Morrison v. State

• Decision Date: 11 July 1927
• Docket Number: (No. 156.)
• Citation: 297 S.W. 830
• Parties: MORRISON v. STATE.
• Court: Arkansas Supreme Court

297 S.W. 830

MORRISON v. STATE.

(No. 156.)

Supreme Court of Arkansas.

July 11, 1927.

Rehearing Denied September 26, 1927.

Appeal from Circuit Court, Benton County; J. S. Maples, Judge.

Nink Morrison was convicted of second degree murder, and he appeals. Affirmed.

Appellant, Nink Morrison, was indicted and tried on a charge of murder in the first degree and convicted of murder in the second degree, and his punishment fixed at seven years in the penitentiary, for the killing of his cousin, Tom Morrison.

The deceased and appellant were first cousins, their fathers being brothers, and residing in the eastern part of Benton county in what is known as "Morrison Bend" on White river. The testimony shows that the families had been on unfriendly terms for some time before the killing, resulting in quarreling and fighting between the sons and extending even to the heads of the families. Several such difficulties were detailed in evidence, and it was shown that threats against the life of appellant had been made by the deceased and communicated to him. On Monday before the killing on Wednesday, appellant was driving his wagon on the neighborhood road, the only way to his father's home, expecting to go to Garfield to have his team shod, and the deceased, concealed in a cedar brake alongside the road in front of his home, came out and threw rocks at appellant passing. On the day of the killing appellant, who had gone past the home of deceased to his father's house, was returning and had taken his father's pistol from his room before leaving for his own home. He started driving back home over the rocky road, the wagon making so much noise that it could be heard for a long way, and when he reached a point immediately in front of Tom Morrison's home, situated on the north side of the road, the deceased, armed with a club in one hand and a rock in the other, was there awaiting his approach. He first threw the club at appellant and then the rock. He stooped and picked up another rock and threw it, having crossed the road to the south side and reached a point near the right hind wheel of appellant's wagon. Appellant was trying to quiet his team and get away, and the deceased stooped to get another rock, and when he did so appellant, believing himself in danger of great bodily harm and losing his life, drew his pistol and fired twice in rapid succession; one bullet taking effect in the deceased's body, entering under the left arm and ranging up and out through his right shoulder. One of the bullets was later cut out of a walnut tree on the south side of and across the road from deceased's home. The deceased raised up after the shots were fired with a rock in his hand and started back across the road, and fell about 25 or 30 feet north of the road and died where he fell. Appellant drove on not knowing whether he had shot or killed him, since he saw him walk back across the road and did not see him fall.

George Morrison, deceased's father, and his son Fred were present, and stated that they had been helping to build a side room onto his house and had just stopped, and deceased had gone to feed his hogs, and while he was walking northward to his home on the north side of the road with his back toward the road, the appellant, passing in the wagon, without provocation shot the deceased.

Appellant and Nick Rayon, who was present, stated that deceased was on the south side of the road and stooping to pick up a rock when he was shot, and did pick it up and cross back to the north side of the road. Nick Rayon was approaching the scene of the shooting from the east and had a plain and unobstructed view of the deceased when the shots were fired.

Witnesses George and Fred Morrison stated that they saw the pistol in appellant's lap as he approached the house, and appellant contends that deceased had heard the wagon approaching and left his work and was lying in wait by the side of the road to assault his cousin, who could be seen driving for a quarter of a mile distant from the house. It was also contended that the timber and cedar thicket obstructed the view of George and Fred Morrison to such an extent that they could not have seen a pistol in appellant's lap, even if he had had one.

Appellant's attorneys regarded it material to show exactly the condition and location of the road and thicket immediately in front of the home of deceased and the walnut tree with the bullet in it to the south and across the road from the house, and when adducing testimony for the purpose the court, without objection from the state's attorney, declared that he could see no materiality in such testimony or necessity for minutely showing any such facts.

The jury returned a verdict of guilty of murder in the second degree, and from the judgment thereon this appeal is prosecuted.

C. A. Fuller, of Eureka Springs, and John W. Nance, of Rogers, for appellant.

H. W. Applegate, Atty. Gen., and Jno. L. Carter and Darden Moose, Asst. Atty. Gen., for the State.

KIRBY, J. (after stating the facts as above).

It is first contended for reversal that the court erred in making the remark about the introduction of the testimony showing the physical condition immediately in front of deceased's house, along the road in front of which appellant was driving when the difficulty began and the killing occurred. The court after a lengthy cross-examination of George Morrison, the father of deceased, about the location of the trees, the thicket, and the condition of the road in front of the deceased's home where appellant was passing and the difficulty arose and the killing occurred, sustained the objection of the prosecuting attorney to the question of witness "if there was not trouble between him and John Morrison over the possession of the place, where he was working at the time." Appellant's attorney stated that he would show that there was trouble and the members of the families took sides, and Nink Morrison took sides with John Morrison. The court then stated that they were not going into the whole history eight or ten years back, to which the counsel replied it was right at the time of the killing, and the court said:

"I don't care if it was; I don't think two-thirds of this, as I see it, is competent at all; I cannot understand it; I don't know whether the jury can or not."

Counsel then asked that their exceptions be noted. The court thereupon made the following statement:

"Anything that tends to prove or disprove this...