Owens v. State

• Decision Date: 25 October 1915
• Docket Number: 181
• Citation: 179 S.W. 1014,120 Ark. 562
• Parties: OWENS v. STATE
• Court: Arkansas Supreme Court

179 S.W. 1014

120 Ark. 562

OWENS v. STATE

No. 181

Supreme Court of Arkansas

October 25, 1915

Appeal from White Circuit Court; J. M. Jackson, Judge; affirmed.

Judgment affirmed.

W. D Davenport and Harry Neelly, for appellant.

The court erred in overruling appellant's motion for a continuance, he having used all due diligence to procure the attendance of the absent witness. 100 Ark. 310; 99 Ark. 394; 99 Ark. 547; 60 Ark. 565.

The evidence is not sufficient to support the verdict of the jury. 34 Ark. 632; 13 Ark. 712; 16 Ark. 499; 34 Ark. 720.

The remarks of the prosecuting attorney were highly improper and prejudicial. 84 Ark. 134; 74 Ark. 256; 58 Ark. 473; 61 Ark 130-138; 70 Ark. 305-307.

The court erred in not admonishing the prosecuting attorney as to his improper remarks. 70 Ark. 305; 67 S.W. 755; 72 Ark. 427; 74 Ark. 256; 85 S.W. 428; 74 Ark. 298; 85 S.W. 771; 116 Ark 514; 110 Ark. 538.

Wallace Davis, Attorney General and Jno. P. Streepey, Assistant, for appellee.

The motion for continuance was properly overruled, as the testimony of the absent witness, if produced, would have been merely cumulative. 86 Ark. 317; 100 Ark. 149; 103 Ark. 119.

The appellant did not show due diligence. 94 Ark. 169; 92 Ark. 28; 100 Ark. 132.

The testimony of witness Barnard, to the effect that appellant had confessed to him that he had killed the deceased was proper to go to the jury. 94 Ark. 343, 344; and the court did not err in modifying instruction No. 7. 94 Ark. 343, 344; 72 Ark. 126; 73 Ark. 407.

The prosecuting attorney did not commit any error in his opening statement, nor in the argument.

There was evidence upon which to base the verdict. 109 Ark. 130; 109 Ark. 138.

OPINION

MCCULLOCH, C. J.

Appellant was convicted of the crime of murder in the first degree, and his punishment was fixed by the jury at life imprisonment. The charge against him is that he and one John Perdue committed the offense by killing Luther Cotham at the village or town of Georgetown, White County, Arkansas, on the night of April 27, 1915.

The principal ground urged for a reversal of the judgment is that the evidence is not sufficient to sustain the verdict, and in disposing of that contention it is necessary to discuss in detail the circumstances of the killing and the facts and circumstances which tended to establish appellant's guilt.

Appellant lived at Georgetown in the house with deceased and the latter's wife. He had been living at Georgetown about a year, and lived in the house with deceased and his wife since the month of December preceding the killing. Deceased and his wife lived in a room downstairs, and appellant occupied a room upstairs, which was approached by a stairway leading up to the front porch. Appellant paid no board, but was living there at the request of the deceased. The killing occurred on Saturday night, and a few days before that deceased and his wife had decided to leave there, and had spoken to appellant about the fact that they were going to leave. Shortly before that time appellant had made a proposal to the wife of deceased that she leave her husband and go away with him, but she declined to accept the invitation. About supper time on the night of the killing deceased and his wife were absent from the house, and on their return they found appellant in their room with the door locked. A few days before that time Mrs. Cotham tried to get appellant to quit staying at the house, but, according to her testimony, he declined to do so. Mrs. Cotham's father also testified that he talked to appellant and tried to get him to leave, and suggested that he was causing trouble between Cotham and his wife, but that appellant declined to go, saying that he had talked to Cotham, and that the latter had consented for him to stay. Mrs. Cotham also testified that about a week before the death of her husband appellant said to her that he had eave-dropped her and her husband and watched them through the window, and that he said "he had a damn good notion of taking his gun out of his pocket and killing both of them."

