McGarrah v. State, 4605

• Citation: 229 S.W.2d 665,217 Ark. 186
• Decision Date: 24 April 1950
• Docket Number: No. 4605,4605
• Parties: McGARRAH v. STATE.
• Court: Arkansas Supreme Court

Page 665

229 S.W.2d 665

217 Ark. 186

McGARRAH v. STATE.

No. 4605.

Supreme Court of Arkansas.

April 24, 1950.

Rehearing Denied June 5, 1950.

Rex W. Perkins and G. T. Sullins, Fayetteville, for appellant.

Ike Murry, Atty. Gen., Jeff Duty, Asst. Atty. Gen., for appellee.

McFADDIN, Justice.

Appellant Edgar McGarrah, was tried on an information charging him with the murder of Franklin Holloway. The uncontradicted facts established that appellant was playing a game of pool with Billy Bridges; that Holloway, Lem McGarrah (appellant's brother) and others were seated nearby and watching the game; that conversation was passing between the participants and the onlookers; that just after appellant had made a good shot and won the game, Holloway arose and took a step; and that appellant struck Holloway on the head with the pool cue, inflicting a skull fracture from which death ensued a few hours later.

It was the State's theory that appellant inflicted the blow because of previous animosity and a declared intention to 'get even'. It was the appellant's theory that Holloway had a knife, or some weapon, in his pocket and was being aided by Lem McGarrah; that the two were advancing on Edgar McGarrah to inflict injuries, and that appellant struck the blow in necessary self-defense. The jury's verdict evidently adopted a middle ground theory, supported by the evidence, to the effect that Holloway arose to leave the pool hall and that Edgar McCarrah, in a sudden heat of passion, struck Holloway without provocation. From a conviction of voluntary manslaughter there is this appeal.

I. Continuance for Absent Witness. The information was filed on May 17, 1949. On October 10th the Court set the case to be tried on October 27th. Appellant had a subpoena issued for the witness Davis, and learned that he was in California. On October 12th appellant's counsel at Fayetteville wrote the Prosecuting Attorney at Berryville, suggesting the taking of the deposition of Davis in California; but no interrogatories were enclosed in the letter. On October 20th the Prosecuting Attorney went to Fayetteville and, with appellant's attorney, prepared the interrogatories which were forwarded to California. When the deposition had not been turned on October 27th, appellant moved for a continuance.

The motion was overruled; and we see no abuse of discretion committed by Trial Court. The burden was on the appellant to exercise due diligence to obtain the testimony of the absent witness. Appellant had from May until October to get the deposition. Instead of writing a letter on October 12th (15 days before the trial), appellant could have had the interrogatories prepared and personally delivered to the Prosecuting Attorney. In short, we fail to find the exercise of due diligence by appellant, and so we refuse to say that the Trial Court abused its discretion in overruling the motion. See Jackson v. State, 94 Ark. 169, 126 S.W. 843; Miller v. State, 94 Ark. 538, 128 S.W. 353; Joiner v. State, 113 Ark. 112, 167 S.W. 492; and French v. State, 205 Ark. 386, 168 S.W.2d 829.

II. Continuance on Account of Illness of Counsel. Appellant had retained the law firm of Sullins and Perkins to represent him. Mr. Sullins was ill at the time of the trial and continuance was sought for that reason. But Mr. Perkins ably represented the defendant; and such representation made continuance unnecessary. See Maloney v. State, 181 Ark. 1035, 27 S.W.2d 94; Curtis v. State, 89 Ark. 394, 117 S.W. 521; and Holmes v. State, 144 Ark. 617, 224 S.W. 394.

III. Exclusion of Testimony. The defense offered to prove by Dr. Harrison that on one or two occasions the deceased, Franklin Holloway, had been brought to the Doctor in a delirious condition which the Doctor thought had been occasioned by acute alcoholism; and that at such times the deceased was violent and had to be restrained. The Trial Court excluded the proffered testimony on the theory that the witness had acquired his information as a result of the confidential relationship of physician and patient. See James v. State, 161 Ark. 389, 256 S.W. 372. We prefer to sustain the exclusion of the proffered evidence, because it was irrelevant. The defendant testified: 'Q. Let me ask you this: did you think he was having a 'spell' that night? A. No, I didn't have time to think anything.' Since apprehension of Holloway having a 'spell' was not the cause of the defendant striking the deceased, the evidence of 'spells' was entirely irrelevant. We need not consider whether the evidence was competent against the objection that it was an effort to show general reputation by specific incidents.

Furthermore, the Court allowed other witnesses to testify as to the 'spells' the deceased suffered, so the testimony of Dr. Harrison could only have been cumulative; and the Trial Court has discretion to limit the number of witnesses whose evidence is cumlative. See Sheppard v. State, 120 Ark. 160, 179 S.W. 168, and Cole v. State, 156 Ark. 9, 245 S.W. 303.

IV. State's Instruction No. 11. The Court gave this instruction: 'The killing being proved, the burden of proving circumstances of mitigation that justify or excuse the homicide shall devolve upon the accused, unless by the proof on the part of the prosecution it is sufficiently manifest that the offense committed only amounted to manslaughter, or that the accused was justified or excused in committing the homicide.' The appellant objected to this instruction, claiming that it shifted the burden of proof to the defense; and the appellant asked that these words be added at the end of the instruction: 'But the burden of proof is on the State in the whole case to convince you beyond a reasonable doubt of the guilt of the defendant.'

The instruction, as given, is in the exact language of the Statute, Sec. 41-2246, Ark.Stats.1947; and such an instruction has been discussed by this Court in numerous cases, some of which are listed in the Annotation immediately following the Statute, and other cases are cited in Gaines v. State, 208 Ark. 293, 186 S.W.2d 154. The refusal of the Trial Court to add the additional words requested is justified, because the Court, in other instructions, stated that the burden of proof was on the State. Instruction No. 4 advised the jury as to the presumption of innocence; Instruction No. 5 was on reasonable doubt; and Instruction No. 21 told the jury that the burden was on the State to convince the jury beyond a reasonable doubt that the defendant was guilty. In Thomas v. State, 85 Ark. 357, 108 S.W. 224, the same contention was made as here; and the Court's opinion in that case, delivered by Mr. Justice Battle, is ruling in the case at bar.

V. Refusal to Instruct on Involuntary Manslaughter. The Court ruled that the evidence was insufficient to sustain a charge of first-degree murder, and instructed the jury on second-degree murder and voluntary manslaughter. The defendant requested an instruction on involuntary manslaughter and claims error because it was refused. Assuming, but not deciding, that the requested instruction was correctly and fully worded, and also conceding that an instruction on involuntary manslaughter should generally be given in a homicide case like the one at bar, nevertheless we hold that there was no error in refusing to...