{ "id": 1694015, "name": "Wootton v. State", "name_abbreviation": "Wootton v. State", "decision_date": "1960-05-30", "docket_number": "4975", "first_page": "300", "last_page": "307", "citations": [ { "type": "official", "cite": "232 Ark. 300" }, { "type": "parallel", "cite": "337 S.W.2d 651" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "26 S. W. 712", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "59 Ark. 132", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1327665 ], "opinion_index": 0, "case_paths": [ "/ark/59/0132-01" ] }, { "cite": "206 Ark. 549", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1484990 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/206/0549-01" ] }, { "cite": "226 Ark. 566", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8722719 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/226/0566-01" ] }, { "cite": "39 Ark. 337", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1898641 ], "opinion_index": 0, "case_paths": [ "/ark/39/0337-01" ] }, { "cite": "200 Ark. 592", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1453476 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/200/0592-01" ] }, { "cite": "131 S. W. 46", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "96 Ark. 52", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1541990 ], "opinion_index": 0, "case_paths": [ "/ark/96/0052-01" ] }, { "cite": "204 Ark. 233", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1444145 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/204/0233-01" ] }, { "cite": "198 Ark. 1037", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1459744 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/198/1037-01" ] } ], "analysis": { "cardinality": 668, "char_count": 13906, "ocr_confidence": 0.49, "pagerank": { "raw": 1.7198355149357062e-07, "percentile": 0.7037522264811578 }, "sha256": "22648b7c2c2c61a885a682c9014687eb14a7be4b355f2dccf8ecbe32e8410007", "simhash": "1:fc65eea5343e1afe", "word_count": 2520 }, "last_updated": "2023-07-14T16:22:23.295937+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Johnson, J., dissents." ], "parties": [ "Wootton v. State." ], "opinions": [ { "text": "Paul Ward, Associate Justice.\nRichard Wootton, appellant herein, was convicted of murder in the second degree and sentenced to 15 years in the State Penitentiary allegedly for killing one Ulice Miller in the late evening of October 17, 1959.\nAbout noon on the above mentioned date appellant and the deceased, after completing a business transaction, planned to have a fish fry that evening at a designated site. It was also mentioned that others might be invited. Pursuant to this plan the deceased and one Dow-ell Clark went by appellant\u2019s home around 3 o\u2019clock that afternoon and loaded appellant\u2019s boat on Clark\u2019s pickup truck and then returned to the home of the deceased. Appellant purchased the necessary groceries and drove by deceased\u2019s home about 4 o\u2019clock when the three white men decided to send three negro men ahead to the \u201cwater hole\u201d in Clark\u2019s truck to make preparation for the fish fry. The three white men had some liquor, or one of them had some liquor, when they left the home of the deceased for the fish fry, and on the way they bought and drank some more liquor, arriving at the designated site around 5 o\u2019clock. Appellant took along a .351 caliber rifle, Clark took a .22 caliber rifle, and the deceased took a 12-gauge shotgun. Later, around 8:30 o\u2019clock while supper was being served appellant and Clark engaged in a controversy, and presently in a fight, over a cup of coffee. It seems that one of the negro men filled appellant\u2019s cup too full of coffee after being told to only partially fill it. After this difficulty was apparently settled temporarily appellant and Clark engaged in one or two more fights in which the deceased intervened in behalf of Clark for the alleged reason that Clark was physically handicapped. The outcome of these difficulties was that appellant shot the deceased twice with his .351 rifle.\nOn appeal appellant relies on four designated grounds for a reversal of the judgment of the trial court. One challenges the sufficiency of the evidence, and relates to an Instruction refused by the trial court. The other three grounds challenge Instructions given by the court.\nOne. We cannot agree with appellant\u2019s contentions that the evidence is insufficient to support the conviction of murder in the second degree. Appellant\u2019s main point, in this connection, is that there is no evidence from which the jury could find the necessary element of malice. It is pointed out that the three white men involved had been the very best of friends up until the time this unfortunate occurrence took place. We agree that malice is a necessary element to constitute murder in the second degree. In Ballentine v. State, 198 Ark. 1037, 132 S. W. 2d 384 (at page 1039 of the Arkansas Reports) this Court said: \u201cMalice, however, is a necessary element of murder, either in the first or second degree, and it must be either express or implied.