Robertson v. State, CR
| Decision Date | 08 April 1974 |
| Docket Number | No. CR,CR |
| Citation | 507 S.W.2d 513,256 Ark. 366 |
| Parties | James Ray ROBERTSON, Appellant, v. STATE of Arkansas, Appellee. 73--145. |
| Court | Arkansas Supreme Court |
Johnson & Johnson by Cecil E. Johnson, Jr., Ashdown, for appellant.
Jim Guy Tucker, Atty. Gen. by Richard Mattison, Asst. Atty. Gen., Little Rock, for appellee.
James Ray Robertson was convicted of first degree murder and sentenced to life imprisonment. Court-appointed counsel filed a brief in which he listed five points for reversal. Appellant sought to have his counsel dismissed and prayed that he be permitted to file his own brief. We did not discharge counsel but we did permit appellant to file a brief purportedly drafted by him. He lists seven points for reversal. Also, in accordance with Act 333 of 1971, Ark.Stat.Ann. § 43--2725 (Supp.1973), we have reviewed all objections made by appellant during the course of the trial to determine whether there were prejudicial errors in the rulings on those objections. See Rorie v. State, 215 Ark. 282, 220 S.W.2d 421 (1949).
It would serve no useful purpose to recite an abstract of all the evidence. Viewed in the light most favorable to the State, as we must do, the evidence overwhelmingly showed that on the night of March 23, 1973, a party was in progress at a place of business commonly known as 'The Cafe' in Ogden; that beer was being freely consumed by some of the many patrons, including appellant; that at the time appellant approached the cafe there were a considerable number of people gathered outside witnessing a scuffle between two friends, David Lee Grimes and Willie Walker; that appellant turned away and as he started for his car, made a remark to the effect he would stop the scuffle when he returned; that within minutes he returned to the scene and fired a shot in the air; and that he then 'leveled down' on David Lee Grimes, who was backing away, and fired a fatal shot into Grimes' forehead. Some of the other evidence will necessarily be referred to in discussing the many points for reversal.
In the brief filed by appellant's counsel there are five points for reversal. The first point is that as a matter of law the court should not have submitted to the jury the question of first degree murder. It is urged that 'there is lack of evidence on the part of the State to show malice, willful, deliberate, premeditated killing, or specific intent to kill the deceased'. The State's evidence related that appellant frequently engaged in target practice with a pistol; that shortly before the homicide appellant made the statement that he was 'going to shoot me somebody before the night is over'; that appellant shot once in the air and then shouted 'I take him', whereupon appellant 'leveled down' on the deceased, who was unarmed. That evidence, along with other factors which could be enumerated, was certainly sufficient to support a finding of a willful, deliberate, malicious, and premeditated killing. Seward v. State, 228 Ark. 712, 310 S.W.2d 239 (1958). The necessary elements of premeditation and deliveration may be inferred when the circumstances clearly warrant such an inference. Walker v. State, 241 Ark. 300, 408 S.W.2d 905 (1966). Appellant strongly urges that there was no showing of ill will between appellant and deceased, hence he concludes there could be no malice. A showing of ill will for the deceased was not necessary. In the sudden killing of a human being with a deadly weapon and without provocation, malice may be implied. McAdams v. State, 25 Ark. 405 (1869).
Appellant next contends that the verdict of guilty of first degree murder was contrary to the evidence. We do not agree. Numerous eye witnesses testified that they saw appellant shoot David Grimes with a pistol. The autopsy showed that death was caused by a pistol wound. One witness testified that appellant was heard to say he was going to shoot someone that night. A number of witnesses testified that Grimes did not provoke appellant, and that Grimes in fact backed away when appellant fired the first shot in the air. Appellant gave Sheriff Thrash the pistol with which Grimes was shot when the sheriff asked for the death weapon.
The third point advanced is that the court erred in not giving an instruction on involuntary manslaughter. There is no merit in this argument. 'Any supposed error for failure to charge as to involuntary manslaughter was rendered harmless by the fact that the jury convicted...
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