McCown v. State

• Decision Date: 10 July 1916
• Docket Number: (No. 139.)
• Parties: McCOWN v. STATE.
• Court: Arkansas Supreme Court

188 S.W. 547

McCOWN v. STATE.

(No. 139.)

Supreme Court of Arkansas.

July 10, 1916.

Appeal from Circuit Court, Arkansas County; Thos. C. Trimble, Judge.

Joe T. McCown was convicted of murder in the first degree, and he appeals. Affirmed.

Joe T. McCown, pro se. Wallace Davis, Atty. Gen., and Hamilton Moses, Asst. Atty. Gen., for the State.

SMITH, J.

Appellant was indicted for the crime of murder in the first degree alleged to have been committed by shooting one Joe Gordon, and upon his trial was convicted upon that charge, and has appealed from the judgment of the court sentencing him to death. A number of questions are raised by appellant, but we find only three of them sufficiently important to require discussion.

It is first insisted that the court erred in overruling appellant's motion for a change of venue, the petition for which was supported by four affidavits. These affidavits were in proper form, but upon the examination of the affiants in open court as to the basis of their opinions and the extent of their information in regard to the alleged prejudice against appellant which might prevent him from obtaining a fair and impartial trial the court was justified in finding that affiants were not sufficiently advised to meet the requirements of the law. Three of these witnesses appeared to base their opinions principally on their knowledge of the state of public opinion in the township where the killing occurred, and while the other affiant testified in regard to a larger portion of the county he himself admitted there were sections of the county about which he was not advised. Under this proof no error was committed in overruling the motion for a change of venue. Dewein v. State, 120 Ark. 302, 179 S. W. 346.

It is earnestly insisted that the evidence is not legally sufficient to support the verdict of the jury. This is certainly true if we accept appellant's version of the encounter, but if that was done he was probably justified in firing the fatal shot. However, the jury did not credit that account and in testing the legal sufficiency of the evidence we assume the jury credited the state's evidence, and we need, therefore, only consider this evidence in deciding that question. According to this evidence a deadly enmity existed between appellant and the deceased. Appellant had married deceased's daughter, but an estrangement had grown up between appellant and his wife and they had separated, and his wife had returned to the home of her father, taking the children with her, and appellant charged deceased with the responsibility for this separation. It was shown that appellant had threatened to kill deceased and had made threats showing settled hatred, and within a day prior to the killing had borrowed three guns, one of which had been taken away from him. The killing occurred in the town of De Witt and was witnessed by the town marshal, who became one of the most important witnesses for the prosecution. This witness testified that when appellant raised his rifle to shoot the deceased that deceased had no weapon in his hands, but said just before he was shot, "Men, are you going to stand there and let this man kill me?" Deceased was, in fact, armed with a pistol at the time he was shot, but according to the state's evidence he made no attempt to draw or use his pistol until after he had been shot. Appellant testified that he did not fire his rifle until deceased had drawn his pistol, at which time he fired because he was in imminent peril. Appellant further testified that he had only a single cartridge in his rifle and that he ran away from the scene of the killing as soon as he had fired in his necessary self-defense. Appel...