Opinion
Opinion delivered July 14, 1930.
1. HOMICIDE — CONVICTION OF MANSLAUGHTER — EVIDENCE. — Evidence held to sustain a conviction of manslaughter. 2. HOMICIDE — ISSUES, PROOF AND VARIANCE. — In a prosecution for manslaughter in which the indictment alleged a killing with a leaden bullet, it was not a variance to admit proof of a killing with a steel-jacketed bullet.
Appeal from Pike Circuit Court; B. E. Isbell, Judge; affirmed.
Hal L. Norwood, Attorney General, and Robert F. Smith, Assistant, for appellee.
Mary Bigstaff prosecutes this appeal to reverse a judgment of manslaughter against her in which the jury fixed her punishment at two years in the State penitentiary. According to the evidence adduced by the State, Mary Bigstaff killed Homer Parker on October 6, 1929, in Pike County, Arkansas, by shooting him with a pistol. Mary Bigstaff and Homer Parker had lived together for some time but were not living together at the time of the killing. According to a witness who was present, the defendant commenced shooting the deceased and fired two shots in his body without any cause whatever. Witness stated that Homer Parker was his uncle and that he was not drinking on the evening that he was killed.
A physician who examined the body of the deceased testified that he found two wounds on the body, either one of which would have caused death.
According to the testimony of the defendant, Homer Parker and his nephew came to her house drunk and threatened to break into the house and stomp her to death. Witness had an automatic pistol and fired through the screen to scare Parker and to keep him from killing her with a rock. In short, she testified to a state of case which showed that she shot the deceased in self-defense. She stated that Parker and his companion were both drunk.
Both the State and the defendant introduced evidence tending to show that the defendant and the deceased had, on different occasions prior to the night of the killing, each made threats against the life of the other. The evidence for the State was sufficient to warrant a verdict of guilty.
The next assignment for a reversal of the judgment is that the court erred in permitting the introduction of a steel jacket bullet with which the deceased was killed because this varied from the indictment which alleged that the deceased was killed by a leaden bullet. There was no merit in this contention. Vaden v. State, 174 Ark. 950, 298 S.W. 323.
The appellant has not filed any brief, but the record shows that the case was tried upon competent evidence and that the instructions given by the court fully and fairly covered the theory of the defendants as to the killing. We have carefully examined the record and find no prejudicial error in it. The judgment is therefore affirmed.