Turner v. State

• Decision Date: 24 January 1955
• Docket Number: No. 4788,4788
• Citation: 275 S.W.2d 24,224 Ark. 505
• Parties: M. L. TURNER, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 24

275 S.W.2d 24

224 Ark. 505

M. L. TURNER, Appellant, v. STATE of Arkansas, Appellee.

No. 4788.

Supreme Court of Arkansas.

Jan. 24, 1955.

Rehearing Denied Feb. 28, 1955.

Wm. I. Purifoy, Otis Linebarier, Camden, Hendrix Rowell, Pine Bluff, for appellant.

Tom Gentry, Atty. Gen., Thorp Thomas, Asst. Atty. Gen., for appellee.

ROBINSON, Justice.

Appellant M. L. Turner was convicted of murder in the first degree, the verdict returned by the jury carrying with it the death penalty.

The evidence supports a finding of facts as follows: Appellant was divorced by his wife, Mrs. Bertie Turner, in October, 1951. On Labor Day, 1953, Mrs. Turner was introduced to Lloyd R. Squire, a widower employed by the Kansas City Southern Railroad in the public relations department. He lived in Little Rock, and in connection with his duties as an employee of the railroad company, Mr. Squire occasionally visited the city of Camden where both Mrs. Turner and her divorced husband, the appellant herein, lived. Mrs. Turner is a deputy city clerk for the city of Camden.

On the evening of April 13, 1954, Mrs. Turner had dinner with Mr. Squire at a restaurant in or near Camden. They also went to the Rocket Room, a place of amusement at the Hotel Camden, and later to the Plantation Club. The next day, April 14, Mr. Squire went to Mrs. Turner's office and took her to lunch at the Duck Inn. Mr. Turner, the appellant, had been out of town for several days on a visit to New Orleans and Florida, and during his absence from Camden he had left his automobile with his divorced wife. He returned to Camden the evening of the 13th; on the morning of the 14th he called Mrs. Turner and stated to her: 'I wish you would keep your g_____ d_____ Plantation Club friends from calling me and disturbing my rest, and keep your g_____ d_____ friends out of my car.' Hence Mrs. Turner knew that Mr. Turner had returned to town and was angry.

When Mrs. Turner and Mr. Squire left the Duck Inn after finishing lunch April 14, she asked him to drive her to her apartment for the purpose of picking up her own car as she knew Mr. Turner would want his. She had left his car downtown with the key in it to make it available to him. Mr. Squire drove Mrs. Turner to her apartment; her car was parked at the rear of the driveway which goes alongside the apartment house. The car was facing the street; it had not been used for over a week. Mr. Squire drove his car up in the driveway, stopped, got out with Mrs. Turner and accompanied her to her car to see whether it would start. While they were both there at Mrs. Turner's car, the appellant Turner drove up, got out of his car, and started up the driveway. Turner had previously told Mrs. Turner that if he ever caught her with another man, he would kill both her and the other man. Mrs. Turner saw her divorced husband approaching, and knowing he was angry she suggested to Mr. Squire that he had better leave. Mr. Squire attempted to make his departure by walking out the driveway toward his car at the front; in doing so he met Turner. The evidence is convincing that Mr. Squire spoke to Turner, asking him if he was Bill Turner, and extended his hand to shake hands. Turner also made a gesture as if to shake hands, but jerked his hand back and drew a Colt .45 automatic pistol. No witness heard exactly what Turner said to Squire, but Turner appeared to be talking in a rapid, angry manner. Turner operated the mechanism of the gun in a way to throw a shell from the magazine into the barrel, and then struck Squire a very severe blow on the left ear with the pistol. The blow did not knock Squire down but knocked him into a stooping position. Turner then moved back a step or two and fired twice, one bullet striking Squire in the chest; he died from the effects of the wound two days later.

Mrs. Turner was an eye-witness to the shooting; and Mrs. James L. Halligan was a witness to the extent that from an upper window of the apartment house she could see Mr. Turner; however, she could not see Mr. Squire. The evidence shows that Mr. Squire was not armed. The eye-witnesses are corroborated by the fact that two empty cartridges were found at the place where the shooting occurred, and one round of live ammunition for the .45 automatic was also found. This round of live ammunition being found at the scene of the shooting is highly significant; it is weighty evidence to the effect that Turner operated the mechanism of the gun to make certain there was a cartridge in the barrel; that actually the gun was loaded and the cartridge in the barrel was ejected out onto the ground and another cartridge injected into the barrel. The fact that Turner operated the gun to make sure there was a cartridge in the barrel is a strong circumstance going to show his intention.

