Tatum v. State

• Decision Date: 29 November 1926
• Docket Number: 22
• Parties: TATUM v. STATE
• Court: Arkansas Supreme Court

288 S.W. 904

172 Ark. 244

TATUM v. STATE

No. 22

Supreme Court of Arkansas

November 29, 1926

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

STATEMENT OF FACTS.

Lee Tatum was indicted for murder in the first degree, charged to have been committed by stabbing A. Brittenberg with a knife.

It appears from the record that Lee Tatum and A. Brittenberg had a lawsuit about a tract of land, and came to Stamps Lafayette County, Arkansas, for the purpose of taking depositions in the case. They met on the streets, and Tatum stabbed Brittenberg with a knife which resulted in his death in fifteen or twenty minutes. Thus far the facts are undisputed.

According to the testimony of C. W. Hamm, he saw Lee Tatum and Newt Aldridge sitting on an iron step about a foot high which extended out in front of a drugstore in the town of Stamps. The witness saw Brittenberg walking towards them. He then turned away, and his attention was attracted by hearing somebody scuffling. He looked around, and noticed Brittenberg advancing towards Tatum with his hands up (he was advancing towards Tatum as the latter came out from behind the offset made by the iron step extending out in front of the store). He saw the defendant make a stab at Brittenberg, and the latter threw up his hands and hollowed "Oh!" He then put his hands to his side and leaned over. When he took his hands away from his side, the blood gushed to the sidewalk. Within fifteen or twenty minutes he died.

Two other witnesses testified to practically the same state of facts. They said that Brittenberg was pushing the defendant when the latter stabbed him. One of them said that the blood poured out of Brittenberg's body when he was stabbed.

Charlie McGill was also a witness for the State. According to his testimony, he saw the difficulty, and was not more than twenty feet from the scene of the difficulty when it occurred. He was asked to tell the jury what he saw, and answered as follows: "Well, I first noticed just a scuffle, and I didn't think it was much of a fight. They were just ruffling hands, and Brittenberg kindo' pushed Tatum back, find, as he did, why, Tatum took another step back, pushed against the drugstore door, and at the same time he was reaching for his right-hand back pocket for a knife and just one step was made off that step of the drugstore and, when he did, there was one strike, and Brittenberg tried to defend that."

On cross-examination he was asked if Brittenberg did not have his hands doubled up just before he tried to throw his hands up, and replied that he did not see them doubled up. He further stated that he did not see Brittenberg hit Tatum, but did see him push him. Brittenberg was seventy-three years of age at the time he was killed.

According to the testimony of Newt Aldridge, Brittenberg passed by the drugstore where the witness and the defendant were sitting and shook hands with the witness. Brittenberg then turned to Tatum and said: "Mr. Tatum, I am not your friend. I won't shake hands with you." Mr. Tatum turned to Brittenberg and said: "I don't want no friendship from no such son-of-a-bitch as you are." Brittenberg then said: "I won't take that, Tatum, at all." Tatum began getting up, and Brittenberg hit him and knocked him up against the screen door of the drugstore. Tatum caught on his hands as he was knocked against the door, and, when he got up, he took his knife out of his pocket. The witness told Brittenberg not to advance on Tatum, that he would cut him. Brittenberg made a step, and a short step, towards Tatum. He stooped a little bit and had his hands in the motion of boxing. Tatum then struck him with his knife. Brittenberg weighed somewhere between 175 and 200 pounds. He was a well-preserved man and skilled in boxing. The witness saw him knock out two boys with whom he was boxing.

The defendant was a witness for himself, and, according to his testimony, he stabbed the deceased with his knife in order to prevent him from doing him great bodily harm. Brittenberg had knocked him down one time and was advancing upon him in a threatening position when he stabbed him. The defendant admitted that he had sharpened his knife on the day before the killing, but said he did so because he had dulled it in cleaning some fish a few days before.

The jury returned a verdict of guilty of murder in the second degree, and fixed the punishment at ten years in the penitentiary. From the judgment and sentence of conviction the defendant has duly prosecuted an appeal to this court.

Judgment affirmed.

Steve Carrigan and McKay & Smith, for appellant.

H. W. Applegate, Attorney General, and John L. Carter, Assistant, for appellee.

OPINION

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

It is earnestly insisted by counsel for the defendant that the evidence is not legally sufficient to support the verdict. This court has held that, in a prosecution for assault with the intent to kill, it is necessary to show a specific intent to take life under such circumstances that, if death ensues, the accused would be guilty of murder in the first or second degree. It was also held that, in determining whether or not such intent existed, the jury should take into consideration the manner of assault, the nature of the weapon used, the manner in which it was used, the statement of the defendant, and all facts and circumstances tending to show his state of mind. Clardy v. State, 96 Ark. 52, 131 S.W. 46, and Davis v. State, 115 Ark. 566, 173 S.W. 829, and cases cited.

While there must have been a specific intent to take life, it need not have existed for any appreciable length of time, and malice could have been inferred from the fact that a murderous assault was committed with a knife in connection with the other attendant circumstances. Green v. State, 51 Ark. 189, 10 S.W. 266; Ferguson v. State, 92 Ark. 120.

In Keirsey v. State, 131 Ark. 487, 199 S.W. 532, it was held that mere words, however abusive or insulting, cannot reduce the degree of homicide from murder to manslaughter.

In Stepp v. State, 170 Ark. 1061, 282 S.W. 684, the court said that, inasmuch as no one can look into the mind of another, the only way to decide upon its condition at the time of the killing is to judge from the attending circumstances, and that the question of the presence or absence of malice at the time of the killing is for the jury, when there is any evidence to support its finding, because the jury is the judge of the weight to be given to the evidence, in deciding its legal sufficiency to support a verdict, it must be viewed in he light most favorable to the State.

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