Stevens v. State, 117 Ark. 64

Stevens v. State

117 Ark. 64 | Ark. | 1915

"Wood, J.,

(after stating the facts). (1) The court did not err in excluding the proffered testimony of witness Harris in regard to the impeachment of witness Buster Williams. Buster Williams had stated, in the presence of Roleson and Harris before the trial, that he saw appellant at the house of Ellen Vincent four or five feet from the window. At the trial Buster Williams testified that when he saw appellant his face was right at -the win- ■ dow. The court permitted the appellant to impeach the witness Iby showing that he had made the statement to Roleson before the trial, which contradicted his testimony on the trial. But the appellant sought by the testimony of Harris to go further and show the reasons or probable reasons why the witness made these contradictory .statements. -Such testimony was collateral to the issue, the only issue being as to whether the witness was impeached by his contradictory statements.

(2) The exclamation of Hattie Stevens,£ £ Oh, Lem, ’ ’ made just before the gun fired, and the execlamation just after the gun fired, “Lord have mercy, Lem’s done shot me,” were spontaneous emanations from the transaction itself. They were so closely connected with it as to be a part of it. They were so contemporaneous with the main fact of the shooting or so nearly related to it as to illustrate its character, and the .state of the mind of the person injured before she had time to think and concoct an accusation against the one causing it. They were verbal facts of the transaction, so to speak, and therefore should have been admitted as a part of it. Plumley v. State, 116 Ark. 17, 171 S. W. 925, and cases cited.

The exclamations here were very similar, and made under similar circumstances, to those made by the party injured in the ciase of Plumley v. State, supra, the only difference being that in the Plumley case it was daylight, •and it was shown that the injured party knew that Plumley shot him. But this difference does not change the character of the declarations here or make them any less a piart of the res gestae.

The 'contention that the uncontroverted evidence shows that these exclamations were only the expression of an opinion on the part of Hattie Stevens, land that ¡they should have been excluded for that reason is not sound.

(3) The circumstances were sufficient to warrant the court in submitting to the jury the issue as to whether or not the exclamations were the mere expression of opinion or the statement of a fact, and the court correctly instructed the jury on this issue in instructions given at the instance of the appellant numbered 1 and 4. These instructions covered all that was necessary to say upon that subject, and all that the appellant requested in prayer No. 3. There was no error, therefore, in refusing to grant that prayer. The ruling of the court in refusing to grant prayer No. 3 was correct for .the further reason that such prayer was argumentative in form, and because it submitted to the jury to say whether or not the exclamation was used. In this particular the prayer was abstract, because the uncontroverted testimony showed •that Hattie Stevens did make the exclamation.

No question was raised at the trial as to the admissibility of the testimony of Gib Cooper, complained of here. No error, therefore, can be predicated upon the admission of that testimony. Harding v. State, 94 Ark. 65-68.

The testimony was amply sufficient to sustain the verdict.

The judgment is correct, and it is therefore affirmed.