Wooten v. State, 4688
Decision Date | 16 June 1952 |
Docket Number | No. 4688,4688 |
Citation | 249 S.W.2d 968,220 Ark. 755 |
Parties | WOOTEN v. STATE. |
Court | Arkansas Supreme Court |
Walter L. Brown, Love & Love and Stein & Stein, all of El Dorado, for appellant.
Ike Murry, Atty. Gen., Dowell Anders, Asst. Atty. Gen., for appellee.
Robert Wooten was convicted of murder in the second degree for the homicide of R. A. Baker, and brings this appeal. The Motion for New Trial contains nine assignments, 1 which we group and discuss in topic headings.
I. Sufficiency Of The Evidence. Assignments 1, 2, and 3 in the Motion for New Trial are included in this topic; and we review the evidence in the light most favorable to the verdict, as is the rule on appeal. Bly v. State, 213 Ark. 859, 214 S.W.2d 77; and Yarbrough v. State, 206 Ark. 549, 176 S.W.2d 702. The deceased, R. A. Baker, owned two roadhouses, or beer joints, on U. S. Highway 82, near Strong, Arkansas. These taverns were located directly opposite each other on the highway. One establishment was known as the '82 Drive-In', and was managed by Baker's employee, Clegg Smith. The other establishment was the 'Lion Cafe', and was managed by Baker in person. At the Lion Cafe there were waitresses, who served food and beverages to patrons at tables inside the building, and to patrons in cars outside the building.
On October 1, 1951, appellant, Robert Wooten, aged 52 years, and his son, Melton Wooten, 2 likewise a mature man, drove to the 82 Drive-In at about 4:00 P.M., and each drank a considerable quantity of beer. For convenience, we refer to these men as 'Robert' and 'Melton'. After a time they left the 82 Drive-In and went across the highway to the Lion Cafe. That they had been drinking was obvious. They both entered the building, and Robert went to the restroom. Melton stopped at a table to talk to some friends. When the waitress came to the table, Melton placed his hands on her in a too familiar and highly suggestive manner, and she slapped him. The waitress reported the occurrence to Baker, who was then in the kitchen; and Baker went to Melton and asked him to leave the place on account of his condition and conduct. Baker escorted Melton and Robert to the door, and the latter said as he was leaving that he would be back and that no one could throw him out.
Robert and Melton left the Lion Cafe and went across the highway to the 82 Drive-In, where they seated themselves at a table and ordered some more beer. While so seated they discussed--loud enough to be heard by a witness--the experiences with Baker at the Lion Cafe and what they intended to do about it. Melton told Robert that they should 'go back over there and settle it': and Robert Wooten said:
When Robert and Melton ordered a second round of beers, in the course of the said conversation, Clegg Smith, the manager, refused to serve them and closed up the 82 Drive-In for the night. It was then about 8:30 P.M. Robert and Melton went back across the road to the Lion Cafe. Melton went in first, followed by his father, Robert. They went to the counter and ordered some beer. Baker told them to leave and picked up a sawed-off end of a billiard cue, and escorted them out the door to the open space between the cafe and the highway, where some cars were parked for service. It was in this open place that the struggle ensued which resulted in Baker receiving fatal wounds.
When Baker accompanied Robert and Melton outside the Lion Cafe, Robert dropped behind. Someone screamed a warning to Baker that Robert was attacking from behind; and this was just as Robert Wooten slashed Baker on the shoulder. Baker wheeled and hit Robert on the head with the pool cue, then being used as a billy. 3 The blow knocked Robert Wooten to the ground, but he retained his grasp on the knife which he was using as a weapon. Melton attacked Baker and they struggled, and while in such struggle Robert, from a crouching position, struck at Baker with the knife and inflicted a serious injury on the left thigh. Others intervened to end the struggle. Baker was rushed to the hospital, but died in a matter of minutes. The physician who treated Baker testified of his wounds as: (1) a slash in the shoulder 3 inches long and 1 inch deep; (2) a slash across the chest 4 inches long; and (3) the wound in the left thigh that was 3 or 4 inches long. The physician testified that Baker died from loss of blood from the cut last mentioned.
From the foregoing facts, it is clear that the jury could well have found that Robert and Melton plotted the fatal attack when they were seated in the 82 Drive-In, and then returned to the Lion Cafe to carry their plans into execution. Robert's words:----was evidence of premeditation. When the homicide is without provocation and done with a deadly weapon, the law will imply malice. Under all the facts, the trial court was correct in instructing the jury as to murder in the first degree and second degree; and there was ample evidence to sustain the verdict for second-degree murder. See Bly v. State, 213 Ark. 859, 214 S.W.2d 77; Everett v. State, 213 Ark. 470, 210 S.W.2d 918; McGaha v. State, 216 Ark. 165, 224 S.W.2d 534; and Ballentine v. State, 198 Ark. 1037, 132 S.W.2d 384. There is no assignment in the motion for new trial claiming an error in any of the instructions.
II. Events Occurring In Absence Of Defendant. In assignment No. 4 in the Motion for New Trial, appellant claims that the Court erred in allowing the Prosecuting Attorney to tell the jury--in the opening statement--as to what happened in the Lion Cafe when Melton put his hands on the waitress and she slapped him. Likewise, in assignment No. 5 in the Motion for New Trial, the appellant claims that the testimony of the witness was inadmissible as to such occurrences. The appellant's objection is, that Robert Wooten was not in the Cafe at the time of the occurrence, and could not be charged with the remarks then made. In denying the appellant's objection to the Prosecuting Attorney's opening statement, the Court said:
Trial courts have wide discretion in supervising trials, including opening statements. Stanley v. State, 174 Ark. 743, 297 S.W. 826. Of course, if the testimony was admissible in the trial, then there was no error in allowing the Prosecuting Attorney to refer to it in the opening statement. Morton v. State, 180 Ark. 197, 20 S.W.2d 872.
We hold that the evidence was admissible as limited by the Court to exclude conversations in Robert Wooten's absence. After Melton's experience with the waitress, Baker escorted Melton from the Cafe. Witnesses testified that they heard Melton report the occurrence to Robert, and then heard Robert make the remark: ...
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Smith v. State, 4752
...said answers. All the order assignments have likewise been found to be without merit, so the judgment is affirmed. 1 See Wooten v. State, 220 Ark. 755, 249 S.W.2d 968, and cases there cited.2 See Eyer v. State, 112 Ark. 37, 164 S.W. 756, Ann.Cas.1916B, 30; Goynes v. State, 184 Ark. 303, 42 ......
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