Whitley v. State

• Court: Arkansas Supreme Court
• Writing for the Court: WOOD, J.
• Citation: Whitley v. State, 169 S.W. 952, 114 Ark. 243 (Ark. 1914)
• Decision Date: 28 September 1914
• Docket Number: 134
• Parties: WHITLEY v. STATE

169 S.W. 952

114 Ark. 243

WHITLEY v. STATE

No. 134

Supreme Court of Arkansas

September 28, 1914

[Copyrighted Material Omitted]

Appeal from Prairie Circuit Court, Northern District; Eugene Lankford, Judge; affirmed.

STATEMENT BY THE COURT.

The appellant was indicted for murder in the first degree, and was convicted of murder in the second degree and sentenced to twenty-one years in the penitentiary for the killing of one Wesley Munn, and has duly prosecuted this appeal.

Jess Whitley and Wesley Munn were rival suitors for the hand of Miss Bessie Baty. The young men and the young lady mentioned lived in the town of Des Arc. The young men had been assiduous in pressing their respective suits, and the young lady had decided in favor of Munn. This aroused the jealousy of Whitley to an extreme degree.

On Sunday evening prior to the killing, which occurred on Friday, January 2, 1914, Whitley begged Miss Baty to marry him, and she told him that she would not give up Mr. Munn for anybody, whereupon Whitley said "he wished Wesley Munn was in hell; that he could kill him like a chicken." The killing occurred about 9 o'clock in the morning. About two hours before the killing, Whitley purchased a new .38 Colt's double-action pistol. Immediately after the shooting, Whitley was seen going toward his store, and upon being asked what was the matter, said, "I got one long tall son-of-a-bitch." This was said in his usual tone of voice and he appeared to be calm.

A witness who was in the store when Whitley entered some five or six minutes before the killing occurred, stated that he looked sick and his eyes were red; that she asked him if he was sick; he replied, "No," then drew a pistol and turned around. Witness said to him, "You must be desperate," and he replied, "I am," and turned and walked out of the store and went east.

Whitley and Munn, just before the shooting occurred, were seen standing in front of one Bethel's store, talking. The witness who observed them, stated that at that time neither was making any movements. The witness started down the street, and, on hearing shots fired, turned and looked around and saw defendant shoot at Munn. Munn had his hands drawn up at his elbows, and hallooed in a loud voice, "Oh, My God; he has shot me." During the shooting, Munn was turning from Whitley; Whitley was close to him--about five or six feet from him when the last shot was fired. Munn had one shot in his breast, one in his right side, and two in his left hip. Another witness testified that Munn had six shots that one entered from the front, one from the side and four from the back.

The testimony of other witnesses tended to show that when they heard the shooting, they looked in that direction and saw one man following another and shooting at him. One witness testified that just before the shooting occurred, he observed Whitley walking along back and forth in front of Bethel's store. Immediately after the shooting, witnesses reached Munn, who was leaning against Bethel's store door, and he had commenced to fall. He fell to the floor and expired in a few moments. Witnesses examined his pockets and found no weapons.

The above are succinctly the facts as they were adduced in behalf of the State.

Witness Bethel testified, over the objection of appellant, that deceased came in witness's store just before the killing and he and witness were joking just before he left the store and deceased seemed to be in a mirthful mood. Appellant excepted to the testimony as to deceased's frame of mind before the killing.

The defendant, in his own behalf, testified that Miss Baty had told him on the Sunday afternoon before the killing that Munn had said that before she and Whitley should marry, he, Munn, would kill them both; that in the same conversation she said that she cared more for the defendant than any one else she had ever been with. He denied that he had made any statements to the effect that he wished Munn was in hell, or that he could kill him like a chicken. He stated that he did not buy the pistol for the purpose of hunting up Munn and killing him, but for the purpose of protecting himself. Munn would not speak to defendant, and his manner was not friendly toward him. Defendant was a much smaller man than Munn, and had a crippled hand.

