Scott v. State
| Decision Date | 22 April 1905 |
| Citation | 86 S.W. 1004,75 Ark. 142 |
| Parties | SCOTT v. STATE |
| Court | Arkansas Supreme Court |
Appeals from Monroe Circuit Court GEORGE M. CHAPLINE, Judge.
Affirmed.
Judgment affirmed.
H. A. & J. R. Parker, for appellant.
The impeachment of the State's own witnesses by the State was error. 18 Ark. 593; 3 Rice, Ev. § 2185. It was error to refuse to instruct on the question of threats. 69 Ark. 148; McClain, Crim. Law, §§ 307, 418, 423. Leading questions were improperly asked in rebuttal. 20 Wend. 235; 1 Hill, 301; 2 Car. & P. 415. The charge as to the credibility of witnesses was improper. 68 Ark. 336. The admissions of the deceased on the night he was shot should have been admitted in evidence. 70 Ark. 558, 542; 63 Ark. 382. Instructions Nos 1 and 3 requested by the defendant should have been given. 79 Pa. 311; 71 Ill. 25; 74 Ill. 230.
Robert L. Rogers, Attorney General, for appellee.
The law of self-defense was fairly submitted to the jury. 47 Ark 543; 1 Bish. New Crim. Law, 524; 73 Ark. 568.
On a plantation five miles from Clarendon in Monroe County there was a church festival and a dance, and for the further pleasure of the guests a "crap game" was opened about two hundred yards from the scene of the other festivities, in a "slash." The appellant Scott, Charles Bailey, Grant Cotton, Ed Smith and other negroes were participants in the game. An altercation arose between Bailey and Scott, in which they "passed the lie" and other complimentary terms, and made conflicting statements as to who could whip the other. Bailey tried to borrow a pistol from Ed Smith, and, on being refused, commenced searching Smith for a pistol, and scuffling with him, seemingly to take a pistol from him. While this was in progress, Scott commenced shooting, and shot four or five times. Bailey was wounded, and Cotton, who was not involved in this altercation, was killed. Scott was indicted for the murder of Cotton, and for assault with intent to kill Bailey. He was convicted of involuntary manslaughter in the murder case, and on the other indictment as charged, and sentenced to one year in the penitentiary in each case, and has appealed both cases.
As the evidence and the instructions were practically the same in each case, the latter varying only to cover the differences in the charges, the cases will be discussed as one.
1. The first point made is that the venue was not proved. Counsel is mistaken in the record. In both cases Charles Bailey located the "crap game" on Fred Allen's place, five miles east of Clarendon, in Monroe County. Had he only located it five miles east of Clarendon, as counsel assume, it would have been sufficient, as the court would take judicial cognizance that such a point is within Monroe County. Forehand v. State, 53 Ark. 46.
2. Complaint is made of the demeanor of the prosecuting attorney towards some of the witnesses, and in asking leading questions and other similar matters.
The appearance of witnesses on the stand, their demeanor, even the tone of voice or a look may indicate evasions and prevarications, justifying leading questions, and excusing remarks otherwise highly improper. These matters, from their very nature, cannot be reviewed in an appellate court, with a full understanding of the actual occurrences, and therefore the law wisely leaves them to the sound discretion of the presiding judge, and it is only for abuses of such discretion in ruling upon matters incidental to the conduct of an examination of a witness that reversals are had, and no abuse is shown here, and the verdicts do not give evidence of any prejudice.
3. Complaint is made that the court did not give an instruction on the force and effect of threats, and appeal is made to the rule in Bell v. State, 69 Ark. 148, 61 S.W. 918. That was as to previous threats, and the court held it competent to prove previous threats made by the deceased, as tending to prove who was the aggressor. There was no offer to prove threats previous to this difficulty, which was suddenly aroused at a "crap" table, and the only threats shown in the case were those introductory to the shooting, and the court properly instructed "that words, however opprobrious they may be, do not justify an assault." The court might have gone further, and instructed that words, however violent, do not justify an assault, and are not even sufficient provocation to reduce the grade from murder to manslaughter. Vance v. State, 70 Ark. 272, 68 S.W. 37. The appellant has no cause of complaint on this score.
4. In the murder case the defendant offered to prove by several witnesses that Cotton said before he died that he had accidentally shot himself No attempt was made to prove that such statement was made under apprehension of impending death from the injury received. This is a prerequisite to the admission of such a statement in any case of dying declarations. Dunn v. State, 2 Ark. 229; Evans v. State, 58 Ark. 47, 22 S.W. 1026.
This essential being lacking, whether it was otherwise admissible in such a case as this one need not be...
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Wheatley v. State
... ... 938; ... Pratt v. State, 75 Ark. 350, 352, 353, 87 ... S.W. 651 ... Mere ... words, however opprobious they may be, will not justify an ... assault, or reduce homicide from the grade of murder to ... manslaughter (Vance v. State, 70 Ark. 272, ... 277, 68 S.W. 37; Scott v. State, 75 Ark ... 142, 144, 86 S.W. 1004); and will not preclude the one ... speaking them from acting in self-defense, ... [125 S.W. 416] ... unless he used them for the purpose of bringing on an attack ... and an opportunity of killing the party thereby provoked or ... to do him great ... ...
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McGarrah v. State, 4605
...is a question that has been considered in many of our cases, a few of which are: Ringer v. State, 74 Ark. 262, 85 S.W. 410; Scott v. State, 75 Ark. 142, 86 S.W. 1004; Edwards v. State, 110 Ark. 590, 163 S.W. 155; McGough v. State, 119 Ark. 57, 177 S.W. 398; Black v. State, 171 Ark. 307, 284......
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