Tolliver v. State
| Decision Date | 29 June 1931 |
| Docket Number | 64 |
| Citation | 40 S.W.2d 421,183 Ark. 1122 |
| Parties | TOLLIVER v. STATE |
| Court | Arkansas Supreme Court |
Appeal from Little River Circuit Court; A. P. Steel, Judge affirmed.
Judgment affirmed.
Seth C Reynolds and J. O. Livesay, for appellant.
Hal L Norwood, Attorney General and Robert F. Smith, Assistant, for appellee.
OPINION
Appellant was convicted of murder in the first degree, and given a life sentence in the penitentiary, under an indictment charging him with having shot and killed one Almer Crossly. He admitted firing the shot which caused Crossly's death, but interposed the defense that the killing was accidental. The testimony may be briefly summarized as follows: The killing occurred in a room which appellant occupied. A number of other colored men were in his room shooting dice. Appellant was not engaged in the game, but was fixing an inner tube near the stove in the room, which was several feet from the bed where the dice game was in progress. Crossly and some other colored men entered the room and walked over to the bed. At about that time appellant quit work on the inner tube, walked over to the bed and took a pistol from under the pillow. A clicking sound was heard as if a pistol had been cocked, and a shot was fired immediately thereafter. The pistol was one which could not be fired until it had first been cocked. It could not be fired by merely pulling the trigger, as could a double-action or self-cocking pistol. This shot killed Crossly almost instantly after grazing the arm of another man as he reached across the bed for his winnings. No quarrel of any kind had occurred in the room, and appellant made no remark indicating any intention to shoot.
Three witnesses were permitted to testify, over the objection of appellant, concerning threats made by the latter on the night before the killing. These witnesses testified that appellant said some one had insulted him at his house the night before, and that he said, "I would have killed a man that night if I had had my gun; and that ain't all." Appellant did not say who the man was, and the witnesses did not know to whom he referred, but one of the parties present asked where the man lived, and appellant "motioned towards the compress." Deceased was present at appellant's house the night before the killing and worked with appellant at the compress.
Testimony was offered by appellant to the effect that he and deceased were friends of long-standing; that they had never had a quarrel, and that there was no bad feeling between them. Appellant also denied having made any threats against deceased, or any other person, and denied having had the conversation attributed to him by the witnesses who testified concerning the threats. Appellant testified that he happened to remember that he had a half dollar under the pillow lying on the bed where the men were shooting dice, and he thought his money would be safer in his own pocket, and he went to the bed to get the money. In regard to the pistol he testified as follows: After describing the position of various participants in the game he proceeded to say: Smith testified that he hit appellant's arm, and the gun went off, and other persons in the room corroborated the testimony of both appellant and Smith.
Upon the issues thus joined, the court gave the usual instructions in homicide cases, but exceptions were saved to all the instructions which submitted the question whether appellant was guilty of a higher degree of homicide than that of involuntary manslaughter, for the reason that the undisputed testimony shows that he was not guilty of any higher degree of homicide than that of involuntary manslaughter. It is also insisted, for the reversal of the judgment of the court...
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