Smith v. State

• Decision Date: 10 May 1943
• Docket Number: 4283
• Citation: 170 S.W.2d 1001,205 Ark. 833
• Parties: SMITH v. STATE
• Court: Arkansas Supreme Court

170 S.W.2d 1001

205 Ark. 833

SMITH v. STATE

4283

Supreme Court of Arkansas

May 10, 1943

Appeal from Pulaski Circuit Court, First Division; Gus Fulk, Judge affirmed.

Judgment affirmed.

Guy E Williams, Attorney General, and Earl N. Williams, Assistant Attorney General, for appellee.

OPINION

ROBINS, J.

Appellant was indicted by the grand jury of Pulaski county on a charge of murder in the first degree for the killing of Damon Stubblefield on July 12, 1942, and from a conviction of voluntary manslaughter and sentence of confinement for two years in the state penitentiary he has appealed. No brief on behalf of appellant has been filed in this court.

In his motion for new trial appellant challenged the correctness of the judgment of the lower court on the following grounds:

1. That the verdict was contrary to the law and evidence.

2. That the court erred in refusing to permit appellant's witness, Elbert Boyd, to testify as to statements made to him by appellant at the time of the killing.

3. That the verdict of the jury was influenced by the court in certain statements made to the jury by the court after the jury had retired and had reported a disagreement.

4. That the court erred in denying appellant a right to challenge J. H. Dimmett as a juror for cause.

5. That the court erred in publicly thanking the grand jury for their courage in returning the indictment upon which appellant went to trial.

6. That the court should have granted a new trial to appellant on the ground of newly-discovered testimony.

These assignments of error will be considered in the order set forth above.

1. Stubblefield was killed on the highway in front of the Last Chance Tavern, located about twelve miles west of Little Rock, which was owned by appellant, but at the time was being operated for appellant by Tyler. Stubblefield, in company with his fiancee and her sister, a married woman, drove out to the tavern in an automobile. Not long after their arrival Stubblefield decided to go across the highway. Smith, who was not at the tavern when Stubblefield arrived, came up in a car about the time Stubblefield started across the road. Appellant testified that his attention was attracted by Stubblefield's boisterous conduct and by the fact that Stubblefield had apparently fallen down in the highway, and that he went to Stubblefield's assistance, whereupon Stubblefield attacked him with a knife, and that appellant then picked up an iron tire tool, which happened to be lying beside the road, and struck Stubblefield about the hands with this tire tool in an effort to defend himself. Appellant denied striking Stubblefield on the head. But witnesses on behalf of the state testified that at the time appellant began striking Stubblefield, Stubblefield was not armed and was not making any assault upon appellant. These witnesses stated that Stubblefield was standing by a mail box when appellant got out of the car in which he was riding. One of the state's witnesses testified that appellant reached over in the car, took therefrom an iron tire tool, and advanced upon Stubblefield. Some of these witnesses testified that appellant struck Stubblefield from behind, and continued to beat him after he had fallen. Dr. Dishongh, the coroner who made an autopsy, testified that Stubblefield's death was caused by a blow on the head which fractured his skull; that the fracture went inside of the inner bone, and that there were multiple fractures on the inside of the skull; that "on the inside it was all cracked and bursted"; that there were several bruises over Stubblefield's shoulders and one big one on the posterior external portion on the right side; that the left eye was swollen and bruised. Giving to the testimony of the witnesses on behalf of the state the strongest probative force which it will reasonably bear, which we must do, we cannot say that the verdict of the jury was contrary to the evidence.

2. J E. Boyd, a witness for appellant, testified that he arrived at the scene after the difficulty occurred; that when he came up Stubblefield was sitting on the pavement and appellant was standing back of him; that appellant did not have any weapon in his hand, and that witness did not see any knife, but that Stubblefield was bleeding. The court refused to permit Boyd to testify as to what appellant said to him. Appellant's attorney apprised the court that, if permitted to answer the question, this witness would testify that appellant told him that Stubblefield had tried to cut him and showed witness a cut place in his shirt. The court held that this testimony was inadmissible on the ground that it would be a self-serving declaration. The...