Pope v. State

• Decision Date: 08 November 1926
• Docket Number: (No. 243.)
• Parties: POPE v. STATE.
• Court: Arkansas Supreme Court

287 S.W. 747

POPE v. STATE.

(No. 243.)

Supreme Court of Arkansas.

November 8, 1926.

Rehearing Denied November 29, 1926.

Appeal from Circuit Court, Clark County; J. H. McCollum, Judge.

Ed Pope was convicted of murder in the second degree, and he appeals. Affirmed.

McMillan & McMillan, of Arkadelphia, for appellant.

H. W. Applegate, Atty. Gen., and John L. Carter and Darden Moose, Asst. Attys. Gen., for the State.

SMITH, J.

Appellant was convicted of the crime of murder in the second degree under an indictment charging him with the crime of murder in the first degree, alleged to have been committed by cutting and stabbing one Newt Nelson with a knife.

One of the errors assigned for the reversal of the judgment is that the testimony is insufficient to support a conviction for murder in any degree. This assignment of error may be answered by giving the version of the killing which Charles Anderson detailed to the jury. According to this witness, he and deceased were covering a house, when appellant walked up to where they were working, but said nothing. A stepson of the witness asked appellant if there was anything he wanted, when appellant said he wanted nothing, and walked away. Appellant went to town, and in about half an hour returned and called to deceased, and stated that he had received a letter which he wanted deceased to read to him. Deceased climbed down from the house, and proceeded to read the letter which had been written to appellant by Bill Meador, who owned the farm on which both appellant and deceased lived. The landlord resided in another county. This letter stated that the writer had been advised that appellant, who was a sharecropper, had not fairly divided the corn grown by him when he gathered it, and, when this letter was read, appellant accused deceased of writing the letter to their landlord, which had advised that appellant had not fairly divided the corn. Deceased denied writing to Mr. Meador, but appellant persisted in asserting that deceased had done so, when deceased said, "No, sir; I will swear that I did not write the letter." As deceased made this remark, appellant drew and opened his knife, and, when witness saw this, he yelled, "Run, Uncle Newt, Mr. Pope's going to cut you," and he saw Pope strike deceased in the back, and deceased ran and was soon out of the range of witness' vision. When witness saw that appellant was about to assault deceased, he commenced climbing down from the roof of the house where he was working, but before he could reach the parties the "fight," as he called it, was over, and deceased was staggering down the hill from the house, and appellant was walking rapidly away.

Surgeons who attended deceased testified that there were ten wounds on the body, one was across the right wrist, there was a cut in the thigh, one in the right side over the kidney, there were stab wounds in the breast and on the stomach, and the remainder of the wounds were in the back.

It was shown that appellant purchased on the day of the difficulty the knife with which deceased was killed. There was also testimony to the effect that there was bad blood between the men, and each had made threats against the other. We think this testimony sufficient to support the verdict returned by the jury.

The testimony on the part of appellant was to the effect that he was assaulted by deceased, and that he attempted to retire from the difficulty, and that he finally cut deceased in his necessary self-defense. But these conflicts in the testimony were, of course, questions for the jury.

It is assigned as error that the court permitted witness Dickey to make erroneous and prejudicial statements in the presence of the jury. This witness was a white man, and so is appellant, while deceased was a colored man. This witness testified that appellant had made threats of violence against deceased. He also testified that deceased was a quiet and peaceable man. The witness was cross-examined at length concerning the sources of the information upon which his opinion that deceased's reputation was good was based. He was interrogated concerning the statement which he had made to the effect that he would not believe anything bad about deceased if a dozen witnesses testified to that effect, and he was interrogated concerning the time and place when and where he had heard appellant make threats against deceased, and the witness answered that "the day before Newt was killed he came to my house — his mailbox is in front of my house, and I saw him coming up to the mailbox, and it was raining, and the mail rider happened to come along, and I called him and told him to come in, I wanted to see him, and I told him about the threats Ed had made. I says, `Watch that man, I know that man,' and I says, `He'll grab you some day and cut you all to pieces.'" Counsel for appellant objected to this answer, and stated that he had not asked the witness to relate the conversation between himself and deceased. The court inquired, "What did you ask him?" Counsel for appellant answered, "I asked him where it was he had the conversation with Ed Pope." The court then directed the witness to answer that question, and the witness replied, "I told him, judge, as near as I can where." Counsel then said: "I want to ask that this statement of the conversation with Newt be excluded," and the court replied, "Very well. It will be excluded." It is insisted that the statement of the witness, set out above, was voluntary, was not responsive to the question asked, and was highly prejudicial, and that the prejudice of the remark was not cured by the ruling of the court.

It is true, of course, that it was incompetent for the witness to detail his conversation with deceased and the advice he gave him about watching appellant, but the witness was being closely cross-examined touching threats which he had testified were made by appellant, and with the obvious purpose of discrediting the witness. The question asked by the court indicated that the court was not clear as to the scope of the question, and the answer given by the witness after the question was explained to the court by counsel indicated that the witness thought he had answered the question asked. This answer was, of course, broader than the question, and included the incompetent conversation between witness and deceased, but the entire answer was excluded upon motion of counsel for appellant that this be done. We hold, therefore, that, while the testimony...