{ "id": 1652907, "name": "Bazzell v. State", "name_abbreviation": "Bazzell v. State", "decision_date": "1953-10-19", "docket_number": "4741", "first_page": "473", "last_page": "476", "citations": [ { "type": "official", "cite": "222 Ark. 473" }, { "type": "parallel", "cite": "261 S.W.2d 541" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "284 S. W. 734", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "171 Ark. 297", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1369536 ], "opinion_index": 0, "case_paths": [ "/ark/171/0297-01" ] }, { "cite": "139 S. W. 1128", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "100 Ark. 132", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1312249 ], "opinion_index": 0, "case_paths": [ "/ark/100/0132-01" ] }, { "cite": "23 S. W. 7", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "58 Ark. 57", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1329150 ], "opinion_index": 0, "case_paths": [ "/ark/58/0057-01" ] } ], "analysis": { "cardinality": 440, "char_count": 5658, "ocr_confidence": 0.529, "pagerank": { "raw": 7.871964132982943e-08, "percentile": 0.4596013126634024 }, "sha256": "1225fda8c4c72408b005384429ec8c0857158857c06004cb77737b3f1925de89", "simhash": "1:e8e9ec623909403a", "word_count": 982 }, "last_updated": "2023-07-14T18:48:42.003901+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Bazzell v. State." ], "opinions": [ { "text": "George Rose Smith, J.\nUpon a charge of murder in the first degree the appellant, C. E. Bazzell, was found guilty of voluntary manslaughter and was sentenced to serve three years in the penitentiary.\nThe State\u2019s proof was to this effect: On December 31,1952, Bazzell and the deceased, Bill Burris, spent most of the day at a domino table in a poolroom in the city of McG-ehee. A number of arguments took place between the two. At one time Burris objected heatedly to a remark made by Bazzell while the latter was merely watching the game, and, according to Bazzell, Burris then said: \u201cYou put your mouth in this game again and I am going to stick my fist in it.\u201d It is clearly shown that the two men were at outs when Bazzell left the poolroom in the late afternoon.\nAt about seven o\u2019clock in the evening Bazzell returned to the pool hall, armed with a pistol. The State\u2019s witnesses say that he was in a belligerent mood and was looking for the man \u201cthat\u2019s going to shut my mouth up.\u201d Soon after Bazzell\u2019s return Burris came forward from the back of the room and attacked Bazzell with his fists. Bazzell, after receiving three or four blows, pressed his pistol to his adversary\u2019s side and killed him. The jury could have inferred from this testimony that Bazzell was guilty of murder; so we need not discuss the contention that the verdict is contrary to the evidence.\nIt is argued that the information should have been quashed for the reason that it was not sworn to by the prosecuting attorney. A complete answer is that neither the constitution nor the statutes require that an information be under oath. Amendment No. 21; Ark. Stats. 1947, Title 43, Ch. 8.\nA second contention is that the trial judge improperly commented upon the weight of the evidence. During the presentation of the State\u2019s case Felix Woods was asked on cross-examination whether the accused had intended to go fox hunting on the night in question. The prosecution objected to the question as calling for hearsay testimony, and in overruling the objection the court remarked: \u201cI don\u2019t think it has any bearing on the case. This fox hunt hasn\u2019t got anything to do with this killing as I have found yet.\u201d Later in the trial the defense developed the theory that Bazzell was carrying the pistol in readiness for the hunt rather than out of enmity toward Burris, and on this premise it is now argued that the court\u2019s remark was prejudicial.\nThere are several defects in this argument. To begin with, the relevancy of the fox hunt was. not apparent when the court made the observation complained of. On the contrary, the defense pretty well invited the court\u2019s remark by an earlier indication that the defense counsel thought the hunt to be immaterial. The matter had been mentioned only twice earlier in the trial, and on the second occasion the court inquired what the hunt had to do with the case. Defense counsel answered, \u201cYes, sir, I am stopping,\u201d after which the subject was dropped. Second, there was no objection to the court\u2019s remark at the time it was made. It was not until after the testimony of two additional witnesses that counsel made any protest. Finally, the observation obviously did not influence the jury. The fact that Bazzell was armed pertained only to the question of premeditation, and since the jury exonerated Bazzell of the charge of murder the issue of premeditation could not have been a vital factor in its verdict.\nAnother complaint is that the court refused to give a requested instruction on the presumption of innocence. The court gave a correct instruction of its own which adequately covered the subject, and there was no need to repeat the charge in slightly different language.\nThere is assigned as error the court\u2019s action in modifying a requested instruction on self-defense by the addition of the words we have italicized: \u2018 \u2018 One who is suddenly viciously assaulted by another is not required to retreat, but may stand his ground and repel force with force, and if necessary to protect himself, may slay his assailant unless the assailant himself provoked the assault.\u201d Quite evidently the court\u2019s modifying clause would have been clearer had the word accused been used instead of the word assailant, but there was no specific objection to this ambiguity.\nThe appellant, relying upon Johnson v. State, 58 Ark. 57, 23 S. W. 7, insists that the modification precluded the jury from considering the plea of self-defense if it were found that Bazzell, after having provoked the attack, changed his mind and in good faith sought to avoid the encounter. The trouble is that there is no evidence whatever to support such a conclusion by the jury; as the appellant says in his brief: \u201cThere is nothing in the record even to suggest that the accused provoked the assault.\u201d Thus at most the added clause was abstract and could not have misled the jury. Taken as a whole, the instruction was actually more favorable to the accused than it need have been, for it failed to tell the jury that the assault must have been such as to put the accused in fear of death or great bodily harm. Striplin v. State, 100 Ark. 132, 139 S. W. 1128; Garrett v. State, 171 Ark. 297, 284 S. W. 734.\nMore than fifty other assignments of error are contained in the motion for new trial, but after examining them all we conclude that the trial was wholly free from prejudicial error.\nAffirmed.", "type": "majority", "author": "George Rose Smith, J." } ], "attorneys": [ "Jim Merritt, James M. Smith, Robert M. Smith and James Neill Smith, for appellant.", "Tom Gentry, Attorney General, and Thorp Thomas, Assistant Attorney General, for appellee." ], "corrections": "", "head_matter": "Bazzell v. State.\n4741\n261 S. W. 2d 541\nOpinion delivered October 19, 1953.\nRehearing denied November 16,1953.\nJim Merritt, James M. Smith, Robert M. Smith and James Neill Smith, for appellant.\nTom Gentry, Attorney General, and Thorp Thomas, Assistant Attorney General, for appellee." }, "file_name": "0473-01", "first_page_order": 497, "last_page_order": 500 }