{ "id": 1407896, "name": "Wacaster v. State", "name_abbreviation": "Wacaster v. State", "decision_date": "1927-02-21", "docket_number": "", "first_page": "983", "last_page": "991", "citations": [ { "type": "official", "cite": "172 Ark. 983" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "212 S. W. 84", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "138 Ark. 594", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1566965 ], "opinion_index": 0, "case_paths": [ "/ark/138/0594-01" ] }, { "cite": "119 Ark. 152", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8718273 ], "opinion_index": 0, "case_paths": [ "/ark/119/0152-01" ] }, { "cite": "133 Ark. 149", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1575120 ], "opinion_index": 0, "case_paths": [ "/ark/133/0149-01" ] }, { "cite": "279 S. W. 997", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "170 Ark. 329", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1371578 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/170/0329-01" ] }, { "cite": "224 S. W. 226", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "145 Ark. 403", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1586141 ], "pin_cites": [ { "page": "406" } ], "opinion_index": 0, "case_paths": [ "/ark/145/0403-01" ] }, { "cite": "179 S. W. 1012", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "120 Ark. 494", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1561080 ], "opinion_index": 0, "case_paths": [ "/ark/120/0494-01" ] }, { "cite": "252 S. W. 584", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "143 Ark. 425", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1589426 ], "opinion_index": 0, "case_paths": [ "/ark/143/0425-01" ] }, { "cite": "159 Ark, 435", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8722697 ], "opinion_index": 0, "case_paths": [ "/ark/159/0435-01" ] } ], "analysis": { "cardinality": 681, "char_count": 17662, "ocr_confidence": 0.484, "pagerank": { "raw": 1.698247261044293e-07, "percentile": 0.7003763539882055 }, "sha256": "4c3dbca170100336b33caf2aef706508257043e79e9cc4c5be9227e576b5ddf9", "simhash": "1:721775db988681f3", "word_count": 3230 }, "last_updated": "2023-07-14T19:50:04.452939+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Wacaster v. State." ], "opinions": [ { "text": "Kirby, J.,\n(after stating the facts). No error was committed by the trial court in refusing appellant\u2019s prayer for instructions numbered B and F, 4 and 23. Instructions B and F were argumentative, and, in effect, amounted to instructions upon the weight of the testimony, telling the jury what importance should be attached to the evidence or lack of evidence, which this court has said should not be done. Bullard v. State, 159 Ark, 435. Moreover, these instructions were fully covered by instructions numbered 16, 17, 18, 22 and 23, given by the court.\nInstruction No. 4, refused, was likewise fully covered by instruction No. 20, correctly given by the court upon its own motion, and it was unnecessary to give more than one instruction of the law applicable to the particular facts. Housely v. State, 143 Ark. 425, 252 S. W. 584.\nNeither was error committed in refusing to give requested instruction numbered 23, telling the jury \u201cif any of the testimony in the case is susceptible of two constructions, one of guilt and one of innocence, then it is your duty to give it the construction of innocence.\u201d The court correctly instructed the jury on the.law relating to weighing the testimony, the presumption of innocence and the question of reasonable doubt, and there -was no attempt to prove the guilt of defendant by inferences to be drawn from facts and circumstances established by the testimony. DeShazo v. State, 120 Ark. 494, 179 S. W. 1012; Cooper v. State, 145 Ark. 403, 406, 224 S. W. 226; Wawak and Vaught v. State, 170 Ark. 329, 279 S. W. 997.\nRelative to the assignment that error was committed by the trial court in permitting the instructions, two oral instructions not transcribed, hot included, sent to the jury room without the consent of appellant or his counsel, it will suffice to say that, since the case is to be reversed on another point or assignment of error, and remanded for a new trial, at which no such ground for objection is likely to occur, we do not find it necessary to pass upon it now.\nThis court has concluded, however, that error that calls for reversal of the judgment was committed by the trial court in his conversation with, or instruction to, the foreman of the jury in the hall outside of the jury room, and away from the presence of defendant and his attorneys. The court, in explanation of this incident as set out in the statement, said:\n\u201cI told him, in answer to -his inquiry, that the likelihood, of a parole was outside of their consideration of the case, and they should not let that weigh with them at all, and I told him at that time to mention that fact to the jurors, that they shouldn\u2019t take into consideration the likelihood of pardon in the case at all, because it wasn\u2019t a matter for them to determine. Just fix the punishment, whatever it was, or what they thought should be fixed.