Scoggin v. State
| Decision Date | 14 July 1913 |
| Citation | 159 S.W. 211 |
| Parties | SCOGGIN v. STATE. |
| Court | Arkansas Supreme Court |
Appeal from Circuit Court, Hempstead County; Jacob M. Carter, Judge.
Ezra Scoggin was convicted of murder in the second degree, and he appeals. Affirmed.
Appellant Scoggin was indicted in the Hempstead circuit court for the crime of murder in the first degree. He was convicted of murder in the second degree, sentenced to imprisonment in the penitentiary for a period of 10 years, and has appealed to this court.
Charner Wesson, the deceased, was the father-in-law of the appellant. He was killed by the appellant in Hempstead county, Ark., in December, 1912. Appellant and his wife had separated the day before the killing, and his wife had gone to the home of her father, Charner Wesson.
The testimony, giving it its strongest probative force on behalf of the appellant, tended to show that on the morning after appellant and his wife had separated, appellant's wife, her brother and two sisters went back to the home of the appellant, and that appellant's wife engaged in a fight with one of his sisters, and after the fight she returned to her father's home. After reaching the home of her father, her brother, Forney Wesson, immediately went to meet his father, who was away from home. When the deceased returned home he immediately started on horseback to appellant's home, followed by his son and two daughters in a wagon. He reached appellant's home in advance of the wagon, and found that the appellant had started towards his father's house in a wagon loaded with potatoes. The deceased rode up in front of appellant's team, stopped them, and immediately got down, turned his mule loose, pulled off his gloves, threw them down, and began to curse and abuse the defendant. Leaving the front of the mules, he walked down by their side, using violent and insulting language towards the appellant, and cursing him, remarking that he came after the potatoes, and if he did not get them he would get something else. He caught the lines and stopped the team, threw his hand to his hip pocket as if to draw a weapon, whereupon the defendant shot him. The deceased, at the time he was shot, was about opposite the back part of the fore wheels, and the defendant was about the middle of the wagon. The shooting took place within the inclosure of the defendant. The defendant testified, in part, that deceased He further testified: "I was afraid of him, and when he started towards me I had the gun standing on my foot in one hand, and I shot him because he made an attempt; I thought he was going to do something to me; I thought he meant to kill me, and that is why I shot."
On behalf of the state, the proof tended to show that deceased went to the defendant's home for the purpose of getting some potatoes and chickens for his daughter; that he went to defendant's to ask whether or not he wanted his wife, deceased's daughter, to have part of the potatoes, and said that if defendant did not want her to have them, he would just leave them alone and go back. Deceased went horseback, and at the time he was shot he was near defendant's house. Deceased had dismounted, and was about 10 feet from defendant's wagon, and seemed to be talking to him, and had said a few words before the shot was fired. He had not turned his horse loose, but was holding the rein with his left hand, and was not doing anything with his right hand. About the time the defendant shot, the deceased threw up both hands. The shot entered his right hand, tearing same almost off. There were also a few shot in the left hand. There were also some in his face, over his right eye, in the eye, and up to his hair; part of it went over the right eye, and in the eye, and up to the hair. The principal part of the load entered just over his right eye and in his eye. He had a few shot in his left hand about his wrist and thumb. The nature of the wounds indicated that the deceased was standing in front of the defendant, facing him.
The court permitted witness Turner Rogers to testify, over defendant's objections, to a conversation he had with the deceased on Sunday after the shooting. Witness stated that he left his home between daylight and sunup, and that he lived about a quarter of a mile from deceased; that no one was present but witness and the deceased when the deceased told him about how the shooting occurred. The deceased told him that he would not get well, and told witness that he "went up there to see Ezra to straighten up this little difference between him and his wife." He said he The court refused, over appellant's objection, to permit testimony tending to show the feeling existing between deceased and defendant's people prior to the killing, and testimony about the fight between defendant's wife and his sister on the morning of the shooting, and also refused to allow testimony that the deceased had a pistol prior to the killing. Appellant duly excepted.
The court, among others, gave the following instruction: The killing being proved, the burden of proving circumstances of mitigation that justify or excuse the homicide shall devolve on the accused, unless by proof on the part of the prosecution it is sufficiently manifest that the offense only amounted to manslaughter, or that the accused was justified or excused in committing homicide.
Other facts stated in the opinion.
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Fulbright v. State
... ... declarations. Underhill on Criminal Evidence, § 172 ... Greenleaf on Evidence, (16 ed.) § 158; [189 Ark. 640] ... Sanderlin v. State, 176 Ark. 217, 2 S.W.2d ... 11; Alford v. State, 161 Ark. 256, 255 S.W ... 884; Evans v. State, 58 Ark. 47, 22 S.W ... 1026; Scoggin v. State, 109 Ark. 510, 159 ... S.W. 211 ... Weakley ... v. State, 168 Ark. 1087, 273 S.W. 374, in no wise ... conflicts with the views here expressed. There the wound was ... in the leg, and no fact or circumstance was offered in ... evidence showing or tending to show ... ...