Wooten v. State, 4689

• Decision Date: 16 June 1952
• Docket Number: No. 4689,4689
• Citation: 220 Ark. 750,249 S.W.2d 964
• Parties: WOOTEN v. STATE.
• Court: Arkansas Supreme Court

Page 964

249 S.W.2d 964

220 Ark. 750

WOOTEN v. STATE.

No. 4689.

Supreme Court of Arkansas.

June 16, 1952.

Rehearing Denied July 7, 1952.

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.

HOLT, Justice.

Charged with the crime of murder in the first degree, a jury found appellant, Melton Wooten, guilty of murder in the second degree and assessed his punishment at a term of ten years in the State Penitentiary. From the judgment is this appeal.

For reversal, appellant assigns nine alleged errors. In the first three, he, in effect, challenges the sufficiency of the evidence. We hold, however, that the evidence was substantial and sufficient.

Viewing the testimony in the light most favorable to the State, as we must, it was to the following effect:

Between 8:30 and 9:00 P. M., October 1, 1951, appellant and his father had been drinking beer at several beer establishments just outside Strong, Arkansas, and in one, called the 'Lion Drive-In', Melton grossly insulted one of the waitresses. She complained to her employer, R. A. Baker, who immediately asked appellant to leave, which he did. When outside, the waitress, who had also gone outside to serve a customer, heard Melton tell his father what had happened and started to go back but she told him to 'leave before trouble started.' Melton and his father, Robert Wooten, then went immediately across the street to another beer establishment where they were heard to make threats against Baker and that they would use their knives on him. They then returned to the Lion Drive-In and Baker and the Wootens engaged in a fight. During the encounter, in which all three were fighting, the Wootens with knives, and Baker with a billy club, Baker received a cut on the leg which evidently severed an artery or a vein resulting in his death about twenty minutes later from loss of blood.

There was evidence tending to show that appellant and his father were the aggressors and, as indicated, armed with deadly weapons. Malice and intent to kill may be implied from the use of weapons, such as knives, as here, capable of producing death. Wallin v. State, 210 Ark. 616, 197 S.W.2d 26.

Appellant was convicted of murder in the second degree only and specific intent to take life was not an essential element. 'We have many times held that actual intent to take life is not a necessary element of the crime of murder in the second degree. Brassfield v. State, 55 Ark. 556, 18 S.W. 1040; Byrd v. State, 76 Ark. 286, 88 S.W. 974. Malice, however, is a necessary element of murder, either in the first or second degree, and it must be either express or implied.' McGaha v. State, 216 Ark. 165, 224 S.W.2d 534, 536.

It is not clear as to which one of the Wootens inflicted the fatal wound. In the circumstances, however, each could have been found guilty whether acting as a principal or an accessory before the fact. § 41-118, Ark.Stats. 1947, provides: 'The distinction between principals and accessories before the fact is hereby abolished, and all accessories before the fact shall be deemed principals and punished as such. In any case of felony, when the evidence justifies, one indicted as principal may be convicted as an accessory after the fact; if indicted as accessory after the fact, he may be convicted as principal.' Fleeman and Williams v. State, 204 Ark. 772, 165 S.W.2d 62; Burns v. State, 197 Ark. 918, 125 S.W.2d 463.

Assignment four alleged (without supporting argument here) that the court erred in refusing appellant's request that the State be required to elect whether it 'will try the defendant on the standing murder charge or try him as an accessory.' This contention is untenable for the reason pointed out above that there is no distinction between principals and accessories.

In assignment five (again without supporting argument) appellant contends 'that the court erred in refusing to quash the regular panel on motion of the defendant for reason that they, or at least part of them, had heard the trial of Robert Wooten, which is a companion case. .' We find no merit in this contention. The record shows that the trial court announced that it would disqualify any juror who had heard the testimony on the Robert Wotten trial, upon a proper showing of disqualification. No grounds for disqualifying any juror were shown and they were therefore presumed to be qualified.

In assignment six, appellant alleged that the court erred in excusing juror, Payne, on its own motion, at a time when the State had exhausted its challenges and thereby extending the State's challenges, and depriving appellant the right fairly to question the jurors as they were called by the clerk, since appellant had but only one challenge left. On this issue, the record discloses this statement by the court: 'Let the record further show that the...