Motley v. State

• Decision Date: 16 December 1912
• Citation: 152 S.W. 140,105 Ark. 608
• Parties: MOTLEY v. STATE
• Court: Arkansas Supreme Court

152 S.W. 140

105 Ark. 608

MOTLEY v. STATE

Supreme Court of Arkansas

December 16, 1912

Appeal from Madison Circuit Court; J. S. Maples, Judge; affirmed.

Judgment affirmed.

Walker & Walker, for appellants.

1. The evidence does not sustain the verdict. The appellants, under the evidence, acted clearly within their rights in justifiable self-defense.

2. Instruction 8 was erroneous. While it is admitted that the law of self-defense "begins in necessity and ends in necessity," yet such necessity need not be actual, but may be apparent only.

3. The judgment should be reversed for the error of the court in permitting two witnesses to testify, without sufficient foundation being laid therefor, to alleged dying declarations of the deceased made on January 4, following the cutting on December 23.

Even if sufficient foundation had been laid, it was still error to permit testimony of the opinion of deceased that he was cut by both defendants. Dying declarations, to be admissible must be of facts, not opinions. 1 Greenleaf on Evidence § 159; Wharton, Crim. Ev., § 292; 39 Ark. 221. The general tendency is to a greater stringency, rather than to a relaxation, of the rule with reference to the admission of this character of testimony. 4 Enc. of Ev. 945, and cases cited in note; 146 U.S. 140; 99 Ala. 180; 105 Ga. 242; 31 Ind. 193; 7 Ia. 347; 97 Ky. 103; 75 Miss. 559; 80 Mo. 67; 35 S.C. 290; 9 Humph. 9.

Hal L Norwood, Attorney General, and Wm. H. Rector, Assistant, for appellee.

1. The verdict of the jury is equivalent to saying that they did not believe from the evidence that the killing was done in necessary self-defense--and there is ample testimony to sustain that finding.

2. There is no merit in appellant's objection to instruction 8. The concluding words of the instruction, as well as the language of other instructions, conveyed clearly to the jury the idea that the danger need not be real but might be apparent.

3. There was no error in admitting in evidence the statements of the deceased a short time before dissolution. 88 Ark. 579.

OPINION

KIRBY, J.

Appellants were indicted for murder in the second degree for the killing of Sam Prater, in Madison County, Arkansas, on December 23, 1911, by stabbing him with a knife. Upon trial, they were convicted of voluntary manslaughter, and their punishment fixed at two years each in the penitentiary. From this judgment they appealed.

It is contended for reversal: First, that the evidence is not sufficient to support the verdict; second, that the court erred in giving instruction No. 8; and, third, because of the admission in testimony of the dying declaration of the deceased; also, because of improper argument of the prosecuting attorney.

The testimony tends to show that Sam Prater, the deceased, was drinking and quarrelsome on the evening of the difficulty, and had already had a fight with one Willard Patrick, who was a brother-in-law of Charley Vanbrunt, one of the appellants. During this difficulty, Charley Vanbrunt ran to one of the parties, who was trying to stop that fight, and caught hold of him, and said, "I am a friend of Willard Patrick and will fight for him," and was holding his hand at the time as though he had a knife in it. The man of whom he took hold said he was a friend of both parties, and if Charley was going to do any cutting he would help him, and drew his knife. The combatants made friends, and Willard Patrick went home, after inviting Sam Prater, who declined the invitation, to go to supper with him.

The first difficulty occurred in front of Barron's store and after it ended Patrick and Prater both passed around to the rear end of the store. Charley Vanbrunt went around that way with Tom Motley, Patrick invited Prater to supper with him and he declined to go, saying, he would "see him in hell first." Tom Motley then said to Prater, "Come on if you want to fight. There isn't but one of us." Charley Vanbrunt was with him at the time. Prater was following him, and, after the remark, walked up to Charley and drew his hand back as if to strike, and Charley threw his left arm up to ward off the blow, and said, "I don't want to fight." Tom walked between Charley and Prater, and Prater struck at him. Tom stepped back a step or two, and Ed. Landreth walked between them, and caught the lick on his left arm, and told them to "cut out the rowing." Sam hit Tom Motley on the head with his fist, and Tom fell to some extent and lost his hat. Landreth told Prater "not to start anything," and, as he was striking at Tom, caught his wrist and knew he had no knife open at all at any time during the fighting, and Motley said, "You hold him." This witness said he took hold of Prater, and Motley walked back several steps, and he thought the fight was over and started on. He heard quick steps, looked back, and saw Tom Motley run up to Prater and strike his back with the side of his hand just below the shoulder on the left side of the backbone, and as Tom pulled his hand away Prater turned, and "I saw his coat come open and his white shirt show." Tom had to go from three to five short steps to get to Prater to cut him. "I saw Prater make no motion, and later saw Charley Vanbrunt, Tom Motley and Sam Prater getting up and Charley and Tom said, 'Let's go; he's had enough.' I went to the house with Prater, and saw him stripped and helped nurse him until he died." He also said that Prater made some remark, and attempted to strike Charley Vanbrunt at the beginning of the fight, and Charley said he didn't want to fight, and he then went for Tom, and said something before striking him. He struck at Tom two or three times before striking him, and said to Tom, "Don't get your gun," and Tom said to him, "Don't get your knife." He said further that, after he stepped between the parties, Charley Vanbrunt said he didn't want to fight, and then dashed by him and began fighting Prater.

All the testimony shows that both the appellants made common cause in the fight against the deceased, and that after Tom Motley had broken the quart bottle over the head of deceased he and Charley Vanbrunt were scuffling on the ground with him, and he said to Charley, "Let's go." Charley himself testified that he said, after stabbing Prater in the breast while on the ground in the scuffle, that he reached around under his arm and stabbed him in the back once or twice, and said to Tom, "Let's go; he's had enough." Appellants went off together.

Their version of the affair, as related by themselves and their witnesses, is that Sam Prater was drinking and quarrelsome and had slapped the face of George Dotson out in front of the store, when Willard Patrick came up and said, "You ought not to do the boy that way." This resulted in the first fight. After it was over, the parties went around towards the rear of the store, and Prater assaulted and began striking Vanbrunt, and also striking at Tom Motley. Vanbrunt said he stabbed the deceased in the breast and also in the back under the shoulder while they were down on the ground scuffling; that he didn't begin to use his knife until after deceased had struck him two or three times with his open knife in his hand. Deceased was striking over-handed with the knife blade up and out and striking him with the bottom of his fist, and that he acted in self-defense in stabbing the deceased, and that he was not cut by Tom Motley at all. Motley testified that he never struck deceased with his knife; struck him with his fist at first and finally broke the bottle over his head during...