Pendergrass v. State

• Court: Arkansas Supreme Court
• Writing for the Court: WOOD, J.
• Citation: Pendergrass v. State, 248 S.W. 914, 157 Ark. 364 (Ark. 1923)
• Decision Date: 05 March 1923
• Docket Number: 201
• Parties: PENDERGRASS v. STATE

248 S.W. 914

157 Ark. 364

PENDERGRASS v. STATE

No. 201

Supreme Court of Arkansas

March 5, 1923

Appeal from Logan Circuit Court, Northern District; James Cochran Judge; affirmed.

Judgment affirmed.

Robt. J. White, John H. White, W. B. Rhyne, G. C. Carter John P. Roberts, and Evans & Evans, for appellant.

1. The court erred in refusing to grant the appellant a new trial on account of the demonstration in the court room by the spectators and the deputy sheriff who selected and summoned the talesmen on the jury, and on account of the argument of the State's attorney in urging the jury to convict the appellant because of the demonstration. 108 S.E. 290; 166 Cal. 357, Ann. Cases, 1915-B, 881, and case note at p. 894; Ann. Cas. 1913-E, p. 806, case note; 112 Mo. 277, 20 S.W 461; 16 Texas Ct. App. 473, 49 Am. Rep. 826.

2. The court erred in refusing to grant a new trial on account of newly discovered evidence. 34 Ark. 632.

3. It was error to refuse a new trial on account of the misconduct and disqualification of the juror Girard. 20 R. C. L. 242-3, § 27; 41 F. 676; 12 Am. Dec. 157; 46 Ore. 342, 80 P. 660, 114 A. S. R. 873; 69 W.Va. 244, 71 S.E. 609, 50 L. R. A. (N. S.) 958, case note; 19 Ark. 156; 72 Ark. 158; 131 Ark. 404; 150 Ark. 555.

4. The court erred in its instruction on the subject of manslaughter, and in refusing to give the instructions on that subject requested by the appellant. 50 Ark. 545; 74 Ark. 460; 52 Ark. 345; Id. 45; 116 Ark. 588; 69 Ark. 134; 82 Ark. 503; 87 Ark. 281.

5. It likewise erred in failing and refusing to correctly instruct the jury on the duty of the defendant to retreat. 62 Ark. 306; 50 Ark. 545.

J. S. Utley, Attorney General, and Wm. T. Hammock, Assistant, for appellee.

1. The prompt and vigorous reprimand of the audience by the court, his directions to the sheriff and his admonition to the jury, removed any prejudice that might have resulted from the applause. 104 Ark. 162. No objections were made to the argument of the attorney based on the applause, and appellant cannot now complain. 79 Ark. 25; 84 Ark. 128; 120 Ark. 562; 125 Ark. 339; 109 Ark. 159; 120 Ark. 530; 126 Ark. 354. See also 65 Ark. 475; 95 Ark. 321; 94 Ark. 548; 100 Ark. 232.

2. There was no error in refusing to grant a new trial on account of newly discovered evidence. Such evidence, where it goes only to impeach the credibility of a witness, is not a ground for new trial. 72 Ark. 404; 90 Ark. 435; 91 Ark. 492; 96 Ark. 400; 114 Ark. 472; 99 Ark. 407. Motions for new trial on the ground of surprise or newly discovered evidence are addressed to the sound legal discretion of the trial court, and that discretion, in the absence of abuse, will not be controlled. 41 Ark. 229; 54 Ark. 364; 116 Ark. 558.

3. There was no error in refusing a new trial on account of the conduct of the juror Girard. 19 Ark. 156; 72 Ark. 158; 143 Ark. 178; 133 Ark. 16.

4. Under the testimony the defendant was guilty of murder in the first degree, or the killing was in self-defense, and therefore justifiable. Having been convicted of murder in the second degree, he cannot complain of instructions on the subject of manslaughter. 59 Ark. 431; 91 Ark. 224; 37 Ark. 238; 77 Ark. 247; 105 Ark. 367; 91 Ark. 589; 80 Ark. 495; 104 Ark. 606.

5. The court's instruction covered the subject of the duty to retreat, and it was not required to multiply instructions. 116 Ark. 588.

OPINION

WOOD, J.

On Friday, January 13, 1922, appellant shot and killed Clay McIlroy on the northeast corner of the public square in the town of Ozark, Franklin County, Arkansas. McIlroy at the time was armed with a twelve gauge choke-bore shotgun loaded with B B shot. The appellant used a small automatic pistol. On the northeast corner of the square is situated the People's Bank building. It is a two-story building, the lower story being devoted to the banking business and the upper story containing offices. The appellant, with another lawyer, had an office on the second floor. The stairway leading to the second story was immediately west of the bank building. The appellant fired the shot that killed McIlroy from this stairway. Appellant at the time was some eight or ten steps up the stairway.

