King v. State

• Decision Date: 15 February 1915
• Docket Number: 186
• Citation: 173 S.W. 852,117 Ark. 82
• Parties: KING v. STATE
• Court: Arkansas Supreme Court

173 S.W. 852

117 Ark. 82

KING v. STATE

No. 186

Supreme Court of Arkansas

February 15, 1915

Appeal from Mississippi Circuit Court, Osceola District; W. J Driver, Judge; reversed.

Judgment reversed, and cause remanded.

J N. Thomason and S. L. Gladish, for appellant.

There was evidence which, if believed by the jury, would have warranted a verdict of a lower degree than murder in the first degree, and the court erred in failing to instruct the jury as to murder in the second degree. Where there is the slightest evidence to warrant an instruction of this nature it is error to refuse to give it, 102 Ark. 186; 91 Ark. 575; 74 Ark. 265; Id. 451; 43 Ark. 289; 109 Ark. 517; 162 U.S. 313; Id. 466.

Wm. L. Moose, Attorney General, and Jno. P. Streepey, Assistant, for appellee.

The evidence is fully sufficient to show that all the elements of murder in the first degree exist in this case, and the failure to instruct as to murder in the second degree was not reversible error. 50 Ark. 506.

HART J. KIRBY, J., dissents.

OPINION

HART, J.

Rice King prosecutes this appeal to reverse a judgment of conviction against him for murder in the first degree, charged to have been committed by shooting Mary Jones witch a pistol. The facts as shown by the State are substantially as follows:

Tom Jones and Mary Jones, his wife, both colored, lived on the farm of H. E. Bowen in Mississippi County. Rice King, also colored, lived in the same neighborhood. On one Tuesday morning in June, 1914, Tom Jones arose early in the morning and discovered that his gate had been left open, and that his hogs and cows had got out. He went in one direction in search of them and directed his two little boys to go in another. Tom Jones, Jr., testified, that Rice King came around from the corner of the barn which was about two hundred feet north of the house, just after his father left, and drew a pistol on Mary Jones, who was at the time out in the yard getting wood. He said that he was just going out of the gate when he saw Rice King draw the pistol; that he then came back to the house, and that Rice King then drew the pistol on him; that he went into the house and got a .22 calibre rifle and pointed it at Rice King, and the latter then went away; that when Rice King drew the pistol on his mother, she threatened to tell his father, and that King said, "Damn Mr Jones and you, too;" that after Rice King went away he went on after the cows and brought them home, and that when he returned, his mother was not about the house anywhere, and that when iris father came in he told him what had happened and about his mother being missing.

Tom Jones, Sr., testified that when his son told him about seeing Rice King around the barn earlier in the morning, he went out there and saw where the weeds had been pushed down as if a scuffle had taken place, and said that there was some blood on the weeds. He then went and told H. E. Bowen, the son of his landlord, about the matter. Bowen came back with him and examined the place back of the barn where the weeds were crushed down, and said that he discovered blood on them. Bowen and Jones then followed a trail which led from there toward the levee and toward a thicket. The dew was yet on the grass, and at intervals along the trail, which had grown up with weeds, they could see the weeds crushed over as if some heavy body had been laid there. They also discovered at times some blood on the weeds. They followed the trail an eighth or a quarter of a mile, and found the body of Mary Jones lying in the edge of the thicket, dead. She had been shot through the breast and had bled internally. There was no evidence of much blood on her body, and, according to the evidence of other witnesses for the State, there were no marks or powder burns on her breast where the bullet entered. She was a brown colored negro woman, and the evidence shows that powder burns would not show on her to the same extent that they would on a white object.

Other evidence for the State tends to show that Rice King had been having sexual intercourse with the deceased for some time, and that he had been warned by the deceased's husband to keep away from his place.

One witness for the State testified that on the Sunday preceding the killing, the defendant, pointing to Mary Jones, told him that his "kidding" woman was about to quit him, and that he was not going to stand for it. This conversation occurred at a church in the neighborhood.

Another witness testified that when the services were ended on that particular day Rice King came up where Mary Jones was, and began "jarring" with her; that she told him to let her alone; that he told her he would "get her;" and that on the following Tuesday he heard of Mary Jones's death.

Other evidence for the State tends to show that on the morning after the killing, the defendant put on a clean shirt and overalls, ran away, and was not captured for several weeks.

One witness stated that he met him on the afternoon of the killing riding a mule, and that he told him how the killing occurred; that he said he and the deceased were playing, and that he was trying to get his gun from her, that she pointed it at him, and told him to get back, that he knocked the gun up, and it went off and shot her. On cross-examination he said that Rice King told him that he was scuffling and trying to get the pistol from Mary Jones, that she told him to get back off her, "kind of bluffing," and drew the pistol on him, that the pistol was cocked, and he was afraid she would shoot him, and he knocked it up and it went off and shot her.

The record shows that when the defendant was first put on trial for this crime, the trial resulted in a hung jury, but that at the same term of the court and the next week after the first trial, the trial was had from which this appeal is taken.

Rice King testified at the first trial, and a member of the petit jury at that trial said that Rice King testified that the killing did not occur at the barn, but that it took place three or four hundred yards from there; that Rice King stated that he was trying to take the pistol away from Mary Jones when the killing occurred; that he grabbed her to take the pistol away from her and that in the scuffle the pistol fired; that he did not say anything about her pointing it at him; that he did not say anything about any bruises being on her arm or back; that he said he did not know how the bruises came on her arm and back, if any were there; that after the shot was fired, she caught hold of him and walked about ten feet or ten steps, and that the deceased went down with her arms around him; that he stepped away from her and then went back and got the pistol; that this occurred near the borrow pits next the levee; that he admitted he was in the habit of going to...