Defendant was out collecting bills, and in going to see a party to collect a month's rent, he had to pass by Bethel's store. There he saw Munn. He had, prior to that time, received a letter with Bessie Baty's name signed to it, which he was sure had been written by Munn. He was out in the middle of the sidewalk when Munn came out of Bethel's store. Munn hesitated, and they faced each other, and defendant asked Munn "what his idea was for fixing up the letter the way he did." Munn replied, "You must be looking for trouble, and right now you will get it, and put his hand to his hip pocket and made a demonstration as though he were going to draw a pistol, and defendant drew his gun and shot him. When he had shot about twice, Munn commenced to move backward and sideways, backing off with his left side to defendant. Defendant advanced four or five steps toward him, and continued shooting. Munn, during the time, kept his right hand back under his coat and defendant looked for him to commence shooting at any time.

Several witnesses testified as to the good reputation of the defendant for peace and quietude.

The above are substantially the facts as they were developed, with much detail, in the testimony that was taken at the trial.

About thirty minutes before the jury returned its verdict, the jury came into court and stated that they had not agreed on a verdict. The court thereupon gave to the jury the following instruction:

"Gentlemen, this is an important case, and I do not want to hurry you, but hope you can arrive at a verdict in this case. There ought to be no difficulty in arriving at a verdict where the evidence is as plain and short as it is in this case; consider it carefully, but report as soon as possible." The defendant objected and excepted to the ruling of the court in giving the instruction. The jury had then been deliberating about six and a half hours.

The court also gave, over the objection of defendant, the following instruction:

"In this case the defendant sets up self-defense as his excuse for the killing. The law does not require him to establish his defense by a preponderance of the evidence, but it is sufficient if the testimony in the whole case raised a reasonable doubt as to whether he acted in necessary self-defense or not." The appellant duly excepted to the ruling of the court.

The court also gave the following instruction:

"There has been some evidence introduced bearing upon the good character of the defendant prior to the killing which you should consider in making up your verdict, but you are instructed that good reputation prior to the commission of the crime is no defense, and the evidence is introduced for the purpose of throwing light upon the question as to who was the probable aggressor; and if you are convinced by the evidence beyond a reasonable doubt that the defendant committed the crime as charged, the fact that his reputation was good prior to that time would be no defense." To the giving of this instruction, the defendant objected and saved his exceptions.

The appellant offered several instructions to the effect that the jury should consider the evidence of the good character of the defendant for peace and quietude, and that such good character, if proved to the satisfaction of the jury, might of itself create such a reasonable doubt in their minds as would justify them in returning a verdict of acquittal, and to the effect that defendant's good character for peace and quietude, when proved, was a strong circumstance to determine who was the probable aggressor, and also to determine whether or not the defendant shot in self-defense. These prayers for instructions were refused, to which appellant duly excepted.

Other instructions fully defining the various degrees of homicide and correctly declaring the law as to self-defense, were given, to which no objection is urged here.

Other facts stated in the opinion.

Judgment affirmed.

J. G. & C. B. Thweatt, F. E. Brown and W. A. Leach, for appellant.

1. When the jury returned into court and stated that they had not agreed upon a verdict, the court erred in stating that "there ought to be no difficulty, etc., where the evidence is as plain and short as it is in this case." It in effect nullified the instructions with reference to a reasonable doubt, by giving the impression that there was in fact no ground for a reasonable doubt; and, since, if the evidence of defendant's innocence had been plain, it would have been the duty of the court to direct a verdict of acquittal, the jury, in the absence of such direction, were left to the assumption that the court looked upon the evidence of guilt as plain. Const., art. 7, § 23; 60 Ark. 49; 51 Ark. 147; 73 Ark. 573.

2. The court erred in its instruction as to the character of the defendant, in limiting the evidence as to character to the purpose of throwing light on the question as to who was the probable aggressor. It has a broader purpose than that. Character is a substantive fact, to throw light on the defendant's guilt or innocence, to be considered in connection with all the other evidence in the case. 104 Ark. 162-183. See, also, 28 Ark. 164; 34 Ark. 742; Hughes, Instructions to Juries, 785, § 757; 2 Brickwood Sackett, Instructions, § 2480; 5 Enc. of Law, 867; 3 Enc. of Ev. 8; 163 N.Y. 11.

3. It was error to send the jury to view the place of the killing without accompanying them himself, or sending some one to point it out to them,...