Sullivan v. State

• Decision Date: 27 September 1926
• Docket Number: 143
• Citation: 286 S.W. 939,171 Ark. 768
• Parties: SULLIVAN v. STATE
• Court: Arkansas Supreme Court

286 S.W. 939

171 Ark. 768

SULLIVAN v. STATE

No. 143

Supreme Court of Arkansas

September 27, 1926

Appeal from Miller Circuit Court; James H. McCollum, Judge affirmed.

Judgment affirmed.

Pratt P. Bacon, for appellant.

H. W Applegate, Attorney General, and Darden Moose, Assistant, for appellee.

OPINION

WOOD, J.

Appellant was convicted in the Miller Circuit Court on an indictment which correctly charged him with the crime of murder in the first degree in the killing of one John Gibson. He was found guilty by the jury of the crime of murder in the first degree, and his punishment fixed at life imprisonment in the State Penitentiary.

From a judgment sentencing the appellant according to the verdict, he prosecutes this appeal.

The testimony of H. L. Burton, for the State, was substantially as follows:

The witness was with Gibson, the deceased, on December 25, 1925, from about 12 o'clock noon until he was killed. The witness met Gibson at his home. They went to Ravana in witness' car. Gibson asked the witness to stop at Sullivan's house, and witness drove by Sullivan's house and stopped his car. Gibson got out of the car, and went into the house. The witness heard the report of a gun. The witness sat in the car, and saw Sullivan come out of the south end of his house, which was the back part. The house faces the road north. Sullivan met his wife, 20 or 30 steps from the house, and said to her, "I killed him. I shot him through the heart." The witness then went in the house and found Gibson in the room, dead. He was leaning against the bed, shot through the heart. His hands were down by his side. The witness' car was about 50 steps from where Sullivan met his wife. Sullivan did not have a gun when the witness saw him. The witness described the house where Sullivan and his family lived. The house faced the road, and there were two rooms 16x16, with a hall between. The killing occurred in Miller County, Arkansas.

Over the objection of appellant the court permitted Jasper, Eva, Addie and Effie Gibson, children of the deceased, to testify to remarks made by their father in a conversation with Sullivan on the 19th day of December, 1925, which is as follows:

"Well, Mr. Sullivan, I want to see you about that feed bill you owe up there at Mr. John Simmons' that I stood for. It's about time it was being paid off. I owe a bill up there myself, and I would love for you to see if you can't dig me up some money on that. I thought I would drop down and see if you could dig me up some money on that feed bill. It's about time it was being paid. While I think about it, Willis jumped me about that note you forged my name on up there. You ought to see something about that. You are liable to get in trouble about it. I ain't got nothing to do with it myself; that is left up to you and Willis.

The defendant duly excepted to the ruling of the court in admitting the above testimony.

Over the objection of appellant, the court permitted Jasper Gibson to testify that, on the day of the killing, his father went to appellant's house to see him about some lumber. The witness stated that he knew this from what his father told him.

The appellant duly excepted to the ruling of the court.

The witness, Fred Brimmer, over the objection of appellant, was permitted to testify that he was at the home of John Gibson, the deceased, on the morning that he left for Ravana, the day that he was killed. Gibson had started to Ravana to see Sullivan, the appellant, about a bill of lumber. The witness was asked, "How do you know that?" and answered, "He told me."

The appellant duly excepted to the ruling of the court in admitting this testimony.

Over the objection of the appellant he was asked, on cross-examination, "How many different men have you shot or shot at?" The court ruled that the appellant might answer the question, and that the jury might consider that "only in passing on this man's credibility as a witness."

The appellant duly excepted to the ruling of the court.

Over the objection of appellant the court, among other instructions, gave the following:

"6. The bare fear of those offenses to prevent which the homicide is alleged to have been committed shall not be sufficient to justify the killing. It must appear that the circumstances were sufficient to excite the fear of a reasonable person, acting without fault or carelessness on his part, and that the party killing really acted on their influence and not in a spirit of revenge."