A nineteen-year-old unmarried daughter of McIlroy had become pregnant and given birth to a baby on January 23, 1922, in Oklahoma City. She claimed that the appellant was the father of the child, and that she went to Oklahoma City at his suggestion and upon his promise that he would defray the expenses of the trip Miss McIlroy was staying at her home in Ozark at the time she had sexual intercourse with the appellant. After she became pregnant she notified him of her condition, but did not tell her father. Her father ascertained her condition after she reached Oklahoma City. She did not tell her father that the appellant was the author of her ruin.

It was the contention of the State that the appellant, without provocation, waylaid McIlroy and killed him at a time when the appellant was in no danger of death or great bodily harm from McIlroy. There was testimony to warrant such contention on the part of the State. On the other hand, it was the contention of appellant that McIlroy knew that his daughter had accused the appellant of being the father of her child, and that because of this McIlroy had threatened the life of the appellant and had taken his gun to the People's Bank, where he transacted his business, and had left the same there to be used by him when the opportunity presented for shooting the appellant; that the appellant had been informed of these threats of McIlroy; that on the day of the killing McIlroy saw appellant standing unarmed, as he believed, near appellant's car in front of the People's Bank; that McIlroy thereupon went and got his gun, and came out of the bank with the gun in a shooting position, and was seeking appellant to take his life; that when the appellant saw McIlroy come out of the door with the gun he left the man with whom he was talking at the edge of the sidewalk and ran up the stairway in an effort to get away from McIlroy; that he lost his footing after he had ascended eight or ten steps, and fell or sank down; that McIlroy pursued along the sidewalk in a trot or run until he came in front of the stairway with his gun in a shooting position, and just as he was in the act of bringing his gun toward the appellant to shoot, the appellant fired the fatal shot in order to save his own life. There was testimony to support this contention of the appellant, and we deem it unnecessary to set forth in detail the testimony in support of the respective contentions.

The appellant was indicted by the grand jury of Franklin County of murder in the first degree for the killing of McIlroy. The venue was changed to the Northern District of Logan County, where the trial was had, resulting in a verdict of guilty of murder in the second degree, and a judgment sentencing the appellant to imprisonment in the State Penitentiary for seven years, from which judgment is this appeal.

We will dispose of the alleged errors in the rulings of the trial court in the order in which they are presented in the brief of learned counsel for appellant.

1. The appellant contends first that the court erred in refusing a new trial on account of a demonstration in the court room by the spectators and the deputy sheriff who selected and summoned the talesmen on the jury, and on account of the argument of Hon. Steel Hays in urging the jury to convict the defendant because of the demonstration. To sustain the above assignment of error, which was made one of the grounds of the motion for a new trial, the appellant attached several affidavits. One of the affidavits stated, in substance, that he heard the argument made by Mr. Wolf, one of the attorneys for the State, and that at the close of his argument a great many persons in the audience engaged in a noisy demonstration by clapping their hands, stamping their feet, and hollering in loud voices; that he saw Guy Lipe, who was sitting on a bench near to, and in plain view, of the jury. He had his hands raised above his head, and was clapping them, and stamping his feet, and in that manner assisting and engaging in the demonstration. Lipe is the chief deputy sheriff of B. B. Foster, sheriff of Logan County. Other affiants corroborated the above statement as to the character of the demonstration in the court room.

Two of the appellant's attorneys stated, in an affidavit in support of the above ground for a new trial, that they were present and heard the argument of Steel Hays, one of the counsel for the prosecution, who stated in his argument with reference to the demonstration by the audience the following: "It was the spontaneous outburst of the honest heart of the people of this county --of your friends and neighbors."

The court put into the record the following statement: "At the conclusion of the speech of Otha Wolf, an attorney representing the State, there was a sudden outburst of applause by a small portion of the audience located near the east front door and extended to other portions of the audience, but by no means a general applause. Immediately the court rapped vigorously for order, and order was almost immediately restored. The court rebuked the crowd severely for the outburst, directed the sheriff to arrest any one whom he saw applauding and bring them before the court, and directed the sheriff, if another applause occurred, to clear the room of spectators, and admonished the jury that they must not allow the applause of the audience in any way to influence them in their verdict, and said to them that should they do so, they would be unworthy as jurors, and ought not to be allowed to sit in any case. If the Honorable Steel...