\u201d\nSection 3192, Crawford & Moses\u2019 Digest, provides how a jury, after it has retired for deliberation, shall acquire information on any point of law or about any part of the evidence, if there is disagreement, that they must require the officer to conduct them into court, where the information required must be given in the presence of, or after notice to, the counsel of the parties. Its provisions are mandatory. The jury might well have con-eluded that this instruction was an expression of the court\u2019s opinion upon the weight of the testimony and the guilt or innocence of the defendant by his saying, \u201cJust fix the punishment, whatever it was, or what they thought should be fixed.\u201d\nIn Wawak and Vaught v. State, 170 Ark. 329, the court said: \u201cIt is, of course, not only improper, but is error calling for the reversal of the judgment, for the court to communicate with the jury, in the absence of the defendant, any directions in regard to their verdict. Hinson v. State, 133 Ark. 149; Pearson v. State, 119 Ark. 152.\u201d Neither could its harmful effect be relieved against by the testimony of the jurors, after the verdict was rendered, that they had already reached a verdict of guilty before the communication- or instruction was received, since the jury had the right to consider or reconsider the question of guilt until the delivery of the verdict, and the jurors are not permitted to testify about such matters, anyway.\u201d Kindrix v. State, 138 Ark. 594, 212 S. W. 84.\nFor the error designated the judgment must be reversed, and the cause remanded for a new trial. It is so ordered.", "type": "majority", "author": "Kirby, J.," } ], "attorneys": [ "Cobb & Cobb and Witt & Witt, for appellant.", "II. W. Applegate, Attorney General, \u2022 and Darden Moose, Assistant, for appellee." ], "corrections": "", "head_matter": "Wacaster v. State.\nOpinion delivered February 21, 1927.\n1. Criminal law \u2014 argumentative instruction. \u2014 In a prosecution for murder, refusal to give requested instructions which were argumentative and on the weight of the testimony was not error.\n2. Criminal law \u2014 repetition of instructions. \u2014 Refusal to give an instruction which was covered by another instruction given was not error.\n3. Criminal law \u2014 instruction as to presumption of innocence. \u2014 \u25a0 In a prosecution for murder, where the court correctly charged on the law relating to weighing the testimony, the presumption of innocence, and reasonable doubt, a requested instruction that, if any testimony in the case is susceptible of two constructions, one of guilt and one of innocence, the jury must give the construction of innocence, was properly refused where there was no attempt to prove defendant\u2019s guilt by inferences to be drawn from facts and circumstances established by testimony.\n4. Criminal law \u2014 instructing jury after retirement. \u2014 Crawford & Moses\u2019 Dig., \u00a7 3192, providing the manner in which the jury shall acquire information on any point of law or of evidence after it has retired, held mandatory.\n5. Criminal law \u2014 instructing jury after retirement. \u2014 In a prosecution for murder it was error, in view of Crawford & Moses\u2019 Dig., \u00a7 3192, for the court to give an additional instruction to the foreman of the jury in absence of defendant and his attorney, and such error was not cured by testimony of jurors that they had already reached a verdict of guilty before the instruction was given, such testimony being incompetent.\nAppeal from Garland Circuit Court; Earl Witt, Judge;\nreversed.\nSTATEMENT BY THE COURT.\nLee 'Wacaster, appellant, was indicted, tried and convicted in the Garland Circuit Court for the crime of murder in the first degree for killing Tillman Brown, and his punishment fixed at life imprisonment in the penitentiary, and from this judgment prosecutes an appeal.\nIt appears from the testimony that there had been some previous trouble and fighting between the deceased, Tillman Brown., and threats made by him against appellant, whose wife was Brown\u2019s stepsister; that, on the day of the killing\u2019, Brown and his wife had driven np to the front of Wacaster\u2019s house, and had been talking' to Mrs. Wacaster for about twenty minutes when Wacaster came up from the rear in his car, stopped, and then started and drove off around the block, came back, and stopped his car behind Brown\u2019s and asked, as one witness said, \u201cTillman, who told you to come around here ? \u201d to which Brown replied, \u201cI am in the street, ain\u2019t I, Lee?\u201d Lee replied, \u201cIt don\u2019t make a damn bit of difference if you are, get out from here.\u201d Brow said, \u201cIt\u2019s a free street, and I don\u2019t intend to leave until I get ready.\u201d Wacaster then went into the house and called Mr. Floyd, a deputy sheriff, on the \u2019phone, and was heard to say, \u201cThere is a fellow out here in front of my place, and I have ordered him to leave, and he won\u2019t do it. What about it?\u201d Witness then heard him say, \u201cWell, if he don\u2019t leave, I will fix it so he will have to be carried out.\u201d Wacaster came out of the house, and said \u201cTillman, I said for you to leave,\u201d to which Brown replied, \u201cI don\u2019t intend to leave. I didn\u2019t come up here for any trouble, but to talk to Florence\u201d (Wacaster\u2019s wife). Mrs. Brown then said, \u201cLet\u2019s go on,\u201d and Mrs. Wacaster said, \u201cNo. Don\u2019t go; he is just trying to pull one of his old bluffs.