Whitener v. State

• Court: Arkansas Supreme Court
• Writing for the Court: HART, J.
• Citation: Whitener v. State, 178 S.W. 394, 120 Ark. 30 (Ark. 1915)
• Decision Date: 05 July 1915
• Docket Number: 91
• Parties: WHITENER v. STATE

178 S.W. 394

120 Ark. 30

WHITENER v. STATE

No. 91

Supreme Court of Arkansas

July 5, 1915

Appeal from Benton Circuit Court; J. S. Maples, Judge; affirmed.

Judgment affirmed.

Walker & Walker and McGill & Lindsey, for appellant.

Counsel argue the points stated in the opinion, but cite no authorities.

Wm. L Moose, Attorney General, and Jno. P. Streepey, Assistant, for appellee.

1. The testimony was conflicting, but there was sufficient legal evidence to sustain the conviction, and the jury's verdict should stand. 109 Ark. 130; 109 Ark. 138.

2. Instruction 6 was correct, and has frequently been approved by this court. 77 Ark. 334; 110 Ark. 606-611. Instruction 7 also was correct. 105 Ark. 608-613.

3. The prosecuting attorney's argument was, if erroneous invited error, which was cured by the court's admonition. 105 Ark. 615.

OPINION

HART, J.

Arthur Whitener was indicted for murder in the second degree charged to have been committed by killing Nathan Anthony in Washington County, Arkansas. The defendant took a change of venue to Benton County, where, in a trial before a jury, he was convicted of manslaughter and his punishment assessed by the jury at three years in the State penitentiary. From the judgment of conviction the defendant has appealed.

The facts as proved by the State are substantially as follows:

Nathan Anthony was killed by the defendant Arthur Whitener on the 1st day of July, 1914, on the farm of Joe Frost, in Washington County, Arkansas. The defendant struck deceased with the prongs of a pitchfork, one prong of which penetrated the abdominal cavity of Anthony, and caused his death. At the time the deceased, Floyd Anthony, a son of the deceased, the defendant and Lige Garret were engaged in hauling oats for Joe Frost. The deceased and the defendant were in one wagon, and Floyd Anthony and Lige Garret were in another. Both wagons had frames on them and each wagon had a pitchfork in it to be used in loading the oats. As the two wagons went down into the field, the wagon in which the defendant and the deceased rode was about forty yards ahead of the other. The deceased was standing in the front of the wagon driving, and the defendant was sitting on the oat frame in the rear of the wagon. The witnesses in the rear wagon saw the deceased turn toward the defendant and begin talking to him. They could see him making motions with his hand and could see his mouth working, but could not hear what he said. Garret said that his attention was momentarily called away, and that when he again looked, he saw the defendant jabbing at Anthony with the pitchfork, and saw one or two strokes. He said that Anthony fell on the side of the wagon, and the defendant caught hold of him and pulled him back into the wagon and turned the fork around and struck him across the head with the handle. Anthony then got out of the wagon and went home, where he died as a result of the wounds received.

Floyd Anthony testified that at the beginning of the difficulty, his father was standing in the front end of the wagon with his left hand holding the lines; that the defendant, in jabbing his father with the pitchfork, held it with his right hand and jabbed his father three or four times; that his father fell down on the side of the wagon and the defendant caught hold of him with his left hand and pulled him back into the wagon and struck him over the head with the handle of the pitchfork.

The physicians who attended Anthony testified that there was a wound on the side of the head above the ear, but that this wound did not penetrate the skin, and in no wise contributed to his death; that they found three punctured wounds in the upper part of his abdomen on the right side caused by the prongs of the pitchfork; that one prong of the pitchfork penetrated the abdominal cavity, and that Anthony died from the effects of this wound; and that there were three small punctures on the left side of the deceased, but that these were very short, and just barely went through the skin.

The wife of the deceased testified that he had gone to a speaking the night before, and before going out, he had taken off his old overalls and put on a new pair; that he put on the old pair the next morning, and that when he was brought home after the difficulty, she saw his overalls taken off, and there was no knife or weapon of any kind in his pocket; and that his knife and tobacco were in his other overalls. She denied that she had told a neighbor that a few days prior to the difficulty, her husband had thrown a hammer at the defendant.

Lige Garret, being recalled for further cross-examination, testified that he had worked on the Frost place with the deceased for two years; that the deceased usually carried a big, heavy knife with a broad blade about two inches long; and that deceased had told him, some days before the fatal difficulty, that he had cursed the defendant, and come very near knocking him in the head with a hammer.

In behalf of the defendant it was shown that Mrs. Anthony had told a neighbor that her husband and the defendant had had a difficulty in which her husband threw a hammer at the defendant, and that this was some time before the time of the killing.

Another witness testified that during the previous spring the deceased had told him that he was going to whip Whitener.

A number of witnesses testified that they were well acquainted with the defendant, and knew his reputation for peace and quiet in the neighborhood where he lived, and that it was good.

The defendant testified in his own behalf. He admitted the killing, but further testified that the deceased became angry at him and began to curse him, and finally ran his hand into his right-hand pocket and told defendant that he would "cut his heart out" right then; that he then grabbed the pitchfork, which was lying in the wagon, and punched deceased twice to keep him from cutting him with the knife; that he knew deceased had the knife in his pocket because he had seen him take it out that morning, and cut a chew of tobacco with it; that after he had punched him with the fork, he turned the fork around and hit him on the head with it; that he did not intend to kill deceased, and was only trying to keep him from cutting him with the knife; that he did not strike him with the pitchfork until he had threatened to cut his heart out, and had run his hand in his pocket and started toward him; and that after the death of Anthony he went to the sheriff and surrendered himself.

It is contended by counsel for the defendant that the evidence is not sufficient to support the verdict. We can not agree with them in this contention. According to the testimony of the wife of the deceased, the latter did not have a knife on the morning he was stabbed, and the jury was fully warranted in...