There was a negro dance in Georgetown on the night of the killing at the house of a negro named McRae, and early in the evening appellant left the house of the Cothams and went to the dance. He invited Cotham to go with him, and the latter declined to go at that time, but about an hour later followed, and both of the men attended the dance. Appellant and Cotham were both white men. Witnesses testified that Cotham left the dance about 11 or 12 o'clock, and appellant himself testified the last time he saw Cotham the latter was standing out to one side talking with several negro girls. The killing occurred some time during the night, but there is no direct testimony as to the hour it occurred. The proof adduced by the State shows that the watch of deceased stopped at 1 o'clock, and the inference is that the killing occurred at that hour. Several of the witnesses testified about the condition of Cotham's body when found the next day, but there is no witness that states where the body was found, though it is fairly inferable from the testimony that the body was found in White river. Georgetown is situated on or near the bank of that stream. The witnesses who testified concerning the condition of the body stated that the left side of the face was crushed and mutilated, and that there were three knife wounds in the abdomen. The place of the killing was identified by several witnesses who testified that they found tracks and blood and followed them to the bank of the river where the body was evidently thrown in. There was also found at the place thought to have been the scene of the killing three human teeth and a pistol cartridge, and also a fresh cork which came out of a bottle of whiskey. The indications were that some person had carried the dead body of Cotham from the place that the witnesses identified as the place of the killing, to the river, and that the body was laid down on the ground at different places, the places being indicated by blood spots.

About 5 o'clock the next morning appellant and Perdue went to a drug store in Georgetown and awakened Doctor Alexander, the proprietor, and appellant asked for some medicine to be administered to Perdue, who was sick and suffering from stomach trouble. Perdue testified that he became grossly intoxicated the night before and slept most of the night and awoke early in the morning very sick. Appellant admitted that he and Perdue had been together all night--that he had remained with Perdue during the part of the night that the latter lay in a drunken sleep. Doctor Alexander administered the medicine and appellant laid down on a bed in the back room of the drug store and slept until about 8 o'clock. He had a small suitcase with him, and he placed that under the bed. An officer sent to Brinkley for blood-hounds, which were brought to the scene of the killing by the owner, who testified as to the qualifications of the dogs to follow a human trail. There was one track in particular that was plainer than the others, and when discovered early Sunday morning, a pig-pen was moved over it so as to fence it away from intruders. Appellant had bought a pair of shoes from a merchant at Georgetown about a week before the date of the killing, and the merchant testified that the shoes were No. 9 in size, and they took a No. 8 1/2 shoe of the same make, and the same width last, and put it in the track, and the shoe fit the track except in length. The bloodhounds were taken to this track and they began following a trail toward the river, and thence to a sawmill, and thence around the railroad station, and thence to the drug store, and through the store back into the sleeping room, where one of the dogs mounted the bed where appellant had slept that morning, and the other dog went under the bed and could hardly be forced away from appellant's suitcase which was lying under the bed. The suitcase, when opened, was found to contain some of appellant's clothing and three bottles of whiskey.

Appellant was arrested by the officers at 6:20 o'clock in the evening while at the railroad station just as the train came in. The dogs were following the trail at that time, and according to the witnesses, every man about the town except the railroad agent and appellant were following and watching the movements of the dogs. Several witnesses testified that during the forenoon of that day they noticed appellant with the left sleeve of his under-shirt rolled up, and that there was blood on the sleeve. They testified that on the upper side there appeared to be a clot of blood, and on the lower side of the sleeve there was a smear of blood as if the sleeve had been rubbed against some bloody place. A physician, who qualified himself as a chemist, testified that he had made an examination and chemical analysis of splotches on a pair of pantaloons which appellant wore on the day after the killing, and that he found the splotches were caused by blood, but he could not say...