Opinion

Brockwell v. State

  • 260 Ark. 807
  • 545 S.W.2d 60
  • 1976 Ark. LEXIS 1889
Court
Supreme Court of Arkansas
Filed
Dec 20, 1976
Status
Published
Author
Harris
On the bench
Fogleman, Byrd, Harris, Jones
Cited by
17 cases
Authority
More cited than 10.6%

holding every fact that would be competent evidence in a case of self-defense by the person defended is competent where the killing by the accused is alleged to be in defense of another.

How later courts described this case

  • holding every fact that would be competent evidence in a case of self-defense by the person defended is competent where the killing by the accused is alleged to be in defense of another.
  • holding that the mere statement of a point is not a sufficient argument for reversal
  • mere statement of point for appeal is insufficient argument for reversal; point waived if not argued

Written by the judges who cited it.

The opinion

Carleton Harris, Chief Justice, dissenting. I cannot agree that the case should be reversed for the reason given by the majority.

In the first place, I find nothing in the record wherein Brockwell states that the reason he could not see whether Griffin had a gun was because the latter’s shirt was hanging out. In fact, the record reveals that however the shirt was being worn (hanging or “tucked in”), this had no effect on what Brockwell could, or could not, see. From the record (cross-examination of Brockwell):

“Q. When he was coming to the house you said that you couldn’t see his hands?

A I did not.

Q Why couldn’t you see his hands?

A I couldn’t say. I don’t know whether he had them behind him like this is the only reason that I could figure that I couldn’t see his hands.

Q Well, you mentioned something about he had a long shirt on.

A Yes sir, he had a long shirt on, but his hands was behind him.”

Now, if Brockwell could see that Griffin’s hands were behind him, he certainly could have seen any movement of the hands wherein Griffin was endeavoring to get a gun out from under his shirt. Brockwell never testified that Griffin made any movement with his hands before the shooting; to the contrary, he emphatically stated that he saw no gesture or move by Griffin until he [Brockwell] fired, at which time the victim clutched himself with his right hand. Of course, if Brockwell was contending that Griffin had a gun behind his back, I cannot see the relevance of whether his shirt was in or out.

It is also my opinion that a proper objection was not made to the offer to introduce the photograph, i.e., counsel did not state that there was no proper foundation, i.e., no evidence that the shirt tail was found “tucked in” after the shooting; rather, counsel simply stated, “I don’t want the jury to be able to determine anything from something that happened after the shooting, I am making an objection.” The court never ruled on the objection, and of course, the burden is on the party making the objection to obtain a ruling. Downs v. State, 231 Ark. 466 , 330 S.W. 2d 281 . The photograph was not placed in evidence.

At any rate, since it is clear to me from Brockwell’s testimony that the arrangement of the shirt tail did not prevent Brockwell from knowing whether Griffin was reaching for a gun, I do not see how any prejudicial error could have resulted.

I would affirm.

Jones, J., joins in this dissent.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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