\u201d\nThe testimony relied on by appellant in his brief is substantially as hereafter set out. One of the negro men, known as \u201cSundown\u201d, testified: We were all sitting around eating and I started to pour Mr. Wootton a cup of coffee; lie said lie just wanted a half a cup and I had it a little fuller than he wanted \u2014 he squeezed the paper cup a little too tight and some of the coffee ran out on his hand; I started pouring him some coffee in a glass cup and Mr. Clark spoke up and said \u201cHe don\u2019t want no whole cup\u201d; appellant looked around to Mr. Clark and asked what he had to do with it; they talked around a little bit but I don\u2019t know just what they said; I looked around when appellant reached up and snatched Mr. Clark off the bumper of his truck and Mr. Clark just lay there with his legs crossed; the deceased said \u201cYou all quit that\u201d; then the deceased pulled appellant off of Mr. Clark, and they started back to eating. Later while I was standing with my back to them I looked around and saw that appellant had Mr. Clark down again; the deceased walked up and said \u201cYou boys stop this, we want to have a good time\u201d; the deceased caught Mr. Wootton in the back of his shirt collar and said \u201cGet up off of that boy, Richard\u201d (meaning the appellant); we started eating again when appellant reached for Mr. Clark again and the deceased ran up to stop him and the next thing I knew appellant and the deceased were \u201ctussling\u201d around; the deceased walked toward the fire and appellant walked between the trucks \u2014 he took a gun out of a scabbard and said \u201cI am going to kill both of you s \u2014 of\u2014h\u2014.\u201d I saw Mr. Miller as he was falling and he didn\u2019t have anything in his hands. Howell Clark\u2019s testimony was substantially as follows: We were eating and \u201cSundown\u201d was pouring coffee; the cup he poured for appellant was too full and he said \u201cI told you to pour me a half a cup\u201d; \u201cSundown\u201d got a glass cup and poured appellant coffee in it \u2014 I told him to pour a half a cup and appellant jerked me down; the deceased talked to appellant and got him to get up; I got up and appellant ran into me and knocked me down and the deceased helped me up; the deceased got between us and he and appellant scuffled; the deceased got up and started walking toward the fire, and appellant got up and went to his truck and pulled the rifle out and said \u201cI am going to kill both of you s\u2014 of-b------.\u201d One of the negro men named Easter testified in substance: Appellant told \u201cSundown\u201d to get some coffee \u2014 he didn\u2019t want a full cup; from then on I don\u2019t know what happened until I saw appellant on Mr. Clark; and I didn\u2019t pay much attention; in a little while I saw appellant had Mr. Clark down again and about that time the deceased got on appellant; the next thing that came to my attention was appellant taking a gun out of a scabbard and when I heard the shooting I was gone. The other negro man, Anthony Herron, testified: It seemed like Clark hit appellant on the head with something and then appellant grabbed him around the leg and they went down \u2014 the deceased wasn\u2019t in it then but he got up and pulled appellant off of Clark and said \u201cDon\u2019t fight that crippled man\u201d; the deceased got appellant loose from Clark, but they all continued fighting again; while they were out there I heard a gun fire and I left \u2022 \u2014 \u25a0 later I heard two shots. Appellant testified substantially as follows: About 8:30 o\u2019clock we had just finished eating and a negro poured a cup of coffee \u2014 I reached and got my cup; I reached and got the one mug of coffee and Clark said: \u201cI want that cup\u201d and I said your wife ought to have fixed you a cup if you wanted one and the next thing I knew he hit me with a bottle, I just reached and knocked his feet out from under him and we piled up there \u2014 we were all three fighting; we fought over an area as big\u2019 as 10 or 15 feet and when I knew anything Clark had got to his pickup and fired a shot; I broke loose from Miller and made for my pickup and Miller ran around to where Clark was \u2014 and I came to my truck and opened the door and drug my rifle out and said \u201cS \u2014 o\u2014b------ put your guns down and come out\u201d and they said \u201cYou put yours down and come out.\u201d I said \u201cNo, it\u2019s two against one\u201d. They didn\u2019t say a word and when I knowed anything Miller came around within 50 feet and that is when I shot \u2014 it was dark; I fired two shots although I had more cartridges in my gun; I quit shooting because I saw Miller fall. I had known the deceased six or seven years and we were friends; when I first saw the man that I shot he was between the trees and he squared himself with a shotgun; I couldn\u2019t tell in the dim light who it was; I fired the shot at the man I shot to save my life; I saw the gnn and when he fell I quit shooting.\nFrom the above it will be seen that there are some conflicts in the testimony of the eyewitnesses who were present. In the case of Higgins v. State, 204 Ark. 233, 161 S. W. 2d 400, this Court said: \u201cIt is a well settled rule that the evidence admitted at the trial will, on appeal, be viewed in the light most favorable to the appellee, and if there is any substantial evidence to support the verdict of the jury, it will be sustained\u201d, citing-cases. Viewed in that light we are unable to say there is no substantial evidence to support the verdict of the court in this instance.