\u201d Wacaster told him to leave again, and Brown said, \u201cI am in the street, and there is no son-of-a-bitch can make me move.\u201d\nWacaster then asked Mrs. Brown to get out, and told Tillman to leave again. Told Mrs. Brown to get out, for he would move him, if he didn\u2019t get out, with the car. He moved around inside the fence to where he could shoot without hitting her, and fired, and that\u2019s about all, as Mrs. Brown stated. She said her husband had one hand on the wheel and the other in his lap'; that Brown was in his shirt-sleeves.\nThe deputy sheriff stated that Wacaster called him just before the trouble, Sunday afternoon, saying, \u201cThere was a man in front of his gate who refused to move,\u201d and wanted to know what to do about it. The deputy replied, \u201cWell, bring him on down.\u201d He didn\u2019t think there was any trouble. Wacaster said, \u201cNo, I don\u2019t want to have any trouble with him. The man is right in front of my gate.\u201d I said, \u201cWell, you have a right to move him if he is on your property, but don\u2019t have any trouble.\u201d He replied, \u201cWell, if he don\u2019t move, you will have to come and get him or me, or both of us.\u201d After a little the phone rang again, and Wacaster asked if we wanted him to come on down.\nOther witnesses testified that they arrived on the scene while Brown\u2019s car was still standing, and that there was a bottle lying on the front seat under the steering wheel, and that the front wheels of the car were about four and a-half feet from the fence, with the back wheels a little further out in the street.\nThere was other testimony that Brown had said to a witness to whom he was talking when Wacaster passed, \u2018 \u2018 There went a son-of-a-bitch I am going to get sooner or later.\u201d He said that Wacaster had been mistreating his wife. This witness repeated the threat to Wacaster.\nAnother, Miles Conway, stated that he had heard Brown say, on coming out of Wacaster\u2019s place of business some months before the killing, to Wacaster, \u201cYou son-of-a-bitch, I will kill you sooner or later.\u201d He was getting into his car at the time.\nAnother witness testified that, two or three years before, when he was at work for Wacaster, who had cut his hand, that Brown came and went into the house while . witness was cleaning hogs in the yard, and came out with a gun in his hand, and said, \u201cLee is not here, but that\u2019s all right, I will kill the son-of-a-biteh sooner or later. \u2019 \u2019\nTwo or three other witnesses testified about threats made by Brown against Wacaster. Brown said that if Lee Wacaster mistreated his wife he was going to kill him. Wacaster and his wife had had trouble.\nAnother witness heard Brown talking to Mrs. Wacaster on the \u2019phone, and heard Mrs. Wacaster say to him, \u201cIt is the same old thing over all the time, just fussing and raising hell all the time.\u201d\nDefendant stated that he was not related to Brown. After he married, Tillman Brown\u2019s mother married Mrs. Wacaster\u2019s father; that he had trouble with Brown recently before the fatal encounter; that Brown had knocked him in the head when he came back from Colorado, with a piece of pipe he had thrown at him at the slaughter-house, because of the dispute over a right to use a slaughter-pen; that he had had trouble with him over at his, defendant\u2019s, blacksmith shop, when he had tried to make Brown stop fighting another man, and he jumped on him, swore that he would kill him, and went home after a gun. \u201cAbout ten months before the killing he came to my slaughter-pen, and said, I understand you have been mistreating Florence again.\u2019 I said, \u2018No, I guess not.\u2019 He said, \u2018You God damn son-of-a-bitch, I am going to kill you; you are going to stop it.\u2019 And I said, \u2018It looks like you would attend to your own business.\u2019 And he said, \u2018I will get you, you son-of-a-bitch,\u2019 and he drove off when Mr. Conway came.\u201d He was then standing in the door of the slaughter-pen, with his right hand in his coat pocket. He later saw Brown on his front porch, talking with his wife, and when he drove'up. and saw that it was Brown, he drove on away. This was about a month before the killing. He didn\u2019t stop at that time because he had heard the threats Brown had made against him, and he didn\u2019t want any trouble. He had been told of Brown\u2019s threats by two or three different people; on the day of the killing, about three o\u2019clock, he went by his house to get his saw and some orders. \u2018 \u2018 Stopped when I saw Brown was there, and drove away around a block and a half, and returned in about ten minutes, driving slowly, thinking Brown would be gone before I got back.\u201d Said further: \u201cI stopped my car, taking my gun off the seat and went into the yard and said, \u2018Tillman, who sent for you?\u2019 And he said, \u2018I am here.\u2019 I said, \u2018Well, I don\u2019t want you out here now; you get up and go on away from my place. \u2019 He said, \u2018I don\u2019t go nowhere; no son-of-a-bitch can\u2019t move me.