Pope v. State

Carleton Harris, Chief Justice, dissenting. I disagree with the finding of the majority that this case should be reversed because of the failure to permit appellant to answer the question “Has it been related to you that Shorty Luster had previously killed anyone?” and I have more than one reason for feeling this way.

In the first place, we have said many times that a violent disposition toward others on the part of the victim of a homicide cannot be shown by specific acts of aggression and misconduct. Sanders v. State, 245 Ark. 321 , 432 S.W. 2d 647 . In that case, citing several prior cases, we stated that the law is clearly established that a violent disposition toward others on the part of a victim of homicide cannot be shown by specific acts of aggression and misconduct, and that such evidence is properly shown by proof of the general reputation of the deceased. I do not see the pertinence of Ark. Crim. Code §§ 41-506 and 41-507 (1976). The former section provides that one is not justified in using physical force upon another if “he provokes the use of unlawful physical force by the other person; or he is the initial aggressor; ***.” The latter section provides that:

“A person may not use deadly physical force in self defense if he knows that he can avoid the necessity of using that force with complete safety:

(a) by retreating, except that a person is not required to retreat if he is in his dwelling and was not the original aggressor, or if he is a law enforcement officer or a person assisting at the direction of a law enforcement officer; ***.”

The evidence clearly reflects that appellant had an argument with Townsend, one of the patrons of the cafe, then left the cafe and returned with a gun. Five witnesses testified that Luster, the proprietor, apparently as a matter of preserving the peace, asked Pope, when he was having the altercation with Townsend, to leave the cafe; for that matter, appellant himself admitted that Luster had asked him to leave Townsend alone. Now, all appellant had to do was stay away from the establishment; instead, he returned ready for combat. In my view (and apparently that of the jury), Pope was undoubtedly the aggressor.

Pope was the only witness who testified that he had been told that Luster had killed somebody. This brings me to my second reason for considering the testimony inadmissible. 1

The alleged person, or persons, who purportedly told Pope that Luster “had killed three people while living in the State of Mississippi and that he had whipped several other people while operating a tavern there in Marked Tree,” were never identified, and I contend that one raising such a defense, should be required to do more than make a general hearsay statement without being specific as to the source of his information, without being specific as to the identity of the three persons who were killed in Mississippi, and without being specific as to the “several” people who had been “whipped” in Marked Tree. I daresay that hereafter there will be many defendants charged with murder who, on trial, will testify that they heard the deceased was violent!

However, if my reasoning is faulty in all that has been said, there is still a potent reason why this case should not be reversed, for the proffer of evidence was, in my opinion, totally defective. I refer to the fact that the proffer does not include when Pope received his information, i.e., before or after the killing. The question was simply, “Has it been related to you that Shorty Luster had previously killed anyone?” Of course, this purported information could have been related to appellant after the killing but before the trial, and certainly under no circumstances would the evidence have been admissible if such knowledge was acquired after the shooting.

I would affirm the judgment of the Poinsett Circuit Court.

Let it be remembered that the proffered testimony did not consist of threats purportedly made in the past toward appellant; actually, Pope stated that he and Luster- had always been good friends.