125 Ark. 209 | Ark. | 1916
Ollie M. Paul was indicted for murder in the first .degree, charged to have been committed by shooting Joe Bracken. He was tried before a jury and found guilty of voluntary manslaughter, his punishment being fixed at imprisonment in the state penitentiary for seven years.
From the judgment of conviction the defendant has duly prosecuted an appeal to this court.
The facts as detailed by the witnesses for the State are substantially as follows:
Joe Bracken lived in Mississippi County, Arkansas, and owned a farm near the farm of the defendant’s father. Joe Bracken was shot on the 10th day of October, 1915, by Ollie M. Paul on the farm of his father in the Chickasawba District of Mississippi County, Arkansas, and died in about twenty-four days thereafter as the result of his wounds.
On the morning of the killing, one of Bracken’s brothers gave him a quart of whiskey but according to the testimony of another brother.he never drank any of it. Two of Bracken’s brothers were nfear by when the shooting occurred but did not see it. They seated they heard two shots from a large gun. and then they heard a shot from a smaller one. Then they ran to the scene and found their brother and the defendant clinched and each one claimed that the other had shot him. One of the brothers took charge of the deceased and the other of the defendant. The deceased had a thirty-two caliber pistol. The defendant had a thirty-eight caliber pistol. The defendant first claimed that the deceased had shot him but an examination of his body showed that he was mistaken. The pistol of the defendant was empty, all of the cartridges in it having been fired. It was also shown in evidence that the deceased on the night that he died, stated that the defendant had shot at him first and had shot him when he had both hands up.
Another witness testified that he heard the shooting and that the first and second shots were louder. He said he knew the kind of pistol Joe Bracken had and it was thirty-two-twenty and the defendant had a thirty-eight special.
Another witness testified that a short time before the shooting, he met the defendant and he had a pistol in his hand.
It was in this Connection that he told his cousin that the defendant shot him first and had shot while his hands were up. This testimony warranted the court in finding that the declarations were ’made under a sense of impending death so as to render them admissible as a dying declaration.
The record shows that the case was submitted to the jury upon proper instructions, covering every phase of the case, and that the defendant had a fair trial. We do not find any prejudicial errors in the record, and the judgment will be affirmed'.