\nWhile malice is a necessary element of the crime for which appellant was convicted it is well settled by the decisions of this Court that malice may be implied from the facts and circumstances in the case, and it is our opinion that the facts and circumstances in this case justify an implication of malice on the part of appellant. In the case of Clardy v. State, 96 Ark. 52, 131 S. W. 46, we find this statement: \u201cThe law will imply malice where there is a homicide with a deadly weapon and no circumstances of mitigation, justification or excuse appear ; and proof of a homicide under such circumstances will warrant a conviction of murder in the second degree. The passion that will reduce a homicide from murder to manslaughter may consist of anger or sudden resentment, or of fear or terror; but the passion springing from any of these causes will not alone reduce the grade of the homicide. There must also be a provocation which induced the passion, and which the law deems adequate to make the passion irresistible.\u201d We find nothing in the testimony to force the conclusion that appellant was faced with such provocation that it induced in him a sudden and irresistible passion such as would be necessary to reduce the crime of second degree murder to that of voluntary manslaughter.\nIn view of what we have heretofore said we cannot, of course, agree with appellant\u2019s contention that the court committed reversible error in refusing to give the Requested Instruction No. 2. This Instruction reads: \u201cYou are instructed to find the defendant not guilty of murder in the second degree.\u201d\nTwo. It is here insisted that the trial court erred in giving its Instruction No. 1. This is a very lengthy general Instruction covering the different degrees of homicide and it would serve no useful purpose to set it out in full. Appellant\u2019s principal contention is that the instruction was argumentative and placed special emphasis on murder in the second degree. We are unable to agree with this contention. In this Instruction the court first told the jury that \u201cUnder the indictment it is competent for you, if you think the evidence justifies it, to convict the defendant of murder in the first degree, murder in the second degree, or of manslaughter, or to acquit him outright.\u201d Appellant cannot complain that he was convicted of a lower degree of crime when he could have been, under the Instruction, convicted of a higher degree. See Bone v. State, 200 Ark. 592, 140 S. W. 2d 140. We have read the Instruction carefully and cannot agree with appellant that the Instruction places special emphasis on the crime of murder in the second degree.\nIn addition to the above it is pointed out that appellant made no proper objection and exception to the above mentioned Instruction. Before any of the court\u2019s Instructions, consisting of sixteen in number, were given but after they had been discussed with the court appellant offered \u201ca general objection to all of the Instructions to be given by the court.\u201d This being a general objection en masse it does not properly present a question for the decision of this Court if any one of the Instructions is good. Some of the sixteen are not challenged. See Neal et al v. Peevey, 39 Ark. 337 and Jones v. State, 226 Ark. 566, 291 S. W. 2d 501. In addition to the form of the objection referred to above we fail to find that appellant saved his exceptions to the giving of the Instruction. This was necessary. See Yarbrough v. State, 206 Ark. 549, 176 S. W. 2d 702, and the cases cited therein.\nThree. It is insisted by appellant that the conrt erred in giving its Instruction No. 7 regarding the law of self-defense, to parts of which he had a proper objection and exception. In this Instruction, among other things, the court said: \u201cIf there was no danger, and his belief in the existence thereof be imputable to negligence, he is not excused, however honest the belief may be.\u201d We find, however, that this same language was approved in the case of Smith v. State, 59 Ark. 132, 26 S. W. 712.\nIt was insisted by appellant that Instruction No. 7 was erroneous in that it permitted the jury to find that appellant provoked or invited the deceased to make the attack on him. Again we are unable to agree with appellant\u2019s contentions. As pointed out above, and taking the evidence in the light most favorable to the State, there was testimony, we think, from which the jury might have reached that conclusion.\nFour. Finally, appellant insists that the court erred in giving its Instruction No. 11 regarding reasonable doubt. We have read this Instruction carefully and in our opinion it is a correct statement of the law. It is also pointed out that the objection to this Instruction was the same as that made to Instruction No. 1 heretofore discussed, and that likewise no exception was saved to the giving of the Instruction. Therefore, as heretofore pointed out, no question is properly presented for this Court\u2019s consideration.\nIn addition to the above appellant brought forward a number of alleged errors in Ms motion for a new trial, many of which relate to instructions given and refused by the court. In most instances we find no proper objections were made and no exceptions saved, however, we have carefully examined each of these assignments and find in them no reversible error.\nIt is our conclusion, therefore, that the judgment of the trial court must be, and it is hereby, affirmed.\nAffirmed.\nJohnson, J., dissents.", "type": "majority", "author": "Paul Ward, Associate Justice." } ], "attorneys": [ "W. S. Atkins, R. L. Searcy, Jr., for appellant.", "Bruce Bennett, Atty. General by Ancil M. Reed, Asst. Atty. General, for appellee." ], "corrections": "", "head_matter": "Wootton v. State.\n4975\n337 S. W. 2d 651\nOpinion delivered May 30, 1960.\n[Rehearing denied September 12, 1960]\nW. S. Atkins, R. L. Searcy, Jr., for appellant.\nBruce Bennett, Atty. General by Ancil M. Reed, Asst. Atty. General, for appellee." }, "file_name": "0300-01", "first_page_order": 322, "last_page_order": 329 }