Patrick v. State

• Decision Date: 13 January 1969
• Docket Number: No. 5389,5389
• Citation: Patrick v. State, 436 S.W.2d 275, 245 Ark. 923 (Ark. 1969)
• Parties: Russell PATRICK, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 275

436 S.W.2d 275

245 Ark. 923

Russell PATRICK, Appellant, v. STATE of Arkansas, Appellee.

No. 5389.

Supreme Court of Arkansas.

Jan. 13, 1969.

Rehearing Denied Feb. 17, 1969.

Clark, Clark & Clark, Conway, for appellant.

Joe Purcell, Atty. Gen., Little Rock, Don Langston, Asst. Atty. Gen., for appellee.

GEORGE ROSE SMITH, Justice.

The appellant, charged with the murder of J. F. Wilson, appeals from a verdict and judgment finding him guilty of voluntary manslaughter and sentencing him to two years imprisonment. He argues several points for reversal.

It is first insisted that the court should not have submitted the issue of voluntary manslaughter to the jury, because even if it be assumed that Patrick shot Wilson, there is no proof that he acted upon a sudden heat of irresistible passion. Ark.Stat.Ann. § 41--2208 (Repl.1964). We have held, however, that the accused cannot complain of such a charge if the proof would have supported a finding that he was guilty of a higher degree of homicide than that for which he was convicted. Trammell v. State, 193 Ark. 21, 97 S.W.2d 902 (1936). Hence the question is whether the evidence would have supported a conviction for murder.

We hold that it would. Wilson was 76 and Patrick almost 79 on the day of the shooting, August 11, 1967. They were living on adjoining properties on a county road in the Beckett Mountain community in Faulkner county. Wilson's widow testified that at about 7:00 a.m. her husband went down to the barn to milk. Upon hearing a loud report from a gun, followed by the barking of the Wilsons' dog, Mrs. Wilson ran down to the corral and found her husband on the ground, covered with blood. On the way down she had seen Patrick walking toward his own house, carrying a long gun. When Mrs. Wilson reached her husband, he said, 'The old man shot me. Why did he do it?'

Wilson was taken to the hospital in an ambulance, and the sheriff was called. Deputy sheriff Joe Martin, state police officer Bill Mitchell, and deputy prosecuting attorney Lynn McClinton answered the call. They had been told by radio that Patrick had shot Wilson. Patrick turned over a shotgun and a rifle to the officers, saying that he had used the shotgun that morning to fire at a hawk in a tree. Wilson died in a Little Rock hospital on September 28. The cause of death was a shotgun wound that severed his spine. The court admitted in evidence a dying declaration in which Wilson said that Patrick shot him.

Upon the testimony as a whole the jury could have found that Patrick deliberately shot his neighbor. He was admittedly at the scene, armed with a shotgun that was fired at about the time Wilson was shot. There is no indication that any other possible assailant was in the vicinity, the next nearest house being a quarter of a mile away. Wilson said at least twice that it was Patrick who shot him.

Defense counsel argue here, as they doubtless did to the jury, that there was no reason for Patrick to shoot Wilson. There is proof that the Wilsons and the Patricks had been on friendly terms, though there is some indication that ill feeling had arisen from Patrick's belief that Wilson had poisoned a bull belonging to Patrick. In any event, the State was not required to prove a motive for the homicide. Avey v. State, 149 Ark. 642, 233 S.W. 765 (1921). Lack of motive was merely a circumstance to be considered by the jury in reaching its verdict, which is conclusive upon the issue of guilt or innocence.

The State introduced three shotgun pellets that were taken from Wilson's body. A surgeon testified that a fourth pellet, which lodged in the neck, was the cause of death, but that pellet was not recovered at the autopsy. Counsel now contend that the three pellets were inadmissible, not only because they did not inflict the fatal wound but also because they could not be ballistically identified as having been fired from any particular shotgun--especially Patrick's.

That argument goes to the persuasive force of the evidence, not to its admissibility. The...