Nicholas v. State

• Citation: 31 S.W.2d 527
• Decision Date: 06 October 1930
• Docket Number: No. 146.,146.
• Parties: NICHOLAS v. STATE.
• Court: Supreme Court of Arkansas

31 S.W.2d 527

NICHOLAS v. STATE.

No. 146.

Supreme Court of Arkansas.

October 6, 1930.

Rehearing Denied November 3, 1930.

Appeal from Circuit Court, Pulaski County; Abner McGehee, Judge.

Otis Nicholas was convicted of voluntary manslaughter, and he appeals.

Affirmed.

Robt. L. Rogers, of Little Rock, for appellant.

Hal L. Norwood, Atty. Gen., and Robert F. Smith, Asst. Atty. Gen., for the State.

HUMPHREYS, J.

Appellant was indicted in the circuit court of Pulaski county for the crime of murder in the first degree for killing Fred Gembler on February 28, 1930, in said county, and, upon a trial of the cause, was convicted of the crime of voluntary manslaughter and was adjudged to serve a term of three years in the state penitentiary as a punishment therefor, from which judgment an appeal has been duly prosecuted to this court.

Appellant's first assignment of error in the trial of the cause is that the prosecuting attorney was allowed, on cross-examination of his character witnesses, to interrogate concerning certain reprehensible acts of appellant. The cross-interrogatories, had they been answered in the affirmative, would have shown that appellant was violent, quarrelsome, and overbearing, instead of peaceable and law-abiding, as testified to by the character witnesses. The effect of affirmative answers would have been to reflect on the credibility of the character witnesses and were admissible for that purpose under the rule of evidence announced in the case of Woodard v. State, 143 Ark. 404, 226 S. W. 124, and reiterated in the case of Bridges v. State, 176 Ark. 760, 4 S.W.(2d) 12. In the instant case, however, the cross-interrogatories were answered in the negative, and, had the questions been improper, the negative answers would necessarily have eliminated any prejudice to appellant. There is nothing in the record to show that the cross-questions were propounded by the prosecuting attorney to cast reflections by innuendo upon appellant. So far as the record shows, the questions were asked by him in perfect good faith.

Appellant's next assignment of error is that the prosecuting attorney was allowed to introduce an exhibit to the jury, a picture of the deceased taken immediately after his death and before his removal from the scene of the tragedy. It is argued that, because this picture showed the awful gunshot wound in all its gruesomeness inflicted upon the deceased by appellant, it tended to arouse the passions of the jury, and thereby prevent a fair and impartial trial. The picture was nothing more than a description of the fatal wounds received by deceased at the hands of appellant. The character of the wound inflicted upon deceased by one charged with his murder is always admissible in evidence, and we know of no rule limiting the description thereof to word of mouth. No authority is cited by appella...