Montague v. State

• Decision Date: 31 May 1948
• Docket Number: 4500
• Citation: 211 S.W.2d 879,213 Ark. 575
• Parties: Montague v. State
• Court: Arkansas Supreme Court

211 S.W.2d 879

213 Ark. 575

Montague v. State

No. 4500

Supreme Court of Arkansas

May 31, 1948

Rehearing Denied June 28, 1948.

Appeal from Craighead Circuit Court, Jonesboro District; Zal B Harrison, Judge.

Affirmed.

Wils Davis, Eugene Sloan and Arthur L. Adams, for appellant.

Guy E. Williams, Attorney General, and Oscar E Ellis, Assistant Attorney General, for appellee.

Holt J. Robins and McFaddin, JJ., dissent.

OPINION

Holt, J.

Appellant, Walter Montague, was charged with murder in the first degree by shooting a Negro, Ralph Donaldson, with a thirty-eight calibre pistol and killing him. He was convicted of murder in the second degree and his punishment assessed at twenty-one years in the State Penitentiary. From the judgment is this appeal.

For reversal, appellant has set out in his motion for a new trial thirteen assignments of alleged errors, which he has grouped in the following propositions:

"1. The trial court committed reversible error in excluding evidence, offered by the defendant, tending to show the violent, turbulent character of deceased, known to defendant and impelling him to act in his own self-defense.

"2. The trial court committed reversible error in admitting in evidence, over the objection and exception of defendant, (the State's cross-examination) regarding separate and distinct offenses of defendant, disconnected in time, place and occasion from the offense charged.

"3. The trial court committed reversible error in permitting counsel for the State to engage in unrestricted, inflammatory argument, not supported by any competent evidence, reflecting upon the family of defendant, and of his counsel, and calculated to prejudice the jury. All of this was done without admonition or caution to the jury by the trial court."

Before considering these "propositions," which we shall presently do in their inverse order, we examine assignments 1, 2, 3, and 11, which, in effect, challenge the sufficiency of the evidence. Appellant admitted that he killed the deceased, but claimed that he did so in his necessary self-defense.

Appellant's victim, Ralph Donaldson, at the time he was killed, was 28 years of age, had been married about 7 years, and had one child about four weeks old. He was of slender build and weighed about 140 pounds. His wife testified that on September 21, 1947, at about 7:15 p. m., Gladys and Byrnis Montague, sister and brother of appellant, drove to the home of the deceased and asked for him. Ralph had worked until 12 o'clock the preceding night, had gone to bed at 2:30 that afternoon and was still in bed. He got up, put on a khaki shirt and trousers, and after Gladys told him appellant wanted to see him at his office, Ralph went off in the car with them. His wife never saw him again until she viewed his body at Gregg's Mortuary. The deceased had worked for appellant since his marriage, or for about 7 years, but had quit working for him approximately two days before he was killed.

W. E. Robbins, a police officer, testified that he, in company with Officer Cole, went to appellant's office a few minutes after the shooting: "Q. When you got there, who was present? A. Mr. Walter Montague, Mr. Byrnis Montague and Miss Gladys Montague. . . . Q. Where was Walter Montague when you went in? A. He was about four feet from the head of the man that was shot, sitting in a chair. . . . Q. Behind the desk in a chair in the front part of the office? A. Yes, sir. . . . A. Well, he (Ralph) was hardly dead yet. He was gasping for breath, and his eyes were fluttering. He was dying. . . . A. I asked who shot the Negro. Mr. Walter Montague said he had -- Mr. Walter Montague said 'I did.' And I said 'It looks like you have killed you a man, Mr. Montague' and he replied, 'I hope I did.' . . . Q. When you walked into the office there did you see anything on the floor about the body? A. No, sir; not any gun or knife on the floor. . . . Q. Tell this court and jury what Walter Montague had to say about this Negro having a knife. A. He didn't say a word to me about him having a knife. No mention was made about him having a knife at all. Q. Tell this jury what Walter Montague, Byrnis Montague, or Gladys Montague had to say about this Negro attacking Walter, or any other Montague. A. They didn't say anything to infer he had made any movement to attack anyone."

Officer Cole corroborated Robbins' testimony.

