Lee v. State

• Decision Date: 24 February 1906
• Citation: 93 S.W. 754,78 Ark. 77
• Parties: LEE v. STATE
• Court: Arkansas Supreme Court

93 S.W. 754

78 Ark. 77

LEE v. STATE

Supreme Court of Arkansas

February 24, 1906

Appeal from Polk Circuit Court; S. A. Downs, Special Judge affirmed.

Judgment affirmed.

Hal. L Norwood and Scott & Head, for appellant.

It was error to exclude testimony to prove that defendant had gone to Wilton to obtain evidence to put deceased under a peace bond. It was competent as tending to prove defendant's motive. 49 Iowa 328. Past threats, hostile acts and circumstances tending to show malice on the part of deceased toward the defendant are admissible for the purpose of showing apprehensions of personal danger from the deceased. 17 Ga. 465; 11 Tex.App. 289; 11 Ind. 23; 56 Cal. 251; 20 So 232; 68 Ala. 156; 71 Ala. 351. Threats are admissible for the purpose of showing the motives of both parties. 29 Ark. 248; 69 Ark. 149.

The instruction asked by defendant, defining what the jury might consider in determining whether it appeared to defendant that his life was in danger, from the threats and harsh treatment of deceased and his going continuously armed, should have been given. 10 So. 650; 81 S.W. 387; 61 S.W. 123; 55 S.W. 282; 89 S.W. 840. It was error not to administer to the bailiff in charge of the jury the statutory oath. 16 N.E. 81; 44 Ill. 452; 58 N.E. 620; 68 Ark. 401.

Robert L. Rogers, Attorney General, for appellee.

The defendant, being present and failing to object to the omission to repeat the admonition to the jury, can not raise the question now. 56 Ark. 518. The jury were not permitted to separate, hence 68 Ark. 401 does not apply.

OPINION

MCCULLOCH, J.

A judgment of conviction against appellant in a former trial was reversed by this court (Lee v. State, 72 Ark. 436, 81 S.W. 385), and upon another trial he was again convicted of the crime of manslaughter and sentenced to a term of three years in the penitentiary. He again appeals to this court.

The facts, briefly stated, are about as follows: H. McGough, the person killed, was a constable residing at Wilton, Little River County, where the killing occurred. Appellant lived at Richmond in Little River County. Ill feeling is shown to have existed between the parties, growing out of certain accusations against appellant of cattle-stealing and alleged mistreatment of appellant by McGough while in custody of the latter as constable.

On the day on which the killing occurred appellant came to Wilton for the ostensible purpose of procuring subpoenas for witnesses in the trial of the larceny cases against him, and also to procure evidence to put McGough under bond to keep the peace. Appellant was in the store of Smith & Coats, when McGough came into the store approaching appellant, and the latter drew his pistol and shot McGough, killing him instantly. There is conflict in the testimony as to what occurred between the two men. The evidence on the part of the State tended to show that McGough came into the store and accosted appellant in friendly terms as he approached him, and without any hostile demonstration, and that appellant drew his pistol and shot him without justification. The State's evidence tended to show that McGough was unarmed at the time; that he was in his shirt sleeves, and had left his coat and pistol in a saloon near by, and that no pistol was found upon or near his body after he was killed. Appellant testified that he went into the store of Smith & Coats, and, while waiting for a clerk to find some cartridges for his pistol, heard a voice behind him saying "Hello, Jim!" or "Here, Jim!" and, looking around, saw McGough approaching with his hat in his left hand when he (appellant) "whirled, and turned around, and drew my pistol quick, and fired. As he drew his pistol, I drew mine." He testified that McGough had a pistol in his hip pocket, and introduced other witnesses whose testimony tended to show that a 38-caliber pistol was found near the body of McGough soon after he was killed. He also introduced testimony to the effect that McGough's reputation was that of a turbulent, dangerous, over-bearing man, and one witness testified that he told appellant that "McGough told me that his way of attacking a man was to raise the racket, and, when the man started onto him, to slap him in the face with his hat, thereby make him drop his head, then shoot him."

Much testimony was introduced on both sides as to the character of McGough, the former occurrences between the two men, and the circumstances attending the killing, and as to whether or not McGough was armed.

The State was permitted to show by a witness that immediately before the killing--just before McGough went into the store where he was killed--he said to the witness that he (McGough) stopped in the saloon, took off his pistol and coat, and hung them up. Appellant excepted, and assigns this ruling of the court as error. We think this statement was incompetent, and should not have been admitted, but we can see no prejudice resulting from it. It is undisputed that McGough had left his coat and pistol (a large one worn in a belt or scabbard) in the saloon near by, and that he was in his...