Smith v. State

• Decision Date: 31 May 1937
• Docket Number: No. 4030.,4030.
• Parties: SMITH v. STATE.
• Court: Arkansas Supreme Court

Page 1019

106 S.W.2d 1019

SMITH v. STATE.

No. 4030.

Supreme Court of Arkansas.

May 31, 1937.

Rehearing Denied July 12, 1937.

Appeal from Circuit Court, Boone County; J. H. Black, Judge.

O. O. Smith was convicted of involuntary manslaughter, under an indictment for murder in the first degree, and he appeals.

Affirmed.

J. Loyd Shouse, of Harrison, for appellant.

Jack Holt, Atty. Gen., and Jno. P. Streepey, Asst. Atty. Gen., for the State.

MEHAFFY, Justice.

The appellant, O. O. Smith, was indicted and tried in the Boone circuit court for murder in the first degree, and was convicted of involuntary manslaughter, and his punishment fixed at one year in the penitentiary. The appellant owned and operated the Ozark Hotel at Harrison, Ark., and the deceased, Kirby Clifton, was a farmer living at Western Grove, Newton county, Ark. Appellant and deceased had been friends for many years, and deceased usually stopped at appellant's hotel when in Harrison.

On February 19, 1936, the day before his death, Clifton came to appellant's hotel and secured a room for the night. He was assigned a room by appellant. Next morning he left the hotel and was not seen again by the appellant until late that afternoon. He was drinking, and spent part of the day with Jeff Sanders, and about 4 o'clock in the afternoon Sanders took him to the Ozark Hotel. Sanders, appellant, and deceased went to deceased's room in the hotel, and discussed plans for opening a real estate office in Western Grove. Deceased had a bottle of alcohol and all three of them drank from it.

The testimony of Blaine McDougal showed that he was at the appellant's hotel the night the deceased was shot and killed; that he got there about 11:20 and appellant and deceased were the only ones in the lobby; that deceased was sitting in front of the stove asleep, and appellant was behind the stove playing solitaire; that deceased had all of his clothes on, overshoes and overcoat, and was bareheaded; appellant told witness to go upstairs and take room No. 2 which was about ten or twelve feet back from the head of the stairs; that he got ready for bed, smoked a cigarette, and not long afterwards heard an argument start in the lobby; that he had not been asleep. He heard appellant tell deceased to get on out but did not hear what deceased said. Appellant told deceased to get out, and then said: "You have been here and not been out anything." Deceased said: "If I owe you anything I will pay you." It was not over a half minute until the shot was fired. There was only one shot. Witness lay there a little while and heard a peculiar noise like one in a death struggle and went down. The chair on which deceased had been sitting was sitting in the same place but was turned over to the right, and deceased's right arm was lying under him. He fell and had a death grip on the chair. The chair went over with him. There was a knife lying in front of him which looked like it had been used to cut tobacco. Deceased did not use tobacco, and was right-handed. Witness came to the hotel about 11:20, and the first time he noticed the clock after he went down to the lobby it was 11:45. Appellant said he and deceased had been drinking together, and appellant looked like he had been drinking.

Dr. Gladden testified that he was called to the Ozark Hotel the night of the killing. Deceased was on his right side, and sitting in a chair which was turned over. Deceased had a grip with one hand on the chair, and was just about one foot out of the chair. His right hand was gripping the chair. Deceased was right-handed. Deceased was shot through the heart, ranging down in the back about an inch. Death was instantaneous. In witness' opinion, if a man has something in his hand and was shot through the heart, he would stay gripped to it. If a man was sitting in a chair and another man shot him standing up, the bullet would come out lower behind.

Lavona Thompson testified that appellant was pretty drunk at supper.

Bud Holland, city marshal, testified that he got to the lobby of the hotel the night of the killing shortly after the shooting; that deceased had been sitting in a chair, and the chair was turned over, and his right hand was under the chair, gripping the chair, and his left hand was over his face.

Deceased's father testified that the deceased did not chew tobacco and was right-handed.

Deceased's son testified that his father was right-handed, and that the knife found by his father's body was a strange knife, one that he had never seen before.

There is some conflict in the testimony. The evidence showed that there were two knives found in deceased's pocket; both of them shut. No one knows where the knife found on the floor came from, or to whom it belonged.

Appellant insists first that there is no substantial evidence to support the verdict of the jury. We do not agree with appellant in this contention. Appellant himself testified that the deceased came toward him with a knife and threatened him, and that he ran downstairs and deceased followed him, and, when appellant got downstairs to his room, he stepped in and got the gun, and thought the deceased was going to kill him, and he shot and killed deceased.

The undisputed facts, however, show that deceased was shot in the heart, and the bullet ranged down, coming out at the back. If the jury believed the evidence of McDougal and Gladden, they were not only justified in convicting appellant, but the evidence of the State witnesses would sustain a conviction for a higher grade of homicide.

"The rule is well settled that the evidence adduced at a trial will, on appeal, be viewed in the light most favorable to the appellee and if there is any substantial evidence to support the verdict of the jury, it will be sustained." Slinkard v. State (Ark.) 103 S.W.(2d) 50, 52, delivered March 8, 1937.

In the trial of cases the facts are to be determined by the jury and not by the court. The jury is the judge of the credibility of the witnesses and the weight to be given to their testimony. Therefore, in testing the legal sufficiency of the evidence to support the verdict, it must be viewed in the light most favorable to the State. Turnage v. State, 182 Ark. 74, 30 S.W.(2d) 865; Link v. State, 191 Ark. 304, 86 S.W.(2d) 15; Clayton v. State, 191 Ark. 1070, 89 S.W.(2d) 732.

It is next contended by the appellant that the court erred in giving instruction No. 2 requested by the State. That instruction is as follows: "No one in resisting an assault made upon him in the course of a sudden brawl or quarrel, or upon a sudden encounter, or in a combat on a sudden quarrel, or from anger suddenly aroused at the time it is made, is justified in taking the life of the assailant, unless he is so endangered by such assault as to make it necessary to kill the assailant to save his own life, or to prevent a great bodily injury, and he employed all the means in his power, consistent with his safety, to avoid the danger and avert the necessity of killing. The danger must apparently be imminent, irremediable and actual, and he must exhaust all the means within his power, consistent with his safety, to protect himself, and the killing must be necessary to avoid the danger, if, however, the assault is so fierce as to make it apparently, as dangerous for him to retreat as to stand, it is not his duty to retreat, but he may stand his ground, and, if necessary to save his own life, or to prevent a great bodily injury, slay his assailant."

The specific objections appellant makes to this instruction are that it is argumentative; second, that it is conflicting within itself; third, that it is in conflict with other instructions given.

We think the instruction given is correct. It is not argumentative, it is not conflicting within itself, and it is not in conflict with any other instruction. Moreover, numerous instructions were given at the request of the appellant, which fully instructed the jury as to the law in the case, and there was no error in giving instruction No. 2.

The appellant next urges a reversal because of alleged improper conduct of the jury. Ap...