Patton v. State
| Decision Date | 30 April 1934 |
| Docket Number | Crim. 3879 |
| Citation | 70 S.W.2d 1034,189 Ark. 133 |
| Parties | PATTON v. STATE |
| Court | Arkansas Supreme Court |
Appeal from Johnson Circuit Court; A. B. Priddy, Judge; affirmed.
Judgment affirmed.
Trieber & Lasley and Frauenthal & Johnson, for appellants.
Hal L Norwood, Attorney General, and Robert F. Smith, for appellee.
Three brothers, Cleadus, John and Chelton Fields, attended a dance in a hall owned and operated by Arthur Peck. Oral and Carrol Patton, who were brothers, also attended the dance. Cleadus Fields purchased a bottle of whisky, as he supposed, from a person whom he thought was one of the Patton boys. When opened it was found that the bottle contained urine, and not whisky, whereupon Cleadus Fields approached the Patton boys and demanded the return of his money, expressing, at the same time, in rather forcible, though somewhat inelegant, terms, his opinion of the person who would play such a trick as had been played upon him. One of the Patton boys, after denying that he had made the sale, said to Fields: "If you want to live long, you had better keep your mouth shut." The parties commenced fighting. It was dark, and they were out-of-doors, and the testimony is in irreconcilable conflict as to who actually began the fight. At any rate, John Fields, who was standing by, jumped at one of the Pattons to seize a pistol which he saw the latter draw, but he failed in the attempt to seize it and was shot and killed. Peck, owner and operator of the dance hall, hearing the shooting, came to the front door to see what was happening, and was himself shot and killed as he appeared in the door. Peck lived long enough to make a dying declaration to the doctors who attended him, and they testified that in this declaration Peck stated that "When he opened the door, the Patton boy was standing just outside the door, and he just laid his hand on his shoulder and he told him to stop that, and he wheeled and shot him." Peck did not state which one of the Patton boys shot him.
Oral Patton escaped and has not been arrested. Carrol Patton was arrested the night of the shooting, and at the trial for killing Peck from which this appeal comes, the testimony offered in his behalf was to the effect that he was unarmed, and that he did none of the shooting, and that all of the shots were fired by his brother Oral. The sheriff testified that when he arrested Carrol he found him lying across a bed with his clothes on, and that he had a pistol and scabbard in the bed with him. This pistol was a .38 calibre revolver, and a deputy sheriff who assisted in making the arrest testified that he was an expert in fire arms, and that he examined the revolver at the time of the arrest and found that three chambers had been very recently fired--within less than twenty-four hours. Some .32 calibre shells were found at the place of the shooting. The deputy sheriff testified that an automatic pistol ejects the shells as fired, but that the shells must be removed from a revolver by hand. One of the doctors who attended Mr. Peck testified that the wound received by him and which caused his death appeared to have been inflicted by a hard bullet, and not a lead bullet, because the wound was not jagged or irregular, and that the wound, from its appearance, could have been inflicted by either a .32 or a .38 calibre pistol. The deputy sheriff testified also that the pistol found in Carrol's possession was loaded with two lead bullets and two copper jacket bullets, and that the latter were harder than the former and would make a less jagged wound.
These facts appear to answer the assignment of error that the testimony is insufficient to support the verdict of the jury, which imposed a sentence of ten years in the penitentiary for murder in the second degree. The evidence is sufficient to sustain the conviction upon either of two grounds, (1) that appellant may actually have fired the fatal shot, or (2), if not, that he was present, aiding, abetting and encouraging his brother in firing it. It was not questioned that one or the other did fire the fatal shot, and that they were acting in concert is sufficiently established to sustain the conviction. This is made certain by testimony to the effect that the Patton brother who fired the first shot was advised by the other to "Shoot him!" Simmons v. State, 184 Ark. 373, 42 S.W.2d 549.
In support of the motion for a new trial testimony was offered to the effect that a member of the jury had failed to pay his poll tax, and because of this failure was not a qualified elector. The verdict and the judgment pronounced thereon were not void on this account. It was held, in the case of James v. State, 68 Ark. 464, 60 S.W. 29 (to quote...
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...Speer v. State, 130 Ark. 457, 198 S.W. 113 (1914). See also 457, 198 S.W. 113 (1914). See also S.W.2d 291 (1959); Patton v. State, 189 Ark. 133, 70 S.W.2d 1034 (1934); Arnold v. State, 150 Ark. 27, 233 S.W. 818 (1921); and Fain v. Goodwin, 35 Ark. 109 (1879). In the case at bar, we cannot c......
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