ADCOCK V. STATE. 1055 ADCOCK V. STATE. Opinion delivered September 23, 1929. 1. CRIMINAL LAW — CONTINUANCE—ILLNESS OF COUNSEL.—In a prosecution for murder where both attorneys for defendant were present at the trial, the court did not a'au ge its discretion by refusing a continuance, although one of the attorneys was ill and had been in bed the day before. 2. HOMICIDE—ADMISSIBILITY OF DYING DECLARATIONS.—It is within the province of the court to hear the circumstances under which
1056 ADCOCK V. STATE. [179 alleged dying declarations were made and to determine whether they are adniissible. 3. HOMICIDE—EFFECT OF DYING DECLARATIONS.—Atter admission of dying declarations, it is the province, of the jury to determine their credibility. HOMICIDE—DYING DECLARATION.—In a prosecution for murder testimony that, after deceased had been shot by defendant, he ibegan to pray for defendant,.was admissible as a dying declaration for the purpose of showing the state of mind of de d toward defendant at the time of the shooting. HOMICIDE—SUBSEQUENT CONDITIONS OF LOCALITY.—Where defend-! ant shot deceased while standing in a wagon in a country road which was little traveled, testimOny of a witness who examined ' this road 'on the day following the shooting, deScribing the eon-- - dition 6f the road with reference to the wagon tracks, was admissible, as the question whether the condition of the road had • changed in the meantime was for the jury. 6. , HOMIGIDD—FOUNDATION FOR DYING DECLARATION.—In a prosecution ' for murder, teStimony showing that a • dying declaration had been made, written down and signed by deceased at a time when .: he thought be' was going to die and when death was impending, was admiSsible, not being open to , the objection that the written statement was the best evidence. CRIMINAL LAW—EVIDENCE AS TO LOCATION OF BULLET.—In a prosecution for murder, testimony of a physician as to the location of a bullet was admissible, although an X-ray picture had been made, as the picture would show only the location of the bullet, while the physician could testify as to the location both of the bullet and of the wound. 8. CRIMINAL LAW—INSTRUCTIONS AS TO BURDEN OF PROOF.—In a proSecUtion for murder, instructionsa's to burden of proof approved. 9. CRIMINAL LAW— BURDEN OF PROOF.—Although defendant admitted having killed deceased, the burden on the whole case rested upon the State. Appeal 'from Miller Circuit Court; James H. Mc-Collum, Judge; affirmed. STATEMENT OF FACTS. This is an appeal from a judgment of conviction upon a verdict finding the defendant guilty of murder in the second degree and fixing his punishment at five years in :the State Penitentiary. The material facts may be,briefly stated as follows.: The record shows - that in the first part of N,ovember,
ARK.] ADCOCK V. STATE. 1057 1928, Minor Patterson was shot with a pistol by Horace Adcock, in Miller County, Arkansas, and died in a hospital at Texarkana., Arkansas, the next morning, about 7 :30 o 'clock. According to the testimony of Jim Patterson, he was a nephew of Minor Patterson, and was a cousin of Horace Adcock. Early in the morning of November 6, 1928, he went to the home of Minor Patterson and rode with him in an automobile to a town about fOur miles. distant. About the middle of the afternoon they started home, and his uncle was driving the car. They traveled the main road until they got within a, half mile of his uncle's house, when they turned up a lane, for the purpose of going home. Just after they started up the lane they saw a wagon and team across the road two or three himdred yards away. When they got within about forty yards of the wagon, they saw Horace Adcock standing up in it. When they got close to the . wagon, Adcock held out his hand as if to stop them. The wagon and team were in the way of the car, and they could not get by. The car was stopped by the side of the wagon. Adcock spoke to Minor Patterson about a pair of gam-boots, and the latter replied that they were at Louis Wood's. Adcock told Minor Patterson that he had promised him a new pair of boots, and that he was going to have a new pair right then. Minor Patterson told Adcock that he was not going to give him any new boots, and Adcock then shot him. Witness jumped out of the car, and started to run. Minor Patterson told Adcock not to shoot any more. Adcock then demanded pay for his boots, and Minor Patterson told witness to give him some money. Witness gave Adcock two or three dollars in money. The feet of Minor Patterson had become paralyzed, and Ad-cock helped witness to move him away from the steering wheel in the car. The team hitched to the wagon had run away with it when the shot was fired, and witness drove away with Minor Patterson in the car with him. When they had gone about one hundred yards, Minor
'1058 ADCOCK V. STATE. [179 Patterson began to pray for AdCock. When they ar-- rived-at the home . of Minor Patterson, they thlephoned ' fat his • physician, and Dr. J. R. Allen came,- and- carried Minor Patterson to a hospital at Texarkana, Arkansas. It • was . 