Mondier v. State

• Decision Date: 16 December 1946
• Docket Number: 4432
• Citation: 198 S.W.2d 177,210 Ark. 933
• Parties: Mondier v. State
• Court: Arkansas Supreme Court

198 S.W.2d 177

210 Ark. 933

Mondier v. State

No. 4432

Supreme Court of Arkansas

December 16, 1946

Rehearing Denied January 13, 1947.

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

Affirmed.

Rains & Rains and Hardin, Barton & Shaw, for appellant.

Guy E. Williams, Attorney General, and Earl N Williams, Assistant Attorney General, for appellee.

OPINION

Robins J.

Appellant, Bill Mondier, Orville Wayne Sloan and Jerry McCabe were jointly charged in information filed by the prosecuting attorney with the offense of murder in the first degree, it being alleged that on March 18, 1946, Jerry McCabe feloniously, after premeditation and with malice aforethought, stabbed Gerald Bradley to death with a knife, and that Sloan and appellant were present and unlawfully assisted Jerry McCabe in committing said murder. Motions for severance and for bill of particulars were filed by appellant. The motion for severance was sustained; and the prosecuting attorney filed bill of particulars alleging, among other things, that appellant, Sloan and McCabe, by common agreement, assaulted Gerald Bradley, Vernon Bradley and James Bradley, and that while they were engaged in this common difficulty appellant aided Jerry McCabe in the slaying by attacking Vernon Bradley.

Sloan was tried first and his conviction of murder in the second degree, with sentence to imprisonment in the penitentiary for five years, was affirmed by us on November 25, 1946. See Sloan v. State, ante, p. 739, 197 S.W.2d 757.

Appellant was found guilty by a trial jury of the crime of voluntary manslaughter and from judgment sentencing him to confinement for five years in the penitentiary he prosecutes this appeal.

For reversal it is argued by appellant: 1. That the testimony is insufficient to support the verdict. 2. That the court erred in its instructions to the jury.

1.

The testimony on behalf of the State tended to establish these facts: On the night of the fatal difficulty appellant, in company with McCabe and Sloan, attended a dance at the V.F.W. hall in Fort Smith. Appellant and his two companions left the dance and went to a nearby place called "The Spot," presumably to obtain drinks. They were denied admittance because, on account of the lateness of the hour, the doors had been closed. Jack Barker, son of the proprietor, went to the door, and was invited on the outside by someone standing in front of the door and as soon as he went out he became engaged in a fight with some person in the crowd. The three Bradley brothers, James, Vernon and Gerald, were drinking beer on the inside of "The Spot," where they were when the front door was closed. After Barker left the Bradley brothers also went out, and as they went out they were attacked. James Bradley testified: "Someone kicked and pounded on the door after it was closed and the boy behind the bar went to the door and stepped outside and shoved and came back in. We went outside. Vernon went outside and then Gerald and I came. When we got out Vernon was in the middle of the street and his head was cut on the side. Gerald and I went to his side and some man hit me in the stomach. It was Sloan and he had cut me. At the same time Gerald was fighting with McCabe and was cut. I was hit and knocked about twenty feet. None of us provoked any difficulty and me and my brothers were sober. The fight lasted about two minutes after I arrived. Sloan cut me and McCabe cut my brother Gerald and Mondier engaged Vernon." The testimony of Vernon Bradley was to the same effect.

While appellant testified that he went from the dance hall to his car and did not engage in the difficulty at all, this contradiction of the testimony of witnesses for the State was one for the jury to settle. The jury saw fit to accept the testimony of the two brothers of deceased and this determination is binding on us. Blankenship v. State, 178 Ark. 1199, 10 S.W. 2d 25; Patterson v. State, 179 Ark. 309, 15 S.W.2d 389; Maloney v. State, 181 Ark. 1035, 27 S.W.2d 94; Blevins v. State, 182 Ark. 109, 30 S.W.2d 851; Shank v. State, 189 Ark. 243, 72 S.W.2d 519; Burnett v. State, 197 Ark. 1024, 126 S.W.2d 277.

It is earnestly insisted by appellant that there is no proof of any concert of action between appellant and his two companions and that, even if the testimony of appellant is disbelieved and the version of James and Vernon Bradley accepted, it was shown that the difficulty between appellant and Vernon Bradley was in no way connected with the attack of McCabe on Gerald Bradley. It was not required, in order that the concert of action be established, that the State prove the plan for such action by direct testimony. "It is not necessary, however, in order to establish a conspiracy, to prove the unlawful combination between the parties by direct evidence. This may be shown by circumstances. In the case of Chapline v. State, 77 Ark. 444, 95 S.W. 477, it was held...