Owens v. State

• Decision Date: 18 June 1923
• Docket Number: 54
• Parties: OWENS v. STATE
• Court: Arkansas Supreme Court

252 S.W. 25

159 Ark. 503

OWENS v. STATE

No. 54

Supreme Court of Arkansas

June 18, 1923

Appeal from Little River Circuit Court; B. E. Isbell, Judge affirmed

Judgment affirmed.

June R. Morrell, for appellant.

The court erred in not requiring the State to elect upon which of the three counts of the indictment appellant should be tried. Error was also committed in allowing evidence introduced showing appellant was engaged in making and selling intoxicating liquor. This was done by the State before defendant's testimony was introduced or any admission had been made of the fact. 70 Ark. 610; 11 L. R. 1. The verdict is clearly against the weight of the testimony, and the evidence does not corroborate sufficiently the statements of the accomplices to warrant a conviction of murder in the first degree. Certainly the death penalty should not be inflicted on a conviction on any such testimony. The judgment should be reversed, or in any event so modified as only to impose imprisonment for life.

J S. Utley, Attorney General, John L. Carter and Wm. T. Hammock, Assistants, for appellee.

The evidence relating to appellant's making and selling intoxicating liquor was not unrelated to the offense with which he was charged, but was so interwoven and connected with it that some evidence of it necessarily got into his case in the testimony relating the circumstances about it. Underhill on Evidence, 154, par. 88; 6 Enc. of Evidence, 607; 14 Ark. 555; 10 R. C. L. 930 par. 94, 939 par. 106, 925 par 87; 62 Ark. 259; 40 Ark. 511; 13 Ark. 236; 82 S.W. 369; 1 Bishop, New Criminal Procedure, § 1125; 168 N.Y. 305. No error was committed in the introduction of this testimony about a fact which was admitted by defendant. No error shown in the introduction of testimony of the so-called "accomplices", who were not in fact accomplices, as the evidence shows. 66 Ark. 16; 105 Ark. 16; 45 Ark. 539; 51 Ark. 189. The jury was properly instructed on the question of accomplices and necessity for corroboration of their testimony in instruction "E," and whether these witnesses were accomplices of defendant was a mixed question of law and fact to be determined by the jury. 43 Ark. 367; 51 Ark. 115; 51 Ark. 189. Even if they were accomplices, and they were not, there is sufficient corroboration of their testimony.

OPINION

SMITH, J.

Appellant was convicted of murder in the first degree, and has been sentenced to be electrocuted. The indictment under which he was tried contained three counts, each charging him with having killed Hugh Throckmorton. The first count alleged that he killed Throckmorton by twisting and breaking his neck with his hands; the second count alleged that appellant killed Throckmorton by striking and beating him with a pistol; and the third count alleged that the manner and means of the commission of the crime were unknown to the grand jury; but both the second and third counts contained the allegation that the crime there charged was identical with that charged in the first count.

The court refused to require the State to elect upon which count appellant would be tried, and an exception was saved to that ruling. No error was committed in this ruling, as it was not improper to thus charge the offense to meet the uncertainty in the proof and thereby prevent a variance. Williams v. State, 153 Ark. 289, 239 S.W. 1065; Nordin v. State, 143 Ark. 364, 220 S.W. 473; Harris v. State, 140 Ark. 46, 215 S.W. 620; Davidson v. State, 108 Ark. 191, 158 S.W. 1103; Grayson v. State, 92 Ark. 413, 123 S.W. 388.

According to the testimony on the part of the State, the crime was one of revolting brutality. Appellant was engaged in the manufacture and sale of moonshine whiskey, and was being freely patronized by deceased and several other neighbors, but he drank with them, and they all became more or less intoxicated. Appellant took charge of the party and ran it to suit himself. He conceived the idea that some one had stolen his money, about two hundred dollars, and he accused Euclid Cooper of having taken it. Cooper had got drunk and had left the scene of the carousal, and appellant ordered Throckmorton to find and bring Cooper to him, and he told Throckmorton that if he did not bring Cooper back he would kill him. Appellant had a controversy with one Jim Parham about a gun which he unsuccessfully attempted to take away from Parham, and then turned to Throckmorton and said: "You go get Cooper, or I'll kill you." Throckmorton protested that he did not know where Cooper was, but appellant marched Throckmorton out of the house and started with him towards the river, and cursed and abused him as he went, and he fired his pistol twice as he marched Throckmorton towards the river. Appellant does not appear to have shot Throckmorton, but the testimony strongly indicates that, after taking Throckmorton to the river bank, appellant beat him with his pistol and left him for dead, and he then returned and found Taylor and Lovewell, who testified that appellant compelled them to go with him to dispose of the body, and the three went back to the place where Throckmorton was lying, and they found he was not dead, but had regained consciousness, and he begged appellant not to kill him, but appellant seized Throckmorton's head and, by turning it and twisting it, broke Throckmorton's neck. Taylor and Lovewell assisted appellant in putting the body in the boat, and they carried it down the river about three-quarters of a mile and dumped it into the stream. Before doing so, appellant removed Throckmorton's coat and had Taylor hang it on a snag in the river, and explained that he was having this done to make it appear, if the body was found, that Throckmorton had in some way drowned himself.

A physician who held a post-mortem testified that Throckmorton was dead when the body was placed in the river and that the...