Tiner v. State

• Decision Date: 07 December 1914
• Docket Number: (No. 44.)
• Citation: 172 S.W. 1010
• Parties: TINER v. STATE.
• Court: Arkansas Supreme Court

Page 1010

172 S.W. 1010

TINER v. STATE.

(No. 44.)

Supreme Court of Arkansas.

December 7, 1914.

On Rehearing, January 25, 1915.

Appeal from Circuit Court, Randolph County; J. W. Meeks, Judge.

Dee Tiner was convicted of voluntary manslaughter, and he appeals. Affirmed.

This is the second appeal of this case. Appellant was convicted on the first trial of murder in the second degree, and the case was reversed for errors committed. Tiner v. State, 110 Ark. 251, 161 S. W. 195. He was jointly indicted with his father, Tom Tiner, for the murder of John R. Davis, who was killed on the 24th day of September, 1912, while riding along the road by Tom Tiner's wine cellar, near Swartz post office, by two shots fired from the window of the cellar, one from a shotgun and the other from a rifle both taking effect in the side of the murdered man, the rifle shot wound being about the center of the wounds made by the shotgun charge, the bullets all ranging about the same direction.

At the beginning of this trial the defendant made formal admission of the following facts:

First. That on the 24th day of September, 1912, at about 9 or 10 o'clock in the morning, one John R. Davis was riding in a westerly direction along the wagon road passing by the wine cellar and office of Thomas L. Tiner, near the Swartz post office, in this county, armed with a loaded shotgun and a loaded 38 caliber Smith & Wesson pistol.

Second. Defendant further admits that, while said John R. Davis was opposite or nearly opposite said wine cellar and office, there were fired from said office two shots, one from a Krag-Jorgensen rifle.

Third. Defendant admits that immediately after the firing of said shots the said John R. Davis fell from the horse he was riding to the ground.

Fourth. Defendant further admits that when other parties arrived at the spot where said John R. Davis had fallen to the ground they found that the said John R. Davis was dead.

Fifth. Defendant further admits that upon examination of the body of said John R. Davis it was found that a charge of shot had taken effect in his left arm, about two or three inches below the shoulder, and in the left side, some of which shot had penetrated into the interior of his body.

Sixth. Defendant further admits that upon such examination there was also found that a ball from a large caliber rifle had taken effect in the left arm of said John R. Davis, at or near the place where the greater portion of the charge of shot had entered, and that said rifle ball had passed through said arm, through the body, and out at the right side, just back of the scapula, and that the bone of the left arm, where the said charge had taken effect, was fractured.

Seventh. Defendant further admits that either of said wounds, the one produced by the shotgun and the one produced by the rifle, would have produced instant death.

Most of the testimony introduced at this trial was the same as that in the trial of Tom Tiner, whose conviction was affirmed in the case of Tiner v. State, 109 Ark. 138, 158 S. W. 1087.

James R. Hurn testified, detailing the following conversation had with deceased immediately before he was killed:

"On that morning John R. Davis came up to the post office from his son-in-law's. I says, `Hello, Uncle John; did you have a pretty good time? I see you have been out squirrel hunting.' He says, `Yes; I had a pretty good time.' He was sitting there on his nag, and I was splitting a little stovewood by a little stump that was there, and he sighed two or three times. He says, says he, `Uncle Jimmie, will you see me past the cellar this morning?' I says, `Yes; I'll see you past there.' He says, `I suppose Tom Tiner has threatened my life.' I says, `I hadn't heard about it; seemed like you fellows were having a fine time.' He says, `He has threatened my life, and I want you to see me past there.' Deceased then started down the road, and when he came to the wine cellar I saw smoke coming out from the little house above the cellar, and he threw up his arm and said, `Oh, Lord!' and fell off the right side of his horse. I could see the front door of the wine cellar at the time Davis asked me to see him by. I saw Dee Tiner there at the time, after the killing, about 40 or 50 yards from the cellar and going from it." Witness said he only heard one gun fired, and that he did not see the deceased throw up his left hand as if to fire his gun; that he had a single-barrel, breach-loading shotgun; had the breach of it on his arm and the muzzle on his stirrup. "He never changed the position of it from the time he left me until he was shot. I kept my eye on him all of the time."

Tom Tiner stated in his deposition:

"I am the father of the defendant. I shot and killed John R. Davis. I was sitting in my office working on my books, when I heard a horse, and, upon looking up, saw Davis in act of shooting at me with shotgun. Just as he fired I dropped down and picked up my shotgun and fired at Davis; then got my rifle and fired it at him. At the time of the shooting the defendant was not in the room. He was not present, neither did he in any way aid, abet, or assist in the killing; nor did he at any time advise or encourage me in the killing. When Davis came up he was on horseback; think he had come to a halt when I saw him. My shotgun was standing at my side, and as soon as Davis fired at me I fired at him with my shotgun. The rifle was setting in the door opening from room where I was into other room. As soon as I fired the shotgun I dropped it and grabbed the rifle and fired it; rifle had been in cellar for day or two. They kept the rifle a part of the time at Hamil and a part of the time at Swartz. Defendant brought the rifle from Hamil and handed it to me at my gate. I stayed at my office at the wine cellar on the Sunday night before Davis was killed on Tuesday, but was not there on the Monday night before he was killed. I kept the books for both my stores at my office in the wine cellar and stayed there the most of my time. I don't know when defendant first came to the wine cellar the morning Davis was killed, as members of my family came and went in and out all the time. Defendant may have helped me some on my books that morning, but had gone out, and think he was working with some grapevines near the cellar. He came in just after the shooting. When shooting was over, I turned round and defendant was standing at the door. He was not in the office or cellar when Davis came along. When I shot Davis with the rifle he fell from his horse."

Marion Tiner testified:

"I am the mother of defendant and the wife of Thomas L. Tiner, and remember when my husband killed John R. Davis. At the time of shooting I was sitting on the porch at my house in full view of the road and wine cellar. I happened to look up just as Mr. Davis fired his gun toward the wine cellar. I didn't see him raise the gun, but saw him shoot. Then I heard a gun from the cellar. I then saw the defendant run back toward the cellar, and just as he got to the cellar door another gun fired. Defendant was back in the vineyard 10 or 12 steps from the cellar door when the first shots were fired. I have talked to no one about what I saw at that time, except my husband. I was in attendance here as a witness at the former trial of the defendant, but was not called to testify. I do not know why I was not called."

Other witnesses stated that there were three shots fired, two in quick succession, the first report being that of a shotgun, and simultaneous with, or immediately after, it a rifle report, and later a third report of a shotgun. One witness, grandson of James Hurn, stated that he heard the first two shots fired together when he was getting a bucket of water from the spring some distance from the road; that he saw smoke, and immediately ran back toward the gate near which his grandfather, James Hurn, was standing; and that he saw his uncle Tom Tiner out in the road near the wine cellar raise his gun and shoot towards the wine cellar. The following statement of defendant's testimony at the coroner's inquest was read to the jury over his objection:

"This morning we were in the cellar, and Pa...