Striplin v. State

• Decision Date: 03 July 1911
• Parties: STRIPLIN v. STATE
• Court: Arkansas Supreme Court

139 S.W. 1128

100 Ark. 132

STRIPLIN v. STATE

Supreme Court of Arkansas

July 3, 1911

Appeal from Howard Circuit Court, affirmed. J. T. Cowling

Judgment affirmed.

Collins & Collins, for appellant.

1. Where a defendant has fully complied with the law with reference to procuring the attendance of witnesses whose testimony is material to his defense, and the same facts cannot be proved by other witnesses, and there is no showing that their testimony, if given, is not probably untrue, and it is probable that their attendance can be procured at another term, then, if the defendant presents a motion for a continuance embodying all the elements required by statute as was done in this case, the court's refusal of such motion is an abuse of discretion, such as will justify a reversal. 71 Ark. 180; 60 Ark. 564; 42 Ark. 274; 9 Cyc. 173 2a; 28 Cal. 445.

2. The sheriff's testimony that some one had told him over the telephone that Riley had gone to Louisiana was pure hearsay and was erroneously admitted. It was prejudicial in that it was the only evidence tending to show that Riley's attendance could not probably be secured at another term.

3. It was error to exclude testimony as to deceased's reputation in the community in which he lived for being a violent, turbulent and dangerous man.

Hal. L. Norwood, Attorney General, and William H. Rector, Assistant, for appellee.

1. Motions for continuance rest so much with the sound judicial discretion of the trial court that this court will not reverse the judgment of the lower court on such a motion unless there has been a manifest abuse of that discretion amounting to a palpable denial of justice or an arbitrary and capricious exercise of power. 26 Ark. 323; 54 Ark. 243; 41 Ark. 153; 51 Ark. 167; 67 Ark. 543; 34 Ark. 26; 70 Ark. 521; 71 Ark. 62; 67 Ark. 290; 94 Ark. 539; Id. 169.

Cases should not be continued to procure the attendance of witnesses who live beyond the jurisdiction of the court. 67 Ark. 290; Id. 47; 83 Ark. 99. Where reasonable diligence on the part of the defendant is not shown, a continuance will not be granted. 91 Ark. 67; 92 Ark. 28. Neither will a continuance be granted to procure the attendance of a witness to impeach another witness, or, in a trial for homicide, to prove the reputation of the deceased for being a violent, turbulent and dangerous man. 74 Ark. 444. Continuance will not be granted in order to procure merely cumulative testimony. 78 Ark. 299; 79 Ark. 594; 86 Ark. 317.

2. The sheriff's testimony with reference to Riley's having gone to Louisiana was not improperly admitted. It was incumbent on the appellant in moving for continuance to show the whereabouts of the witness. This he failed to show. Upon the hearing of the motion, when the State introduced the officer who had the subpoena and attempted to serve the same, it was competent for him to testify that he had received information from the former employers of the witness that he was no longer in the State.

3. Frank Hannah's testimony as to the reputation of the deceased was properly excluded, because he could, and did, only testify to one or two fights in which deceased was engaged. Reputation cannot be shown by specific acts.

4. The modification of the 10th instruction requested by appellant was correct. One is never justified in taking human life unless it is necessary, and it is never necessary unless the danger is imminent. 84 Ark. 121; 58 Ark. 63.

5. The fifteenth instruction requested by the State was properly given and has been approved by this court. 37 Ark. 252; 40 Ark. 454.

OPINION

McCULLOCH, C.

The grand jury of Howard County, on January 19, 1909, returned an indictment against the appellant, George Striplin, for murder in the second degree in killing one Will Morrison. He was placed on trial August 25, 1909, but the jury failed to agree, and the case was continued from term to term until another trial was had, March 8, 1911, which resulted in a verdict of conviction of murder in the second degree, and punishment was fixed at five years in the State penitentiary. The evidence adduced on the part of the State tended to show that the killing was wilfully and deliberately done without provocation, and would have been sufficient to sustain a conviction for murder in the first degree under an indictment for that offense. Appellant and the deceased were working together in the woods, deceased being engaged with other laborers in cutting timber and appellant and others being engaged in hauling. On the morning of the difficulty, appellant drove up where deceased was cutting, and they had some words about a tree which had been cut down in the driveway. Appellant left in his wagon without taking a load, and in about twenty minutes returned afoot, and inquired for Morrison, who at that time had stepped off a short distance through the woods to attend to a call of nature. One of the other men at work there pointed out the direction in which Morrison had gone, and appellant walked over in that direction, and in a few moments two shots were heard and Morrison was seen to fall. As appellant walked away from the wounded man, he met others going in that direction hurriedly, and said to them that they needn't run, as he had "left life in the d d scoundrel." He requested one of the witnesses as he walked along to pick up Morrison's knife, but this witness testified that when he picked Morrision up he didn't find any knife. Another witness testified that he found the knife in Morrison's clothing.

Appellant filed a motion for a continuance, and assigns, as his principal ground for reversal, error of the court in overruling the motion. The continuance was asked on account of the absence of two witnesses, named Angel and Riley. It is stated in the motion that Angel was in Oklahoma, where he was temporarily at work, and was detained there on account of the serious illness of his wife, and that he was unable to get any one to stay with her, and for that reason could not leave her for a sufficient length of time to attend court. The evidence of this witness, as set forth on the motion, tended to contradict the evidence of Bud Roe, a witness on the part of the State, who testified that a few hours after the killing, the appellant came to his house to borrow a saddle and stated that he drove his team out to one side and went and got his pistol, meaning, of course, that he had gotten the pistol after the first angry words passed between him and Morrison. Defendant himself testified at the trial that he had the pistol with him all the time, as he was a constable and a private detective, and was on the lookout for an escaped convict from the Texas penitentiary. The fact that the appellant procured the pistol after the first angry words with the deceased, if this was true, only tended to establish deliberation, and as it was undisputed that he had the pistol at the time he did the killing, and was only convicted of murder in the second degree, that fact was not very material. We have often said that the question of granting continuance calls for the exercise of discretion by the trial court, and unless there has been an abuse of the discretion this court will not disturb the ruling of the trial court. There are many matters which trial courts are often called upon to consider in...