Turnage v. State of Arkansas

• Decision Date: 07 July 1930
• Docket Number: No. 88.,88.
• Citation: 30 S.W.2d 865
• Parties: TURNAGE v. STATE OF ARKANSAS.
• Court: Arkansas Supreme Court

Page 865

30 S.W.2d 865

TURNAGE v. STATE OF ARKANSAS.

No. 88.

Supreme Court of Arkansas.

July 7, 1930.

Rehearing Denied September 22, 1930.

Appeal from Circuit Court, Pulaski County; Abner McGehee, Judge.

James Turnage was convicted of murder in the first degree, and he appeals.

Affirmed.

J. H. Carmichael and H. B. Stubblefield, both of Little Rock, for appellant.

Hal L. Norwood, Atty. Gen., and Robt. F. Smith, Asst. Atty. Gen., for the State.

HART, C. J.

James Turnage prosecutes this appeal to reverse a judgment of conviction for the crime of murder in the first degree.

The first assignment of error is that the court erred in not sustaining a demurrer to the indictment. The record shows that George Washington, James Turnage, and Lindsey Turnage were indicted for the crime of murder in the first degree charged to have been committed by killing William H. Roberts while engaged in an attempt to rob him. The contention of counsel is based on the allegations of the indictment using the word "intent" instead of the word "attempt" to rob W. H. Roberts. The record shows that this assignment of error was decided adversely against this contention in the case of Washington v. State, 28 S.W.(2d) 1055. This is a companion case to that, and, inasmuch as the indictment is set out in full in the Washington Case, we do not deem it necessary to repeat it here. We there held that in crimes which required force as an element in their commission, such as robbery, there is no substantial difference between an assault with intent and an assault with attempt to commit the offense. What we there said is conclusive against the position now taken by counsel for the defendant. In addition, it may be said that the indictment charged that the defendant "with a felonious intent then and there to rob William H. Roberts did assault, kill and murder the said William H. Roberts with a certain pistol loaded with gun powder and bullets," et cetera. This, in plain language, charges the defendants with killing Roberts while attempting to rob him, and no one could have been misled by the language used. It is of itself a substantial compliance with the language of section 2343 of Crawford & Moses' Digest under which the defendants were indicted.

It is next insisted that the court erred in refusing to require the state to elect whether it would try the defendant for murder committed under the provisions of section 2343 of the Digest, or for murder as otherwise defined by the statute. We do not think there is any merit in this contention. The record shows that the defendant was tried for murder charged to have been committed under section 2343 of the Digest, that is to say, for murder committed while in the attempt to perpetrate robbery. All of the evidence introduced by the state and all the instructions given by the court unmistakably point to this fact, and counsel for the defendant could not have been misled in the premises.

The most important assignment of error relates to the legal sufficiency of the evidence to support a verdict of guilty of murder in the first degree and the fixing of the death penalty therefor by the jury. A proper consideration of this question necessitates giving a full outline of the circumstances leading up to, and including, the commission of the crime. According to the testimony of Mrs. William H. Roberts, wife of the deceased, her husband was shot on the night of December 7, 1929, at their filling station on the Galloway pike about three miles east of North Little Rock in Pulaski county, Ark., and died shortly afterwards from the wounds received. Just before he was shot, he was sitting in the filling station with witness and C. J. Gordon. Witness looked out of the front window and saw three negroes go from the front down the side of the building toward the rear of the building. Witness told her husband to go into the back room and see what they wanted. Roberts walked into the back room and witness heard two shots fired and immediately after that five more shots. The first two shots were not so loud as the last five. Witness' husband came in at the front door with his gun in his hand.

Other evidence tended to show that Roberts was shot by George Washington, and that the gun used was smaller caliber than that of Roberts. A. R. Lamb, a deputy sheriff, testified that at the time the defendant was arrested for the murder of W. H. Roberts he had a thirty-eight special Smith & Wesson pistol under his pillow which was loaded — this was the next night after the killing. Witness talked to the defendant that night and the defendant first denied knowing anything about the killing. Finally he told the witness that, if the rest of them had told it, he would tell it too, and stated that they (meaning George Washington, and his brother, Lindsey Turnage, and himself) went up to the filling station where Roberts was killed. They stopped the car before they got to the filling station. Defendant first pretended not to know what they went for. Witness asked the defendant what they were going up there for and he said that they were going up there to rob the filling station; that is, he said that one of the others told him that they were going up there to rob the filling station. After the killing occurred officers examined a field near the filling station and found tracks in it going from the station which fitted the feet of James and Lindsey Turnage. Another officer testified that the defendant admitted to him that he had a sweat rag under his hat and that George Washington and Lindsey Turnage each had a rag, or loosely fitting handkerchief, around his neck.

According to the testimony of George Washington he was twenty-nine years old and had been tried and convicted for killing W. H. Roberts; that he, in company with James and Lindsey Turnage, got out of their car and went around Robert's filling station toward the back of the building; that they passed by the front window and went around toward the back. When they got around to the back Roberts came to the door and shoved it open. Just as he shoved it open James Turnage said, "Look out, Lindsey," and witness was shot. The witness admitted that he then shot at Roberts. James and Lindsey Turnage ran off when the shooting commenced. Witness testified that he had his pistol in his raincoat, and that James and Lindsey Turnage each had a pistol in a holster attached to his belt.

The confession of the defendant was also introduced in evidence, and in it the defendant stated that George Washington had told them on the way up there that they were going to rob the filling station. According to the testimony of the defendant he left just as soon as he saw George Washington going toward the rear of the filling station and never had any intention of helping him rob it. The testimony shows that Lindsey Turnage was about eighteen years of age, and that James Turnage was twenty-eight years old.

In testing the legal sufficiency of the evidence to support the verdict, it must be viewed in the light most favorable to the state. As we have already seen, the indictment was found under section 2343 of the Digest, and charges the defendant with murder committed while attempting to perpetrate robbery. An attempt, in general, is an overt act to do a specific thing; it must be something tending to accomplish the end, but falling short of committing it. Here, the jury was warranted in finding something more than an intent and preparation to commit the crime of robbery. It is true that under the evidence adduced in favor of the defendant he abandoned any attempt to commit the crime of robbery before any overt act was committed by George Washington, but it cannot be said that his testimony is uncontradicted. They went to the filling station in the nighttime, and the wife of the deceased saw them going toward the rear of the building. Each of them had a loose rag or handkerchief tied around his neck which might have been used for a mask. Each of them was armed with a pistol. According to the testimony of the defendant himself, he knew...