Slim And Shorty v. State

• Decision Date: 08 May 1916
• Docket Number: 380
• Citation: 186 S.W. 308,123 Ark. 583
• Parties: SLIM AND SHORTY v. STATE
• Court: Arkansas Supreme Court

186 S.W. 308

123 Ark. 583

SLIM AND SHORTY v. STATE

No. 380

Supreme Court of Arkansas

May 8, 1916

Appeal from Little River Circuit Court; Jefferson T. Cowling, Judge reversed in part; affirmed in part.

STATEMENT BY THE COURT.

Appellants were indicted jointly for the crime of an assault with intent to kill. They were also jointly indicted for the crime of resisting an officer. By consent the causes were tried together. Appellants were both convicted on the charge of resisting an officer, and appellant Shorty was convicted of an assault with intent to kill. From these convictions appellants have duly prosecuted this appeal.

The facts are substantially as follows: Robert Pierce, a deputy sheriff of Little River County, had information to the effect that there were two men coming in on a certain train who were suspected as being men who figured in the holdup of train No 1 at Rich Mountain. He was requested by an official of the Kansas City Road to meet the train and take off the men. Pierce went to meet the train on which he was informed that these men were traveling and was told by the conductor that they had gotten off a few miles back. Pierce and two other deputies then went in an automobile to capture the men. When they had proceeded about two and a half miles they met the men and the driver of the car stopped for them to get out. The driver of the car ran within from six to ten feet of the men and stopped the car, when Pierce said, speaking to the men, "Boys, we want you; put up your hands." The men started for their guns. Pierce asked them not to pull their guns. Pierce saw that one could not get his gun out as it was hung, and told one of the deputies to watch that man (who was called Slim). The other man (called Shorty) was pulling his gun and Pierce asked him not to pull it, but he reached around and caught hold of it with his left hand and jerked his gun out with his right hand, and when he did that the gun came in a certain position (which witness Pierce indicated) and Pierce then fired. Pierce told Shorty not to pull his gun, that if he did he would kill him, but Shorty did not heed the request, but jerked his gun and it came out in the position indicated by the witness, when Pierce fired. Shorty was pointing his gun right at the face of another deputy named Finley. Finley and Pierce fired about the same time. When they fired Shorty fell. Pierce then wheeled around to look at Slim, and at that time his hands were going up and his gun fell out in front of him. Pierce then turned to see what Shorty was doing. He sat up and looked at his gun. While Shorty was attempting to draw his gun he was gritting his teeth.

Slim and Shorty were searched. They had a box of cayenne pepper nearly a full box of cartridges, a mask, whistles and rings, and two pistols. One of the pistols was a 38 Special and the other a 41 Special. Both were loaded. Shorty was shot, and in a conversation with him Pierce remarked that he regretted that it happened, but told Shorty that he was to blame for it. Shorty said, "Yes, you had it to do all right." Shorty refused to give any name. At the time he refused to give his name he was shot and in a very critical condition, not in much shape to talk. Neither of the appellants had given witness Pierce their names. The officers were looking for train robbers, and it had been reported to them that they had bad men to contend with. Pierce kept hallooing at Shorty to throw up his gun or he would kill him, but Shorty continued to pull it until he got it out and had it pointed right at Finley's face, when both Pierce and Finley fired.

Appellant Slim was a witness and testified that his real name was Willie Willis. While he was being cross-examined by the prosecuting attorney in regard to Shorty's name, the record shows that he did not answer the questions readily and his attorney, Mr. Morrell, who was standing, objected to the questions being propounded by the prosecuting attorney, whereupon the court remarked: "Sit down, Mr. Morrell. The witness is able to take care of himself." To which remarks of the court appellant excepted. While the witness was being further interrogated the court remarked: "You took an oath awhile ago to tell the truth, the whole truth and nothing but the truth. You must answer." To which remarks of the court the appellants excepted.

Appellant Slim testified that he did not refuse to give his name; that he had worked with Shorty for six weeks and had been with him four or five days before they were arrested, and that he had not found out anything more about his name than that he was named Shorty; that he could not swear to Shorty's real name. He testified that he did not know that the men who arrested them were officers; that they did not advise him that they were officers; that he put his hands up when they told him to do so and did not intend to resist them.

