Powell v. State
| Citation | 210 S.W.2d 909,213 Ark. 442 |
| Decision Date | 10 May 1948 |
| Docket Number | 4497 |
| Parties | Powell v. State |
| Court | Supreme Court of Arkansas |
Appeal from Miller Circuit Court; Dexter Bush, Judge.
Affirmed.
Shaver Stewart & Jones and Bert B. Larey, for appellant.
Guy E. Williams, Attorney General, and Oscar E Ellis, Assistant Attorney General, for appellee.
Appellant was put to trial under an information charging him with the crime of murder in the first degree, alleged to have been committed by shooting and killing one Andrew A. Ellis. A verdict was returned finding him guilty of murder in the second degree, and fixing his punishment at twenty-one years in the penitentiary, and from the judgment pronounced on that verdict is this appeal.
Many exceptions were saved during the progress of the trial, but the only one seriously insisted upon for the reversal of the judgment is that the testimony is insufficient to sustain the verdict or to warrant a conviction of any higher degree of homicide than voluntary manslaughter, and we are asked to reduce the punishment accordingly. Our authority to grant this relief in a proper case was recognized in the case of Blake v. State, 186 Ark. 77, 52 S.W.2d 644, and in numerous cases there cited to the same effect. The testimony is sharply conflicting in many essential respects as several, at least, of the witnesses were partisans of the State or of the appellant, but we must of course give the testimony tending to support the verdict its highest probative value.
There was operated near the City of Texarkana, a beer and dance hall, where appellant had been employed for five months before the killing. He was armed with both a pistol, which he carried in a holster, and a blackjack, which he carried in his pocket. No authority for wearing these weapons was shown, or claimed, and their ostensible purpose was to preserve order in the dance hall.
Deceased escorted a young woman to the dance hall on the night of the killing and they, as well as appellant, appeared to be drinking beer rather freely before the altercation arose which terminated in the killing. About midnight, when the beer had begun to have its effect, two young women began to dance what several witnesses referred to as a vulgar dance. Another young woman who took up the tickets, went to the dancing couple and ordered them to desist. The order was not obeyed and an argument arose, hearing which the deceased made himself a party to the controversy, and as the argument became more acrimonious, appellant appeared and ordered deceased to sit down. Appellant was knocked down and the testimony is in dispute as to whether deceased knocked him down with a beer bottle or with his fist, but it is not questioned that he did knock appellant down. The proprietor appeared and a scuffle ensued in which proprietor, appellant and deceased were all piled up on the floor. According to appellant he was knocked down a second time and his blackjack taken out of his pocket, and he was beaten in the face with it. The proprietor testified that he too was knocked down by the deceased, who was shown to be a large and very powerful young man, and while he was in the pile on the floor, deceased beat the proprietor with a blackjack. Witnesses for the State testified that they saw no use made of the blackjack.
The combatants were finally separated and when appellant arose he drew his pistol and began firing it. The first shot does not appear to have been directed at anyone. When deceased saw appellant's pistol he began to retreat, according to the State's testimony, and as appellant advanced, deceased raised his hands and said several times "Don't shoot," during all of which time he was backing towards the wall of the building.
The insistence for the modification of the judgment is that the recited testimony shows a killing in the heat of a sudden passion induced by provocation apparently irresistible and without...
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Johnson v. State
...that in determining sufficiency we must give the testimony tending to support the verdict its highest probative value. Powell v. State, 213 Ark. 442, 210 S.W.2d 909. When measured by this rule, the evidence here was sufficient to support the conviction of murder in the second Subsequent to ......
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Oliver v. State, 4823
...has many times held that it would give the testimony tending to support the verdict its highest probative value. See Powell v. State, 213 Ark. 442, 210 S.W.2d 909; Everett v. State, 213 Ark. 470, 210 S.W.2d In his brief, the appellant alleges that the court erred in giving State's instructi......
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Rolax v. State, CA
...on the fourth floor except the witness and the defendant. Giving these circumstances the "highest probative value" (Powell v. State, 213 Ark. 442, 210 S.W.2d 909 (1948)), leads to the conclusion that the conviction is founded on sufficient evidence and should not be The rule is well settled......
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Jones v. State, 4842
...as in this case, this Court will give the testimony tending to support the verdict its highest probative value. Powell v. State, 213 Ark. 442, 210 S.W.2d 909. The appellant contends that the trial court erred in failing to direct a verdict for acquittal. It is not error for the court to ref......