The appellant asked the court to amend the above instruction by adding the following: "It must appear that the circumstances were sufficient to excite the fears of the defendant, acting as a reasonable person."

The appellant duly excepted to the ruling of the court in giving the instruction, and in refusing to add the qualification.

Over the objection of appellant the court gave the following instruction, to which appellant duly excepted:

"11. If you believe from the evidence in this case, beyond a reasonable doubt, that the defendant, armed with a deadly weapon, sought or brought on or voluntarily entered into the difficulty with deceased, with felonious intent to take his life, then the defendant cannot invoke the law of self-defense, no matter how imminent the peril in which he found himself placed, unless he abandoned or attempted to abandon the conflict before the mortal shot was fired."

The appellant's prayer for instruction No. 14 is as follows:

"If you believe from the evidence that the defendant was in his home, and in good faith, and as a reasonable man, believed that deceased intended to kill him or do him some great bodily harm, and, while so in his home, deceased came there and entered the house in a violent and threatening manner, thrust his hand into his pocket, and if defendant, as a reasonable man, believed that deceased intended to kill him, or do him some great bodily harm, and, acting under the influence of such belief, defendant fired the fatal shot, the killing would be justifiable, in viewing the circumstances from defendant's standpoint, if it appeared to him, as a reasonably prudent man, acting without fault or carelessness, he believed that it was necessary to kill deceased in order to save his own life or prevent great bodily harm being done him."

The court refused his prayer, to which ruling the appellant duly excepted.

We will consider the above assignments of error in the order urged by appellant's counsel in their brief.

1. It was not error to permit the Gibson children to testify that, on the 19th of December, 1925, in a conversation between their father, the deceased, and appellant, they heard their father use the language to the appellant as already set forth.

One of the witnesses for the defendant testified that, just as Gibson came along in the car, the witness saw the defendant, Sullivan, come through his house with what looked like a shotgun in his hand.

One of the witnesses for the State testified that Sullivan told the witness, on the morning before the killing occurred, that "they thought that they had him in their boat, but, before he would go to the penitentiary over anything, he would kill the whole bunch."

Another witness for the State testified that, on Christmas Eve night, Sullivan told the witness to tell John Gibson, the deceased, "to come down to his house tomorrow, that he wanted to see him on some particular business." The witness further testified that he went by John Gibson's home that night and delivered the message.

It was the theory of the State that the motive of appellant in killing the deceased was because he feared he would be prosecuted for the crime of forgery, and, if so, the deceased would be a material witness against him.

It appears from the testimony of the witnesses just quoted that this theory of the State was justified, and therefore the testimony of the children of Gibson as to the conversation between him and the defendant, Sullivan, a few days before the killing as above detailed, was relevant to the issue. The appellant himself, on cross-examination, was asked the following question, "And you killed him because he came to your house, did you, that night?" He answered, "I reckon I did. I told him not to come to my home. He came there. What else was I going to do--go off and leave her in the house?"

It was the contention of appellant, as shown by his testimony, that he killed Gibson because he feared that illicit relations existed between him and appellant's wife, and because he had told the deceased to stay away from his home, and because the deceased came to appellant's home and was making a demonstration at the time appellant shot him, as though he was going to draw a weapon from his pocket.

In Sneed v. State, 159 Ark. 65 at 65-74, 255 S.W. 895, we said: "While it is competent to prove the presence or absence of motive in determining the issue of guilt or innocence, and while such proof always is a cogent factor relative to that issue, yet, if the testimony be otherwise legally sufficient to prove guilt, a verdict of guilty cannot be set aside because of failure to prove a motive for the crime."

It will be observed that there was a sharp conflict between the appellant and the State as to the motive actuating appellant in the killing of Gibson. The testimony of Gibson's children, as above detailed, was relevant testimony tending to prove that the motive of the appellant in the killing of Gibson was as contended by the State, and the court therefore did not err in admitting the same.

In 13 R. C. L., 910, § 214, it is correctly declared that "Where the purpose of evidence is to disclose a motive for the killing, the courts are very liberal in permitting its introduction, and anything...