Appellants contend that the court erred in giving certain instructions, which we will comment upon in the opinion.

Judgment affirmed in part, reversed in part and cause dismissed.

June R. Morrell, for appellants.

1. The verdict is contrary to the evidence. The officers did not comply with Kirby's Digest, § 2124. Appellants were not advised that they were officers, nor of the offense charged.

2. There was error in admitting testimony as to what was found on appellants and their refusal to give their names, etc.

3. The court erred in its remarks to counsel and in refusing to hear objections to improper cross-examination. 83 Ark. 379; 90 S.W. 933; 51 Id. 149; 27 Cal. 300.

4. The court erred in its instructions and in giving additional instructions after the jury retired.

Wallace Davis, Attorney General, Hamilton Moses, Assistant, for appellee.

1. The verdict is responsive to the evidence. The words used by the officers could convey no other meaning than that they were arrested by officers for crime. This was for the jury. 49 Ark. 453.

2. It was not error to admit the testimony as to what was found on appellants and their refusal to give their names. 84 Ark 119; 72 Ark. 598; 1 Greenl., Ev., § 53; 1 Bishop on Crim Pro., § 1126; 46 Ark. 141; 56 Id. 4; 58 Id. 513; 66 Id. 53.

3. There was no error in the remarks of the court, or in the refusal to sustain objections to alleged improper cross-examination. 71 Ark. 65; 85 Id. 179; 84 Id. 87.

4. There is no error in the instructions. 21 Ark. 357; 58 Id. 353; 24 Id. 264; 64 Id. 247; 66 Id. 588, 601; 82 Id. 64; 78 Id. 147; 85 Id. 179; 74 Id. 377; 77 Id. 97.

5. The court did not err in giving additional instructions after the jury had retired. 102 Ark. 506; 79 Id. 53.

OPINION

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

I. Section 2124 of Kirby's Digest requires an officer making an arrest to inform the person about to be arrested of the intention to arrest him and of the offense charged against him for which he is arrested. Appellants contend that the evidence is not sufficient to show that the officers complied with these requirements.

The testimony was sufficient to warrant the court in submitting to the jury the issue of fact as to whether or not appellants were advised by the language used by the officers in making the arrest of their official character. The testimony shows that the officer said to the appellants "Boys, we want you; put up your hands." This language was sufficient to convey to the appellants the idea that they were being arrested by officers. At least the jury were justified in so finding. The officers' posse were in an automobile and it was in daylight and on the public highway, and there was nothing in the mode of conveyance or the manner in which appellants were approached by the officers to indicate that the latter were attempting to hold up appellants for the purpose of robbery or other unlawful detention. The language used was such as officers might be reasonably expected to use in arresting criminals. The officers had been informed that the appellants were dangerous men, and the facts show that at the time the arrest was made the officers did not have time to announce the fact that they were officers before the arrest was made and to formally notify them of the offense for which they were being arrested.

If the officers, addressing the appellants, had said: "Boys, we want to arrest you; we have a warrant for you," or "Boys, we want to arrest you, " there could be no doubt that such language would have been sufficient to advise appellants of the official character of the parties making the arrest. The language, "Boys, we want you," was but tantamount to the expressions used above.

The issue as to whether appellants knew that the parties making the arrest were officers was, under the evidence, one for the jury. See Putman v. State, 49 Ark. 449, 5 S.W. 715.

In a conversation between Shorty, one of the appellants, and Pierce, Pierce stated that he regretted that he had to shoot Shorty and told Shorty that he was to blame for it, whereupon Shorty replied "Yes, you had it to do." This language of itself shows at least that appellant Shorty knew that Pierce was an officer.

The statute authorizes an arrest by a peace officer without a warrant where he has reasonable grounds for believing that the person arrested has committed a felony. The appellants were convicted under section 1962 of Kirby's Digest, which makes it a felony for any person to resist the execution of any criminal process by threatening to draw or by actually drawing a pistol upon the sheriff or other officer authorized to execute process.

There is conflict in the testimony as to whether or not the appellant Slim threatened to draw or actually drew his pistol. Pierce testified that the men started for their guns and that he saw that one could not get his gun out as it...