Jutson v. State, 4484.

• Citation: 209 S.W.2d 681
• Decision Date: 29 March 1948
• Docket Number: No. 4484.,4484.
• Parties: JUTSON et al. v. STATE.
• Court: Supreme Court of Arkansas

Page 681

209 S.W.2d 681

JUTSON et al. v. STATE.

No. 4484.

Supreme Court of Arkansas.

March 29, 1948.

Appeal from Circuit Court, Sebastian County, Fort Smith District; J. Sam Wood, Judge.

Eddie Jutson and Oma Winters were convicted of an aggravated assault, and they appeal.

Affirmed.

Hugh M. Bland, of Fort Smith, for appellant.

Guy E. Williams, Atty. Gen., and Oscar E. Ellis, Asst. Atty. Gen., for appellee.

MILLWEE, Justice.

Appellants, Eddie Jutson and Oma Winters, were charged by information in the circuit court with the crime of assault with intent to kill, alleged to have been committed upon Halton Rust. On the trial of the case before a jury appellants were convicted of an aggravated assault and their punishment fixed at a fine of $1,000 and imprisonment in the county jail for one year.

Appellant, Oma Winters, is the wife of Charlie Winters who operates a tire shop in the city of Fort Smith, Arkansas. The parties had been separated for some time prior to the transactions involved herein. Halton Rust had been employed at the tire shop for 14 years and resided with his family at North 5th St. in Fort Smith.

Mr. and Mrs. Rust testified that they were sleeping in the rear of their home on the night of August 19, 1947, when they were awakened by appellant, Eddie Jutson, who informed Mr. Rust that Charlie Winters was outside and wanted to see him. Rust dressed and walked with Jutson to a car parked in front of the Rust home. Appellant, Oma Winters, was in the front seat of the car and the back door was open. Jutson told Rust to get in the car and when he refused, Jutson drew a 45 caliber automatic pistol from his pocket and fired four shots at Rust while the latter was "dodging and ducking" and before he grabbed the gun. In the scuffle that ensued, Rust got hold of the gun and fired the remaining three shots in the air and the pistol then dropped to the ground. While Jutson and Rust were wrestling on the ground, appellant, Oma Winters, picked up the gun and struck Rust with it about the head and face. Appellants then got in the car and drove away.

Two witnesses who lived nearby testified about hearing the shooting and of bullets entering their homes. A physician who attended Rust described the wounds on his head and face and a powder burn on his finger.

The mother of Charlie Winters, husband of appellant, Oma Winters, testified that her son was living with her at the time of the difficulty; that shortly before 10 P.M. on the night in question appellant, Eddie Jutson, came to her home and inquired as to the whereabouts of Charlie Winters; that Jutson had a pistol in his hand and she informed him that her son was out of town; and that she saw appellant, Oma Winters, waiting in her car for Jutson when he left the house.

Oma Winters testified that all the household goods were taken from her home on Towson Avenue on the night of August 17 and that she had concluded that her husband and Halton Rust were the guilty parties. The tire shop and the home of her mother-in-law had been searched on warrants sworn out by her, but the property had not been found. She stated that the purpose of the visit to the home of Halton Rust was to ask him about the property.

Both appellants testified that when Jutson and Rust came to Oma Winter's car, Jutson opened the front door and Rust grabbed the pistol which was lying on the front seat. In the struggle that followed between Jutson and Rust for possession of the gun, several shots were fired and Oma Winters finally wrenched the gun from the hand of Rust. They also testified that the first shots were fired by Rust and that neither of them shot at Rust nor struck him with the gun. Jutson admitted that, in response to an inquiry by Rust, he gave a fictitious name and falsely represented to Rust that his employer, Charlie Winters, was in the car and wanted to talk to him. In this connection he testified, "I knew that it wouldn't do, if I told him Mrs. Winters was out there."

Appellants do not urge the insufficiency of the evidence to support the conviction for aggravated assault. However, it is contended that the trial court erred in the admission of incompetent and prejudicial testimony entitling appellants to either a new trial or a material reduction of the punishment, which they insist is excessive.

Over the objections of appellants, the State was permitted to cross-examine appellant, Jutson, concerning his association with Oma Winters prior to the commission of the alleged offense. Jutson testified that he had known the co-defendant about two years and that they had made extended trips to California, Texas and Oklahoma in her automobile prior to August, 1947. It is argued that this evidence was incompetent and resulted in the conviction of appellants for their indiscretions rather than the offense with which they were actually charged.

We think this evidence was competent. This court has repeatedly held that it is proper to interrogate a defendant, or other witness, on cross-examination, touching his recent residence, occupation and associations, as affecting his credibility as a witness. Hollingsworth v. State, 53 Ark....