'about three o'clock inthe 'afternoon when 'Minor Patterson was shot, and be died-about 'Seven 'o'clock the ne .xt . Tnnrni ng Witness- neVer saw any pistol on the per-• son of Minor Patterson at the scene of the killing, and ;n6vOr a . .1,v a:pistol at Minor'Patters . On's house. Adcock ihad• two pistols when he followed witness frOm the car, and witness lhought • he 'heard one- of the pistols 'snap. Other evidence ., showed that Adcock : had 'become -'angered' at Minor- Patterson during. the • preceding :sum-•mer g bout a pair of gnm-boots 'which they -had carried on a' fishing trip, and which Adcock thought his unCle " had left in the'sun during the summer and which caused them to 'crack open. He Wanted.his uncle to pay for the .boots, and his uncle-declined to do so.because he Said ihat. he was not the cause of them.being'ruined. - The Widow of' the decease'd testified that the defend-tant cAme to their`house%On the day of' the killing and -asked to see her husband. She told him 'that her'hns-• band was not at home, and the 'defendant replied' that lie -wduld haVe to get him a' pair of boots that day of that he ' Would'gethim: She Offered-to pay the defendant for the beots;but he , refused to take it. A sister of the deceased diso : t0§tified . that, a short time ! before the killing oC-' durred, the defendant came iby* . her housei'and claimed ' that this unele bad ruined his boots and 'would have to •get him a new pair. When he'left the house, the def end-• ant Said that 'he' was , going up the rOad and wait-until his --iniCleo g nie by. The defendant said that his uncle was going to- pay , him for the boots or get him a new pair. The 'defendant then went on down tke road about two hnndred -yards, and waited-until his uncle came along, and : shot him. The defendant told her that his .uncle would-pay for the boots or one of them would never top• -thei hill --at Rufus Butler's. The killinz occurred near the top of the hill at Rufus Butler's place.
ADCOCIC V. STATE. . 1059, The deputy prosecuting attorney wrote down the dying,declaration of Minor Patterson, detailing the circumstances of the killing sUbstantially as above stated. Deceased stated,that; after his,nephew had shot him, he cursed him, •and also snapped his pistol at his cousin, who was in . the car with him. .Deceased told defendant that he had . left his boots at a neighbor's house, and the defendant said, "I'll just_kill you," and then fired at him. According to , the testimony of the defendant, he. rgeroy- asked his uncle to pay hini for . the boots, and his uncle, replied that 7 he-would not do so, arid drew a pistol and . tried.to ;shoot . ' hi . m with it. The defendant then drew his . own pistol and shot. his uncle is his own self T defense. He denied having threatened to kill . his. uncle: He denied also that he had any ill feeling.towards. his uncle. Other witnesses for the State testified that.he had become angered at 'his uncle, and had threatened him several times during the ,sunimer preceding the While . the testimony is very voluminous, we think the above is sufficient to present the assignments of error relied upon for a reversal of the judgment. Wilt Steel and Pratt.: P. Bacon, for appellant. • Hal L. Norwood, Attorney General,- and Pat Mehaffy, Assistant, .for appellee. . HART, C. J., (after stating the facts): It is earnestly - contended by counsel for appellant that the circuit court erred in refusing to continue the case on account of the illness of one of his attorneys: The record shows that both of the' attorneys for the defendant represented him at his examining trial: After the indictment was found, the case was set for trial at an adjourned term of court. BOth of his attorneys were present; but:one of them represented that he was ill with appendicitis, and had.been in bed all the day before. The court refused to continue the case, and both the attorneys actively participated in the trial. The record shows that the defendant was ably and skillfully represented atthe and,that=no injury
1060 ADCOCK v. STATE. [179 resulted to him on account . of the illness of one of his attorneys. Under these circumstances it cannot be said that the circuit court abused its discretion in overruling the defendant's motion for a continuance. Holmes V. State, 144 . Ark. 617, 224 S. W. 394, and C. H. Robinson Co. v. Hudgins Produce Co., 138 Ark. 500, 212 S. W. 305. ..IL is next contended that -the court erred in permitting Jim Patterson to testify that, immediately after they left the scene of the shooting, Minor Patterson began to pray for the defendant, Horace Adcock. Witness said that they had not gone a hundred yards when the praying commenced. The record shows that, when objection was made to the testimony, the court stated that he 'wOuld overrule the objection for the present. The witness drove home with his uncle, and telephoned for a doctor. The physician came, and at once carried Minor Patterson to a hospital at . Texarkana. At about 7:30 o'clock in the evening the deputy prosecuting attorney came and took down his dying statement, after Patter-son had declared that he knew he was going to die. He did die the next morning at about 7 :30 o'clock. The physician who attended him testified that he was shot on the right side, between the eighth and:ninth ribs, and that the bullet lodged in the muscle. The physician said that the bullet was calculated to produce death. It is within the province of the court to hear the circumstances under which the alleged dying declarations were made . and to determine whether they are admissible. After they are made, it is within the province of the jury to weigh them and the circumstances under which they were made, and . give them such credit upon the whole evidenCe as they may think they deserve. Jones v. State, 88 Ark. 579, 115 S. W. 166; Robinson v. State, 99 Ark. 209, 137 - S. W. 831 ; Rhea v. State, 104 Ark. 162, 147 S. W. 463; Stewart v. State, 148 Ark. 540, 230 S. W. 590; and Low-mack v. State, 178 Ark. 128, 12 S. W. (2d) 909. In :these cases the court has held that the inference that the declarant was under a sense of certain and
