Sanderlin v. State

• Decision Date: 06 February 1928
• Docket Number: 187
• Citation: 2 S.W.2d 11,176 Ark. 217
• Parties: SANDERLIN v. STATE
• Court: Arkansas Supreme Court

2 S.W.2d 11

176 Ark. 217

SANDERLIN v. STATE

No. 187

Supreme Court of Arkansas

February 6, 1928

Appeal from Drew Circuit Court; Turner Butler, Judge; reversed.

Judgment reversed and cause remanded.

Patrick Henry, for appellant.

H. W Applegate, Attorney General, and John L. Carter, Assistant for appellee.

OPINION

MCHANEY, J.

Appellant was indicted, charged with murder in the first degree for the killing of one Harold Robin, by stabbing and cutting him, from which he died a few hours later. On a trial he was convicted of murder in the second degree, and his punishment fixed by the jury at eighteen years in the penitentiary. The facts are substantially as follows:

A party of young people who were boarding with Mrs. Green, in Monticello, went out to the Nelson home, about six miles west of Monticello, on the Wilmar road, to attend a dance, at invitation of Miss Ouida Nelson. A number of them went on a truck. The deceased, with Gertrude and Willie Lassiter, went in a Ford sedan. Appellant, Ed Lane and Basil Boone also attended this dance, without invitation from Miss Nelson, in a Ford roadster. After the dance was over, J. A. Stith, one of the parties on the truck, heard appellant cursing, thought he was referring to him, and they had a difficulty, in which Stith knocked appellant down, and about that time Boone stuck Stith with a knife. The parties on the truck started for home, and, when they had got a short distance down the road, appellant, Lane and Boone passed them in the roadster, and said something about getting them before they got to town. Up until that time the deceased had had no difficulty with appellant or any of the others. As they drove on toward town the truck overtook the sedan in which Robin was riding with the two young ladies, who had stopped to repair a tire, or to change tires. The boys on the truck assisted Robin in repairing his tire, and, when he had started up, switched on his lights, they saw the Ford roadster stopped in the middle of the road, something like 40 or 50 feet ahead, on a culvert or narrow wooden bridge. According to the State's testimony, when Robin drove up to the roadster, Lane was out of the car, and drew a shotgun on Robin, and Stith says he jumped off the truck and asked Lane not to have any trouble, and that Lane drew the gun on him, which he grabbed, and a scuffle ensued over the gun. While they were tussling over the gun, Stith says Sanderlin ran around the car and stuck a knife in his arm, and that he turned the gun loose and ran something like 25 or 30 yards, crawled through the fence, and got behind a log, where he remained six or seven hours, until after daylight the next morning. He did not see appellant stab Robin.

Jack Fultz testified that, after Stith ran off, deceased was standing to his left, and that Lane and Boone were in front of him, and that it looked to him like appellant ran against Robin, who stepped back two or three steps, dropped to his knees, and that he asked Robin what was the matter with him, and he said "He cut me." Fultz then put Robin in his car, and Handley brought him to town.

Witnesses were permitted to testify over appellant's objection, to statements made by deceased, in the nature of dying declarations, that Sanderlin had cut him, and it is urged that these statements were not made under a sense of impending death, and therefore inadmissible. We have examined the evidence very carefully on this assignment of error, and find that there was sufficient evidence to sustain the court in overruling appellant's objection on the ground that the declarations were not made at a time when the deceased thought death was impending. Taking into consideration his expression, "If you don't hurry up and get a doctor here, I am dying," "You had better hurry up and get a doctor, I am dying," and other testimony to the effect that he said he was dying, and was cut all to pieces, together with the nature of the wound, which was a cut in the abdomen, from...