Carroll Hopson had his (Mosely's) pistol; that he brought it home the next morning. The appellant moved the court to exclude the testimony of John Mosely. The court overruled the motion. The court did not err in this ruling. The testimony of Mosely was competent as original evidence. It tended to establish the fact that on the night of the killing Hopson was armed with a pistol. Now, the jury were warranted in inferring that appellant and Hopson, on the night of the killing, had entered into a conspiracy to see Armstrong, and, in case he did not make satisfactory explanation in regard to the alleged defamatory remarks attributed to him concerning the wife of Carroll Hopson, to do him personal violence.

Hopson testified on cross-examination:

"I intended to go to see deceased, and if he made it right about talking about my wife I intended to drop it, and if he had not made it right I had not made up my mind as to what I was going to do."

Hopson further testified:

"Deceased had been doing some talking, and we wanted to see him about it."

And again:

"I knew the fight was about what deceased had said about my wife."

The appellant himself testified:

"Hopson came to my house that night and brought his wife and told me that he was going over to see deceased to get him to quit talking about his wife. I told him that I would go with him."

Although witness Hopson and the appellant, in their testimony, say that on the night of the killing they were on good terms with deceased, and disclaim any ill will towards him, and deny any intention of doing him any violence on the occasion, the above testimony, together with other facts and circumstances in evidence, were sufficient to warrant the jury in finding otherwise, and that their visit to the home of Armstrong on that occasion was not a friendly one. Therefore the court was warranted in admitting any evidence to prove that on the night of the killing Hopson had a pistol. The testimony was not concerning a collateral issue, but was relevant to the issue being tried, and therefore competent either on direct or on cross examination.

III. The court, at the request of the state, gave instruction No. 5, as follows:

"The killing having been proven, the burden of proving circumstances of mitigation that justify or excuse the homicide shall devolve upon the accused, unless by proof upon the part of the prosecution it is sufficiently manifest that the offense amounted only to manslaughter, or that the accused was justified or excused in committing the homicide."

The above is taken from Kirby's Digest, § 1765. Speaking of an instruction in this language in Cogburn v. State, 76 Ark. 110, 112, 88 S. W. 822, 823, we said:

"This section of the statute, it will be seen, is a rule of law to be applied when the killing has been proved, and there is nothing shown to justify or excuse said act."

The court in the above case declared that there was no error in the giving of the above instruction. By reference to the facts stated in the opinion it will be seen that several witnesses for the state in that case testified that at the time of the shooting the deceased was making no hostile demonstration whatever toward the appellant, Cogburn, and several witnesses testified on behalf of the defendant that the deceased and another in company with him were making hostile demonstrations...