Trulock v. State , 70 Ark. 558 ( 1902 )

Hughes, J.,

(after stating the facts). While the testimony of the old woman, Eliza Lattie, as to the identity of the person who did the shooting that killed Delia Walker was not of the most satisfactory character, it was competent testimony, and there was no error in refusing to exclude it from the jury. It was for the jury to determine its credibility and give it such weight as they thought it entitled to. She testified she saw the man that did the shooting as he passed the window, and took him to be the appellant; that she knew -him by his walk. She admitted she could not see very well, and said, in effect, that one reason she thought it was the defendant was that Delia said it was Tom, and she believed it was. But she swears positively that it was the defendant, but said again that she could not see him well enough to distinguish who he was.

The testimony that Delia, the deceased, said, “Tom, if you want to come in, why don’t you come in like a man ? Why do you treat me that way?” was competent, and there was no error in allowing it. It was part of the res geslae.

The testimony of Stringfellow about the shell being picked up at the house where the shooting was done was incompetent. It was hearsay testimony. He did not testify to it as a fact, but as having been told him by another. He did not know even by whom it was said to have been picked up. He did not profess even to know it. This was material, as it was brought out to support the theory that the defendant had a gun that carried that kind of a shell, a No. 12 Winchester shell. There was no evidence that he had a gun that carried that sort of a shell. There was evidence that his kinsman, Smith, had a No. 12 repeating Winchester shotgun, and that defendant stayed at Smith’s house that night, but there was no proof that defendant had- it at any time. What effect this testimony may have had on the jury it is impossible for us to tell. The state insisted on it as competent, and the prosecuting attorney must have believed that it was material, and it was allowed improperly over the objection of the defendant.

The testimony is meager and weak on the whole ease. For this error the judgment must be reversed, and the canse remanded for a new trial.

Instruction numbered 3 given to the jury over the defendant’s objection, and to which he saved exceptions, is defective. It might be construed to assume the killing was proved to have been done by the defendant. Two of the judges think it is fatally defective in substance, and two think it only defective in form, and that, being defective in form only, a general objection to it was not sufficient, but that there should have been a special exception, calling attention of the court to the defect, that he might have thereupon corrected it; that it was unfair to the court to lay in ambush, as it were, and say nothing about an error which the court would probably have corrected, if his attention had been called to it, and wait to spring the objection to it for the first time in this court. As to this, see the following cases in this court: St. Louis, I. M. & S. Ry. Co. v. Pritchett, 66 Ark., 46; Williams v. State, 66 Ark. 264.

For the error indicated in allowing the testimony of Stringfellow as to the shell, the judgment is reversed, and the cause is remanded for a new trial.

Wood, J., did not participate. Bunn, O. J., dissents.