\u2019 I said, \u2018I will call a man and have him come and move you.\u2019 He said: \u2018You or no other son-of-a-bitch can\u2019t move me.\u2019 I went in and called the sheriff\u2019s office. I said: \u2018Is this you, Floyd?\u2019and he said it was. I said: \u2018Floyd, there\u25a0 is a man out here at my place and he won\u2019t go away, I have had trouble with him.\u2019 He said: \u2018Who is it?\u2019 I said, \u2018Tillman Brown.\u2019 He said: \u2018You go out there and tell him to move; you have a perfect right to move him. \u2019 I said, \u2018I don\u2019t want to; I don\u2019t want any trouble.\u2019 He said, \u2018You go out' and tell him to move.\u2019 I went out and said, \u2018Now, Tillman, go on away; I don\u2019t want you here.\u2019 Brown said: \u2018I don\u2019t go nowhere; no son-of-a-bitch can move me.\u2019 Now I said: \u2018Go on, you and your wife move on away from my place; you are not wanted here. \u2019 He said: \u2018You God damn son-of-a-bitch,\u2019 and grabbed with his right hand down in.the seat, and I fired. I do not know from what position I fired. I do not know where I hit him. I did not get out of my car and tell him to move, and then go back and get my gun. I took my gun to protect myself from any \u2018attempt he might make against me, on account of the threats he had made. I saw something between him and his wife, and I thought it was a gun. It was on the seat between him and his wife. I did not change my position, nor did I say, \u2018Move, woman.\u2019 I said for them to move. Mrs. Brown was never in the range of fire. It was never necessary for her to move. I shot him because I thought it was to shoot or be killed myself. I did not at that time intend to kill him. My wife and myself had been having trouble. My wife has had Tillman Brown to protect her. * * * I never at any time raised a difficulty with Tillman Brown. I have tried to stay out of trouble with him. I have avoided him, and have left my own home and have passed my own home when he would be there, and leave him there. \u2019 \u2019\nDenied on cross-examination that he had become vio-, lent in his own home within the last year, \u201cbut my wife and two of her sisters got a gun there, and she said if Brown didn\u2019t kill me she would.\u201d Stated that he had carried the shotgun for several years, ever since he had been knocked in tbe bead at tbe park. Denied tbat be bad ever told any one tbat be was going to kill Brown, and said tbat be never went anywhere with tbe shotgun looking for it; tbat be bad never attended a family reunion where Tillman Brown was, and bad.never bad anything to do with him. After be talked with the deputy sheriff, be went out to tell him, Brown, to go, and \u201cmy intention was, if be didn\u2019t go, to go back and tell tbe sheriff, and when be made tbe break I thought tbat was my only chance. As tbe car was up'next to my fence, I saw something in tbe seat, thought it was a gun, and when Brown said, \u2018You son-of-a-bitcb,\u2019 and grabbed down, I fired.\u201d\nMarion Cook stated be beard tbe gun fire, and ran over, and Wacaster got in bis car and said to him be was being imposed on, or couldn\u2019t be imposed on any longer. \u201cI asked him what be did it for, and be said he was tired of being imposed on by him, and be couldn\u2019t stand it any longer.\u201d\nTbe court instructed*the jury, refusing to give appellant\u2019s requested instructions numbered B and F, which refusal was made grounds of tbe motion for a new trial as well as complaint of error, because tbe court, after the jury bad retired, permitted the jury to take tbe written instructions in tbe jury room, and especially because tbe instructions on reasonable doubt and presumption of innocence had not been written and were not included therein.\nComplaint was made, further, of tbe court having instructed tbe foreman of tbe jury out in tbe hallway, in front of tbe room where they were considering tbe case, in tbe absence of appellant and bis counsel. Tbe bill of exceptions also recites:\n\u201cOn tbe 6th day of November, 1926, the court made tbe following further statement: \u2018I will just make this statement then, tbat it was either at the time when tbe jury bad requested tbe written instructions or I had gone to see as to whether or not they were making any progress toward a verdict; at any rate, I remember Mr. Kyle (tbe foreman of tbe jury) asked me something about the likelihood of a parole in the case, and I told him that was a matter the jurors shouldn\u2019t consider at all in arriving at their verdict; that the likelihood of a parole was outside of their consideration of the ease, and they shouldn\u2019t let that weigh with them at all, and I told him at that time to mention that fact to the jurors, that they shouldn\u2019t take into consideration the likelihood-of pardon in the case at all, because it wasn\u2019t a matter for them to determine; .just fix the punishment, whatever it was, or what they thought should be fixed.\u201d The court further said, \u201cI don\u2019t think the defendant was there at the time, or his attorneys.\u201d\nCobb & Cobb and Witt & Witt, for appellant.\nII. W. Applegate, Attorney General, \u2022 and Darden Moose, Assistant, for appellee." }, "file_name": "0983-01", "first_page_order": 1001, "last_page_order": 1009 }