Sellers v. State

• Decision Date: 21 June 1909
• Citation: 120 S.W. 840,91 Ark. 175
• Parties: SELLERS v. STATE
• Court: Arkansas Supreme Court

120 S.W. 840

91 Ark. 175

SELLERS v. STATE

Supreme Court of Arkansas

June 21, 1909

Appeal from Saline Circuit Court; William H. Evans, Judge; reversed.

STATEMENT BY THE COURT.

The appellant was indicted for the crime of murder in the first degree, was tried and convicted of voluntary manslaughter. Appellant killed one Bus Lawhorn in Saline County, Arkansas April 13, 1908. Lawhorn was living with his mother on her farm, and appellant was a tenant. On the late afternoon before the tragedy, appellant and Mrs. Lawhorn had a quarrel about supplies. The next morning appellant with one Dowdy went to Mrs. Lawhorn's, and she describes what there took place as follows:

"They went into the lot in the usual way and started to catch the mules to go to plowing. My son told Mr Sellers that it was too wet to plow. Mr. Sellers made some reply, I do not know what, and my son again told him that it was too wet to plow, and they began cursing each other. My son rushed toward the lot gate toward Mr. Sellers, when Mr. Sellers drew a pistol and fired at my son. My son threw his hands to his breast and bent forward, and just as he straightened up the defendant shot at him again. There were but four shots fired. After the first shot Mr. Sellers stooped down by the fence and continued firing. My son was killed and fell just on the inside of the yard. My son had no pistol, and did no firing."

Other witnesses for the State, who were not present but heard the firing, and who were on the ground immediately after the killing, described the condition of the body, wounds, etc and the bullet marks left on the plank and post of the fence.

The record shows the following: Witness Ed Reymo testified as follows: "I am a photographer. I was employed to make photographs showing the situation of the premises where Bus Lawhorn was killed. These photographs were the ones that I took. (Here the defendant objects to the photographs being introduced in the evidence.) I was employed by the relatives of the deceased to take these pictures. The defendant was not present, and had no representative there. I was not present at the killing, and did not know about the situation except as I was told. After taking the pictures I retouched them that is I marked them with pencil so that they would show more plainly the marks on the fence and the bullet hole in the post. In some instances I retouched the bullet holes, that is, painted them with my pencil before taking the pictures, and in another instance we retouched the picture after it was made. (The court overrules the objection of the defendant as to the pictures and permits pictures marked "A," "B" and "C" to be introduced in evidence and to be considered with the other evidence to show the location in this case where it is alleged that the killing occurred, the position that it is claimed by the State that the parties were at the time, to which ruling of the court the defendant at the time excepted and asked that his exceptions be noted of record, which was accordingly done.) These pictures were taken sometime after the killing occurred. I do not know just how long. The pictures show the marks that were on the fence there at the time. Also the bullet hole in the post. (Defendant asked to have this evidence of the witness, as well as the pictures themselves, excluded from the jury, which was overruled by the court, to which the defendant excepted, and asked that his exceptions be noted of record, which was accordingly done.)"

On behalf of appellant witness Dowdy, who was present when appellant and Mrs. Lawhorn had the quarrel the day before the killing and also at the time of the killing, testified that Mrs. Lawhorn said to appellant in the quarrel that "he was trifling and worthless, and that she would have her sons kill him before the sun was two hours high next morning." He then proceeds in part as follows: The next morning Mr. Sellers and I went up to Mrs. Lawhorn's to go plowing. We entered the lot on the east side at the gate where we usually went in. We had started to catch the mules. I was a little way ahead of Mr. Sellers, and as we started to catch the mules Bus Lawhorn said it was too wet to plow. Mr. Sellers did not seem to understand what he said, and asked him what he said, and he said that it was too wet to plow, and began cursing Mr. Sellers, and ran toward him and threw the lot gate open and fired twice at Mr. Sellers. Mr. Sellers did not see him when he first threw the pistol on him, and I called Mr. Sellers's attention to it, and told him to look out there, and just as he looked around Bus Lawhorn fired. Fired twice in rapid succession, and then Mr. Sellers ran up to him and begged him to stop shooting. Mr. Sellers pushed him back into the yard and then stooped down behind the fence, or rather the gate post, and the deceased stuck his pistol around the gate post as though he were going to shoot at Sellers again. At that time Mr. Sellers began shooting and there were several shots fired. I do not know just how many. After the last shot Bus Lawhorn fell inside of the yard, and when he fell he dropped his pistol."

The appellant's testimony as to the circumstances of the killing is substantially the same as that of witness Dowdy.

Reversed and cause remanded.

W. R. Donham, for appellant.

The court erred in admitting the photographs in evidence. 75 Miss. 721; 23 So. 710. There was no evidence showing they truly represented the objects and situation portrayed. They prejudiced the minds of the jury.

Hal L. Norwood, Attorney General, C. A. Cunningham, Assistant, and Frank Pace, for appellee.

1. As a general rule, photographs are admissible when shown to be accurate and correct representations of the matter in controversy and throw light on it. 9 Enc. of Ev., 771; Wharton's Cr. Ev., (8 Ed.) § 544; 118 Mass. 420; 31 Wis. 512; Underhill, Cr. Ev., 62; 149 N.Y. 580; 126 Mo. 597; 48 P. 75; 162 U.S. 613.

2. They were not prejudicial. They imparted to the jury a view of the premises and the physical evidences of the conflict. 83 Ga. 92 (9 S.E. 768); 126 Mo. 597 (29 S.W. 577); 111 N.Y. 362 (19 N.E. 54); Underhill, Cr. Ev., 64.

OPINION

WOOD, J., (after stating the facts).

The evidence adduced by appellee tends to show that appellant fired upon Lawhorn as the latter rushed toward appellant, and that appellant stooped down behind the fence and continued firing at him; that Lawhorn was unarmed, and threw his hands to his breast and bent forward at the first shot, and as he straightened up appellant fired again and again till he had fired four shots. The evidence on behalf of appellant tended to prove that Lawhorn drew his pistol when appellant did not see him draw it, and ran...