
    DODSON v. THE STATE.
    No. 8269.
    May 18, 1931.
    
      Zach. Childers, for plaintiff: in error.
    
      George M. Napier, attorney-general, Hollis Fort, solicitor-general, and T. R. Gress, assistant attorney-general, contra.
   Beck, P. J.

John Dodson was indicted for the murder of Yerna Dodson, his wife; and upon the trial the jury returned a verdict of guilty, with a recommendation. Thereupon the defendant made a motion for a new trial, which was overruled, and he excepted. The motion for new trial contains only the usual general grounds that the verdict was contrary to the evidence and without evidence to support it; that it was decidedly and strongly against the weight of the evidence, etc. The evidence in substance is as follows:

Josey Mae Edwards, a witness for the State, after stating that she knew the defendant and the decedent, testified that she saw them walking together in the road: “They were walking side by side. I had not watched them long. I did not hear them tailring to one another; and if there was any dispute between them, I' did not hear it. I don’t know how far I was from them, but I was not very far. It was a little further than to the corner of this building, but 'it was not as far as from here to the first street out there [indicating]. I don’t know whether it was 150 leet. I was close enough to them to sec them good. I could not see what each one had in their hand. It was daytime, and I could toll who they were. . . When I seed him they had hold of each other; he pushed her off, and then the pistol fired. I mean John Dodson pushed Yerna Dodson off. After the pistol fired Yerna Dodson died. Yerna started to fall, and John caught her; then he laid her on the porch, and I went to her. I did not hear her say anything after she was shot. I don’t know how long she lived after she was shot, but not very long. She died that same day. . . After John shot Yerna he went up the road. I disremember who took Yerna home, but she was taken home in a wagon. John was not with her and did not take her home. . . Lige Brown was with John Dodson and his wife, right with them.” On cross-examination this witness testified: “I didn’t hear any words passed between John and his wife. 1 wasn’t paying that much attention to them.”

Dave Jackson, a witness for the State, testified in part: “John killed his wife with a pistol, and I saw it. I was about 150 or 200 yards from the shooting. Before the shooting occurred I heard no words between John Dodson and his wife. After the shooting I went there. John Dodson was gone. From the road, him and Lige Brown carried her to the porch. From there I don’t know who carried her. I don’t know what become of John after he carried her from the road, he left. . . At the time of the shooting Yerna was doing nothing to John Dodson as I seen, no more than they were locked up. Locked like their arms were locked together like that [indicating]. I don’t know how far John was from Yerna when he shot her, but they were close together. . . No, sir, I wasn’t right with them. . ‘ . ■ I was 150 or 200 yards from them when the pistol fired. I was with John Milner, Dave Scrutchens, and Anna Claude Adams. We could see them down the road.”

Annie Claude Adams testified for the defendant, in part, as follows: “I was about about 24 yards from John Dodson the day his wife got shot. She turned round to me, and went back with him, laughing and playing. I did not see him when he shot her. Me and Uncle John and Dave Scrutchens were there. I just didn’t see it. They did not act like they were mad with each other. . . I was with Dave Jackson, John Milner, and Dave Scrutchens. I was not with them all the time. I met them. I did not tell them nothing, as to how it happened. I made no statement to them at all. When I met Dave Jackson and Dave Scrutchens I did not tell them that John Dodson and Yerna Dodson were fussing before John shot her.”

Lige Brown, a witness for the State, testified: “I was with them the day that John shot his wife. They were walking, tussling and playing, and there was a car coming, and they tussled with the pistol and were playing, and there was a car come along; and when he went to hand me the pistol, it went off and shot her. Nobody else was there with us. . . I don’t know why he had the pistol in his hand. . . I don’t know that John and Yerna had been fussing about her not cooking dinner for him. I did not hear them say anything about that. The pistol went off in the hands of John Dodson. She started to fall, and John caught her, and me and him put her on the porch. John went after the doctor. He did not leave home. . . I don’t know what John and Yerna was saying to each other. I was there. I say they were playing because they were laughing, what about I don’t know. . . I was right there. I am not any kin to John, the defendant, and am no kin to his wife, the deceased. I have no interest in this case. I work on the same place. This woman, Annie Claude Adams, she was down the road. Don’t know how far she was from me. She came up there right away. Last time I saw Josey Mae Edwards she was in bed in the daytime. She came out there, and she got there before they moved the woman who was shot. . . I don’t know where John Dodson got the pistol from. I was with him, and when I seed the pistol John had it in his hand. I saw it two or three minutes before the killing. John had the pistol in his hand, down by his side, walking along. John put it up there in position to shoot Yerna, I reckon. . . I can not tell the jury anything that Yerna said to John Dodson, and can not tell the jury anything that John said to Yerna. I say they were playing because they were laughing. . . They were tussling in the big road, but I don’t know what they were tussling about; they didn’t say. I don’t know what he was trying’to do to her or she to him. Before the tussling John had the pistol in his hand, and Yerna started to tussling with her husband, with that pistol in his hand. That is when the shooting occurred. . . After John shot his wife, he went for the doctor. . . I don’t remember nothing John said there when he shot her.”