As a defense, the appellant attempted to show, first, that the shooting was in self-defense; he says that Squire reached for his hip pocket; next, that the shooting was accidental, that he did not intentionally fire the pistol; and next, that he is insane. The jury found against the appellant on all his asserted defenses, and the testimony of the eye-witnesses coupled with the physical facts and circumstances is substantial evidence sufficient to sustain the verdict of the jury.

The shooting occurred April 14, 1954. Squire died about 3:00 a. m. April 16. On the same day, April 16, the prosecuting attorney filed a felony information in circuit court charging Turner with murder in the first degree. On April 23 the defendant was arraigned and announced he had not employed counsel. A plea of not guilty was entered for him by the court, and two members of the local bar were appointed to defend him. At this time the case was set for trial on May 10, the next regular term of court beginning May 3. On April 24 there was filed a motion for bail, and April 28 a petition for writ of habeas corpus. April 30 the motion for bail was withdrawn, and at the habeas corpus hearing bail was denied.

On May 7 there was filed a motion for continuance. At that time one of the attorneys representing defendant stated that he thought two additional weeks would be adequate time to make an investigation and prepare the defendant's case. The court granted nine days additional time, resetting the case for May 19.

On May 17, defendant having employed additional counsel, another motion for continuance was filed. This motion was prepared by Mr. Hendrix Rowell, an attorney who had been employed recently in behalf of the defendant. The motion sets out that Mr. Rowell was employed about 2:00 p. m. May 13, and alleges there was not sufficient time for either him or the other lawyers representing the defendant to prepare the case properly. The motion states that there are facts material to the defense which could be established if given further time; but the motion does not mention specifically any fact that could be established if given additional time.

The case went to trial on May 19. It is not shown how the defendant could be any better prepared on any of his alleged defenses at a later date than he was at the time of the trial. The pistol used by him was introduced in evidence; it is not shown that it is defective or that it would fire in an unusual manner. Defendant testified that there was a scuffle and that the pistol was thereby discharged, but he is contradicted by the eye-witnesses; and it is not shown that any additional evidence could be obtained to the effect that the shooting was an accident. As to the self-defense feature of the case, it is not suggested that there is any witness to the shooting that would be available at a later date but not available at the time of the trial. Moreover it would be extremely difficult to convince a jury by any testimony that an unarmed man reached for his hip pocket when confronted in a belligerent manner by an angry person with a pistol in his hand. As to the defense of insanity, there was more than a month from the time of the shooting and death of the victim until the time of the trial; the defendant could have been examined by any number of psychiatrists of his own choice during that period of time, but none were produced at the trial. In fact, the defendant testified in his own behalf and there is nothing in his testimony that would lead the court to believe that he is insane.

In support of the contention that the court erred in overruling the motion for a continuance filed by Mr. Rowell on May 17, appellant cites the case of Maxwell v. State, 216 Ark. 393, 225 S.W.2d 687. That case is readily distinguishable from the case at bar; there the defendant who was charged with rape was arrested on July 20, seven or eight hours after the alleged crime occurred. Because of public resentment he was removed from the county where the offense was alleged to have occurred, and kept until August 4. Then a certified copy of the information was served on him in the court house of the county where he was charged with the crime; he was again taken out of the county, but brought back two days later for arraignment; and at that late date six members of the local bar were appointed to represent him. This was on Saturday, August 6; the trial was set for Monday, August 8. It was shown that there were several features of the case that needed investigating, and that the attorneys did not know of their appointment until Saturday afternoon and could not possibly be ready for trial by Monday morning.

In Meyer v. State, 218 Ark. 440, 236 S.W.2d 996, 999, we said: 'The appellants had about three weeks to get ready for trial. This Court has held in a long line of decisions that Motions for Continuances are addressed to the sound judicial discretion of the trial court and a reversal can be had only where it is shown by the record that a refusal to grant a continuance was an arbitrary abuse of discretion. Morris v. State, 197 Ark. 778, 126 S.W.2d 93; Smith v. State, 200 Ark. 1152, 143...