ARK.] ADCOCK v. STATE. 1061 speedy death may not only be found from what the de-clarant . stated on the subject, hut also from the character of the wound itself and the fact that he died within a short time; in connection with the other attendant circumstances. In the first place, the trial court admitted the testiMony of tbe witness to the effect that the deceased had prayed for the defendant without first ascertaining whether the proper foundation had been laid for ad-Miffing the testimony as a dying declaration, but that this ruling was temporarily Made. The record shows that • soon thereafter the trial courf did hear testimony on-thiS point, and made an affirmative finding to the effect that a. proper foundation for a dying declaration bad been laid. He did not rule out the testimony referred to, and it is fairly inferable . that he considered it admissible a g-a dying declaration. It was admissible for, that purpose as a declaration showing the state . of mind of the deceased to the defendant at the time of the shooting. Hence we do not think that the court erred in admitting this testimony. It is next insisted that the court erred in allowing witnesses to testify that, on the next day after the shooting, they examined the scene, and allowed the:m to deScribe the condition of the ground with reference te; the wagon tracks across the road and tracks of the team hitched to the wagon. It is claimed that, the shooting having ocCurred on a public road, the condition of the ground easily changed, and that the testimony could shed no light as to'the appearance of the ground at the time of the shooting. This was' a matter for the jury. The evidenCe showed that the shooting occurred on a country road which was not traveled much. The jury was.the judge of the credibility of the witnesses, and could tell from their descriptions of the ground whether or not there had . been sufficient passage of •other teams and vehicles to materially change the condition of the ground from that which existed at the time of the shooting.
1062 ADCOCK V. STATE. [179 It is next insisted that the court erred in admitting the oral testimony of the witness Cook as to the dying declaration, which had been reduced to writing. It is insisted that the written declaration is the best evidence: The court only admitted the testimony of Cook to show that the dying.declaration was made, written down, and signed by the deceased at a time when he thought he was going to die, and that his death was immediate and impending. Under the authorities above cited, the testimony of Cook was necessary to lay a proper foundation for the -dying declaration. It is next insisted that the court erred in allowing Dr. Allen to testify as to the location of the bullet, because an X-ray picture had been made, and the X-ray photograph would be .the best evidence of the . location of • the bullet. We do not agree with counsel in this contention. The physician had practiced medicine for more than twenty years, and was competent to testify not only as to the location of the wound, which he could do from. actual observation, but-also as to the location of the bullet, which he could know by probing in the wound. The X-ray photograph would only show the location- of the bullet. If the body of the deceased showed no place of exit of the bullet, it was necessarily lodged somewhere within the body. The exact location was. not material, because the point of- entrance cOuld be observed, and the physician testified that the Wound was•calculated to produce death, and it actually did produce death on the next morning after the deceased was shot. Hence no prejudice could possibly have resulted to the defendant from the admission of this testimony. Finally, it is insisted that the court erred in giving State's instruction No. 9, which reads as follows: "The killing being proved, the burden of proving circumstances of mitigation that justify or excuse the homicide shall devolve upon the accused, unless, by proof on the part of the prosecution, it is sufficiently manifest that the offense only amounted to manslaughter, or that
ARK.] ADCOCK V. STATE. 1063 the accused was justified or excused in committing the homicide, provided you find from the evidence on the whole case, beyond a reasonable doubt,- that the defendant is. guilty. ' tbis connection it may also be said that the court gave the defendant's instruction No. 6, which reads as follows : "In this case the killing is admitted, and the burden _ of proving circumstances of mitigation that justify or excuse _the homicide shall devolve on the accused, unless, . by proof on the part of the prosecntion, it . is sufficiently manifest that the offens'e only amounts to manslaughter, or that the accused was justified or excused in committing the homicide ; and you are further instructed, however, that upon the whole case the burden is on the prosecution to establish defendant's guilt beyond a reasonable doubt." -It is insisted that the instructions are conflicting. We do not think so. The killing was admitted by the defendant while he was on the stand, and his theory was that it was done in necessary self-defense. The court properly gave to the jury § 2342 of Crawford & Moses' Digest, and qualified it by telling the jury that the burden of the whole case rested upon the .State. The fact that the defendant admitted the-killing, and that it was established by the undisputed proof to have been done by the defendant, did not- relieve the State from establishing the guilt of the defendant by evidence beyond a reasonable doubt, because in any event the burden "of • proof on the whole case rested upon the State. State, Tignor v. 76 Ark. 489, 89 S. W. 96; Parsley v. State, 148 Ark. 418, 230 S. W. (587; and Sheppard v. State, 160 Ark. 315, 254 S. W. 657. We find no reversible error in the record, and the • judgment is •therefore affirmed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.