Dave Jackson, recalled by the State, testified: “I know Annie Claude Adams, the witness who testified here this morning. I saw her immediately after the shooting of Yerna Dodson. Q. What statement did she make to you, if any, as to what was said between Dodson and his wife? A. No more than she says John threatened to kill her, didn’t know what they said. She told me that after the shooting; she was standing there in the road. . . Annie Claude told me they were fussing. Said John threatened to kill Yerna; didn’t say what for. She told me that at the body where the woman fell. I heard her talking about it; I don’t know who she was talking to at the time. I do not know all the people there. I don’t know all the people down in that section. I can’t tell you who was there at the time, except me. I was with John Milner and Dave Scrutchens, and they heard it. She told me John Dodson and his wife were fussing.”

John Milner, a witness for the State, testified: “I know Annie Claude Adams. I was going up the road the day Yerna Dodson was killed. I heard the shooting. I saw them tangled up and tussling in the road. I was about two hundred yards from them. Immediately before the shooting, I had a talk with Annie Claude Adams. When I got to where she was I asked her, I looked up the road and saw them tangled up and tussling, and I asked, her what they were doing — playing? and she said, no, sir, they were fighting. She said that he asked her to go home and fix his dinner, and she told him she had dinner fixed; and that when she told him that, he says, ‘’Well, you go home and put it on the table,’ and she says, 'You been putting it on the table,’ and he says ‘I’m going to kill you anyhow, God damn you.’ That’s what she said he said.”

Dave Scrutchens, a witness for the State, testified: “Annie Claude Adams is my wife’s sister. I remember the day that Yerna Dodson got killed. I was with John Milner and Dave Jackson that day. I saw Annie Claude Adams that day; we met her just before he killed her. It was about five or six minutes before, something like that. Annie Claude Adams made a statement to us as to what was said between John and Yerna Dodson. She told it this way. Said they were fussing up the road. I says, ‘What’s the matter?’ and she says, ‘John Dodson met his wife and told her to come on home and cook him some dinner.’ She said, ‘Your dinner is at home.’ He said, No, I want you to go back and give it to me.’ She says, ‘Can’t you get it? It 'is cooked.’ She says, ‘You go home and get it.’ He says, ‘I don’t know how to get it; you go back with me yourself, or I’ll kill you, God damn you.’ She told us that occurred about five or sis minutes before the shooting. I am not a bit of kin to Dodson’s wife. Her father is my ma’s third cousin, that’s all.”

James Cottle, a witness for the State, testified: “I remember the occasion when 'it is said that John Dodson shot his wife. He came to my house that morning. He did not borrow anything at first; he passed, he came back up the road, and when he came back up the road he borrowed a pistol from-me. I let him have a pistol that day. I never got the pistol back.”

Annie'Claude Adams, recalled for the defendant, swore that she did not tell John Milner, Dave Scrutchens, and Dave Jackson that John Dodson and Yerna Dodson were fighting or fussing. “I told them they were doing nothing.”

The defendant’s statement in full is as follows: “Me and Lige Brown were coming down the road, and we met my wife and Annie Claude’down the road there. I asked her, ‘You done cooked my dinner?’ and she says, ‘Yes, I’ll go on back,’ so she turned around and come on back, and me and her went to playing. We got to the house, and I wanted to light a cigarette, and I went in and lighted the cigarette, and Annie Claude she lay across the bed. We got up there across the crib and us went to playing; us never fought; and she asked me to let her see the pistol, and I says to Lige, ‘You take it,’ and that time a car passed, and when I pulled it back out, it. shot off and shot her through the arm. I throwed it down, and me and him took her and carried her to the porch, and she stayed there till I come back. I went to get the doctor.”

In view of the testimony which is set forth above, this court can not say that the verdict is without evidence to support it, or that the court abused its discretion in refusing a new trial. The judgment is therefore

Affirmed.

All the Justices concur.  