White v. State

• Decision Date: 18 March 1905
• Citation: 86 S.W. 296
• Parties: WHITE v. STATE.
• Court: Arkansas Supreme Court

86 S.W. 296

WHITE v. STATE.

Supreme Court of Arkansas.

March 18, 1905.

Appeal from Circuit Court, Ashley County; Zachariah T. Wood, Judge.

Joe White was convicted of murder in the second degree, and appeals. Affirmed.

G. W. Norman and W. A. Roby, for appellant. Robert L. Rogers, Atty. Gen., for the State.

HILL, C. J.

Joe White was a farmer living on Bayou Bartholomew, in Ashley county, and had as a tenant Robert L. Adams, who lived near him. On the day in question White went to Wilmot, a town about three miles from his residence, and brought back with him a supply of whisky. On reaching the bayou he met Adams, and, owing to some threats prevalent in the neighborhood which rendered Adams uneasy, invited him and his wife to spend the night at his (White's) home. They came shortly afterwards, and they and Mr. White's sister, Tennie Turner, were in the house during the occurrences hereinafter related. White seemed to be drinking considerably, and his wife some also. They were teasing Adams and wife about being frightened, and Mrs White joined in the jokes being perpetrated on account of their fears. White and his wife were dancing together and singing, when White said he was going to shoot into the top of the house, and suited the action to the word, and fired his pistol into the roof. Adams and his wife ran into an adjoining room, and Tennie Turner was looking at them, when a second shot was fired. This shot struck Mrs. White about two inches to the left of the navel, and ranged downward, killing her. White seemed much distressed over the injury to his wife, sent for a doctor at once, and tried to alleviate her sufferings. White claimed he did not kill his wife, and that some one shot her through the door. He attempted to conceal her clothing, which was powder-burned. He exhibited his pistol to a neighbor, with only one chamber empty, and in other ways attempted to manufacture evidence in his own behalf. Tennie Turner testified that when White came home he quarreled with his wife, and struck her, and seemed to be drinking considerably. After supper the quarrel was renewed, the wife threatening to send a note to the whisky seller at Wilmot to stop selling White liquor, and he threatened to kill her, and later struck her again. After this the playing began, and the wife invited him to the dance which ended so tragically. There is other evidence of threats and bad feeling between husband and wife, and that he once before shot at her. All of this evidence is strongly contradicted by the defendant, and as to his relations with his wife being affectionate he is corroborated. The jury, however, credited Tennie Turner's and the other incriminatory evidence, and convicted him of murder in the second degree, and assessed his punishment at five years in the penitentiary. The only errors assigned by counsel for the appellant are that the verdict is not supported by the evidence, and that the court gave an instruction defining when and when not drunkenness excuses crime. The instruction is not objected to as abstractly incorrect, but because there was no such theory in the case, and it was inappropriate and misleading. There was evidence of White drinking heavily up to the time of the tragedy, and White claimed not to believe his own act caused his wife's death. This presented a feature of the case rendering the instruction appropriate. Certainly it was not prejudicial to appellant, and no attack has been made on any other instruction or ruling of the court. The theory of accidental killing has been strongly pressed, but doubtless it was pressed with equal vigor before the jury and the trial judge. The evident desire of the appellant to manufacture evidence in his own behalf and deny the killing was doubtless a reason why the jury did not accept his afterversion of an accidental killing. The testimony of Tennie Turner alone, if believed, amply sustains the verdict. The jury and the trial judge were satisfied, and this court cannot invade the province of the jury, and say that the evidence does not satisfy, when it has satisfied them, and is legally sufficient to sustain the verdict.

The judgment is affirmed.

RIDDICK, J. (dissenting).

I have carefully read the evidence in this case, but I am not able to concur in the judgment of the court affirming the conviction and judgment below for murder in the second decree. The whole evidence introduced on the part of the state as well as the defense shows clearly to my mind that, though the defendant fired the shot that killed his wife, it was the result of an accident, and not intentional on his part. The defendant, Joe White, and his wife, Lou White, lived in a cabin in the bottoms of Bayou Bartholomew. A man by the name of Adams and his wife lived near them. Some persons living in that vicinity became, for reasons not shown in the record, unfriendly towards the defendant, White, and he had received warnings to leave, with threats that if he did not leave he would be killed. Some of his friends advised him to leave in order to avoid trouble with these parties. As White had made preparations to plant his crop, he did not wish to be driven away from his home in that way, and he seems to have made ready to resist an attack. But Adams, his neighbor, became alarmed by these threats, which, though not so stated in the record, seem to have been secretly made, and he contemplated leaving. White heard of this, and went to see him to get him to change his mind, and invited Adams and his wife to come over and spend the night with him. White had been to town on that day, and, probably in order to entertain Adams, or because he liked it himself, he brought a bottle of whisky home with him. Besides Adams and wife, Tennie Turner, a sister of White's wife, spent the night with them. After supper, Adams and his wife, and probably some of the others, indulged to some extent in drink, and became rather lively, and were all in the best humor. It is true that the state undertakes to prove by Tennie Turner, a girl of 14, the sister of Mrs. White, that Joe White had made threats against his wife. The witness shows some feeling against White, and it crops out in the evidence that after the death of Mrs. White her brothers and other members of her family were not friendly towards White, he having caused their sister's death. But notwithstanding Tennie Turner is not a very friendly witness, her evidence, as well as that of other witnesses, shows that these...