Gladys Montague testified (appellant's brief): "Byrnis and Gladys took Ralph Donaldson to office. Witness went in first, sat down back of desk. Ralph went in second and sat on stool, Byrnis came in and sat down on edge of desk. Walter went over and sat down in chair. Did not force Ralph to go. Ralph went voluntarily. Was no design to take his life," and "A. Walter said 'Ralph, didn't you tell me that Gladys had been going with Elbert Goodman?' Ralph kind of dropped his head, and said 'Now, Mr. Walter --,' as if he wanted to evade the question. And Walter said 'Now, Ralph, didn't you unsolicited tell me Gladys had been going with Elbert Goodman?' He said 'Yes, Mr. Walter, I did.' I said 'Ralph, did you ever see me anywhere with Elbert Goodman?' He said 'No, Miss Gladys, I never did.' I said 'Did you ever see anything in this office or anywhere else that would cause you to make a remark like that?' He said 'No, Miss Gladys, I never did.' I said 'Why did you tell a thing like that?' He said 'I don't know.' Then Walter said 'Ralph, you told a damn lie about that, I want the truth about this: What did you do with my money you stole Friday night?' Q. What happened when Walter said that? A. Ralph run his right hand in his right pocket and come out and raised it, and lunged toward Walter. . . . A. He had an object in his hand. . . . Q. When he lunged at Walter, as you say, what happened? A. Walter fired the shot."

While appellant did not, in oral arguments or in his brief, seriously argue that the evidence was not sufficient to support the verdict, we have carefully examined it all and find it amply warranted the jury's action. It would serve no purpose to detail more of the testimony.

No complaint is made by appellant as to any of the instructions.

We come now to consider the three grouped propositions, supra.

The record reflects that Mr. Spencer, Deputy Prosecuting Attorney, in opening the argument for the State used this language, over the objections and exceptions of appellant: "We have two slaughter houses here where dumb animals are slaughtered and prepared for food, but we have one place of business we're not proud of, and it should be called Walter's Slaughter House, Inc. It doesn't deal in the commodity of hogs, sheep or cattle, but in human lives. He already has two notches on his gun and a scratch besides; for God's sake don't let him put on a third one. Give this killer that's loose at Christmastime the works."

Mr. Hale, Prosecuting Attorney, who closed the argument for the State, used the following language: "The fact and the whole unshirted truth is this statement of his, gentlemen of the jury: 'There are two extremes; one of them is the electric chair, and one is to turn him loose.' He told you himself you would have to go to the extreme to turn this ex-convict, this two-time killer and another time shooter -- that you would have to go to an extreme to turn him loose. . . .

"Mr. Sloan says that society will continue if this jury lets him loose. Society continued before when a jury popped him on the wrist and said 'We will give you two years for knifing the life out of a man at the Jonesboro Transfer Company. We will call it manslaughter. We will let you off because you come from a prominent family here in Jonesboro,' and that's the reason they get off. . . .

"Now, with reference to family. Yes; some of his people married some good people; some of his people are good people. He has a sister there that sat at that counsel table that is a good woman. No doubt about it. I think that is so. Don't you know she was ashamed, humiliated and embarrassed, not only to sit here with a killer for effect, but to know her brother, the black sheep of that family, had killed not once -- not twice -- not three times -- three times! And who has brought about disgrace to the family --."

At this point, the record discloses: "Mr. Davis: I object to that, if the court please. We object to that line of argument. Mr. Hale: That is in the record, if the court please. Mr. Davis: Just a moment --. The Court: Just a minute, Mr. Hale, I don't know of any evidence saying he has taken life three times. Mr. Dudley: Counsel did not say that. The Court: So far as what he did, he did what this court convicted him of, and nothing more. Mr. Hale (continuing): He has admitted on this witness stand that he has done plenty. This jury knows what the record is. They know that surely when you start stomping on any toes they'll find something objectionable. And you know every time you heap some hot coals under their shirt-tail they're going to jump --. Mr. Davis: That is still objected to, that character of argument, if the court please."

We are unable to say that the above language used by State's counsel was not warranted on the facts or that it was prejudicial to appellant's rights. Some of the statements were but expressions of counsel's opinion and others were supported by the facts. It is undisputed in this case that appellant had killed two men (including Ralph Donaldson) and shot a third. In fact, appellant himself so testified.

In these circumstances, we think the trial jury, possessing all the qualifications required under our statutes (§§ 8312 and 8314, Pope's Digest), that is "electors of good character, of approved integrity, sound judgment and reasonable information," could not have been misled,...