#### Cooley v. State.

4495

211 S. W. 2d 114

Opinion delivered May 17, 1948.

Rehearing denied May 31, 1948.

*504 Talley S Owen, for appellant.

Guy E. Williams, Attorney G-éneral and Oscar E. Ellis, Assistant Attorney General, for appellee.

Ed. F. McFaddin, Justice.

Appellant, Robert Cooley, was tried on an information charging Mm with the crime of murder in tbe second degree, for the homicide of John L. Williams, alias William K. Tatum. From a conviction of voluntary manslaughter and a sentence of two years in the penitentiary, there is this appeal. The motion for new trial contains 16 assignments, which we group and discuss in topic headings.

I. The Sufficiency of the Evidence. This embraces assignments numbered 1, 2, 3, 5, 10 and 11 in the motion *505for new trial. It was admitted that appellant killed the deceased: self-defense was the plea. The evidence viewed most strongly for the State (as we do on appeals in criminal cases like this1) discloses that appellant shot and killed the deceased near a tavern or road house in Pulaski county. The deceased first had a difficulty with a witness named Emmet Williams. When appellant’s wife intervened, the deceased turned on her; and then appellant entered the affray. He hit the deceased, and then — after retreating into the darkness — shot the deceased while he was not then approaching or pursuing the appellant. There was sufficient evidence to take the case to the jury, and to support the verdict rendered.

II. Amending the Information. This embraces assignments numbered 6, 7, 8, 9 and 12 in the motion for new trial. The information as originally filed gave the name of the deceased as John L. Williams. Preliminary to presenting the case to the jury, the court — after hearing witnesses — allowed the State to amend the information to show that the deceased also went under the name of William K. Tatum. There was no error committed by the court in this regard. The identity of the deceased was known to the appellant; and the adding of the various aliases could not possibly have affected his plea of self-defense. See § 24 of Init. Act 3 of 1936, as found on p. 1384 of the Acts of 1937, which is now § 3853, Pope’s Digest; Bennett v. State, 201 Ark. 237, 144 S. W. 2d 476, 131 A. L. R. 908; Tate v. State, 204 Ark. 470, 163 S. W. 2d 150; and Underwood v. State, 205 Ark. 864, 171 S. W. 2d 304.

III. Use of Written Statements of Witnesses. This embraces assignments numbered 13 and 16 in the motion for new trial. In the investigation of the homicide the prosecuting attorney had taken written statements from some of the witnesses. When they proved forgetful, or reluctant to testify, the court allowed the prosecuting attorney to refresh their memories from such statements. There was no error committed in this respect; see Combs *506v. State, 163 Ark. 550, 260 S. W. 736; and Crafford v. State, 169 Ark. 225, 273 S. W. 13.

IY. Rebuttal Testimony. This embraces assignments numbered 14 and 15. When tbe appellant was testifying he said be did not sboot at Louis Gray, and also that be did not “sboot up” Mose Edwards’ tavern just a few days before tbe homicide here involved. On rebuttal, tbe State was allowed to prove:

(a) by Louis Gray, that tbe appellant did sboot at him; and

(b) by Mose Edwards, that tbe appellant shot a pistol six times at Mose Edwards’ place of business just a few days before tbe homicide.

Tbe appellant claims that this rebuttal was improper and prejudicial, and cites Carlley v. State, 191 Ark. 363, 86 S. W. 2d 36. But tbe cited case affords appellant no • support. In it, certain testimony about tbe defendant’s conduct was introduced in tbe State’s case in chief; and we held that it was prejudicial because it cast an additional burden ón tbe defendant prior to bis defense testimony. Here, tbe defendant took tbe witness stand, and made some sort of denial about having or using a pistol. Certainly, tbe trial court did not abuse its discretion in admitting tbe challenged testimony by way of rebuttal. Bobo v. State, 179 Ark. 207, 14 S. W. 2d 1115.

Y. Alleged Refusal to Give an Instruction. ‘ Tbe court instructed tbe jury as to second degree murder, voluntary manslaughter, reasonable doubt, self-defense, circumstantial evidence, burden 'of proof, and other relevant issues, as is usual in a criminal case of this kind. There is no assignment of error concerning tbe giving or refusing of any instruction except appellant’s assignment No. 4, which reads : “Tbe court erred in failing and refusing to instruct tbe jury as to tbe law regarding involuntary manslaughter, as requested by tbe defendant, to which action of tbe court tbe defendant at tbe time objected and saved bis exceptions.”

Our search of tbe transcript fails to disclose that tbe appellant ever presented any requested instruction to tbe trial court on involuntary manslaughter. The sitúa*507tion in the case at bar is similar to that in Pate v. State, 206 Ark. 693, 177 S. W. 2d 933. What was said in that ease applies here — i. e., if appellant desired an instruction, he should have submitted one to the court “setting forth a proper statement of the law in that particular, and, not having done this, he cannot complain of the court’s failure to give such instruction.”

The judgment of the circuit court is in all things affirmed.

1

See Coffer v. State, 211 Ark. 1010, 204 S. W. 2d 376; and, also, eases collected in West’s Arkansas Digest, “Criminal Law,” § 1144 (131.