
    Ellington v. The State.
    No. 4178.
    July 19, 1924.
    Murder. Before Judge Searcy. Payette superior court. December 21, 1923.
   Hill, J.

The motion for new trial contains only the usual general grounds. The jury were authorized to find the defendant guilty of murder; and the trial court being satisfied with the verdict, we cannot disturb it.

Judgment affirmed.

All the Justices concur.

Gene Ellington was indicted, in Eayette County for the murder of Eloyd Head, was tried and convicted with a recommendation to mercy, and was sentenced to life imprisonment in the penitentiary. He filed his motion for a new trial on the usual general grounds only; and upon his motion being overruled he excepted.

No error of law in the trial of the case is complained of, the sole question being whether the evidence authorized the verdict. The State introduced but two witnesses, one of whom, Arthur Head, a brother of the deceased, testified in part as follows: “I knew Eloyd Head; he is dead; he was shot and killed by Gene Ellington, with a pistol, on the railroad below Fayetteville, near Harp’s Station. Shock Smith, Gene Ellington, Douglas Speer, and Ennis Stubbs met us at the railroad. My brother and Gene had just got to that place. Quilla Parks, Walt Glass, and my brother Floyd was with me. . . I don’t remember what was said by any one when we met up there. They were all walking along, laughing and talking and playing. Gene and Floyd got to talking, they were laughing and talking and playing with the rest. I don’t re? member what was said first. I just heard them laughing and talking, and saw them playing. Before the shooting Gene said to Floyd, ‘Get back, God damn it. I don’t care a damn for the young or the grizzly or the gray; get back.’ He run his hand in his shirt and got out his pistol and shot him. He said he would kill you and run around. He held his hand like a man would hold a'pistol to shoot it. The ball struck my brother along here in the head. He never lived any time after being shot; he never spoke a word. We got a wagon and carried him home. Gene ran to his home. He ran hollering. Nobody went with him, but several went behind him. Floyd was not doing anything to Gene to make him shoot him; he did not have any weapon of any kind.” On cross-examination the witness testified: “I didn’t pay much attention to any of them. I thought they were having a frolic.' The first thing I heard of a pistol was when the pistol went off. He ran his hand in his shirt and got the pistol. They were playing. Gene said: ‘God damn you I will kill you. I don’t give a damn whether you are young or old, grizzle or gray.’ He ran his hand into his shirt and got his pistol out.”

Quilla Parks testified as follows: “I was present at the time of the shooting. Me and Floyd was coming from Harp’s. Floyd said, 'Let’s go home,’ and we were on the way home when we met the' other boys, and they went to playing. Gene come up and was playing with the other boys. I heard Gene say, 'That is my brother.’ Gene said he could lick anybody there. They then backed off the railroad. Gene went off the railroad first. Floyd come off next. Floyd went towards Gene. Gene said, 'Damn it, I will shoot you; look out,’ and he fired. He did not say anything else.” On cross-examination this witness testified: “Floyd and Gene were close together. Gene was in front of Floyd. They were all laughing and playing. About that time Gene said he could lick anybody there. He was not having any fuss with anybody. . . He backed off with the pistol, and all were playing; nobody was mad that I saw. I never heard any threats, only- he said, 'Don’t you come on me.’ He didn’t say he was mad. . . As far as I know there had been no trouble between him and Gene Ellington. . . There was no fuss or fight between them, that I know of. I don’t know that they were mad the night before that.”

The defendant made the following statement to the jury: “Of course I shot this boy, but I shot him accidentally. We were all playing. We were all living on the same place. We never had had any words or anything. I was frolicking with the pistol, and it went off and shot him. After I saw I had shot him I threw the pistol down and commenced crying and praying. I called Arthur Head and said, 'You know I liked him, and would not have shot him for anything.’ I was crying. He said, 'There is no use for you to cry; you cannot help it; it was done accidental^.’ It has hurt me so bad I could not keep from crying. Me and that boy was not mad at all, and we lived on the same place.”

Lester G. Liclcson and B. D. Murphy, for plaintiff in error.

George M. Napier, attorney-general, E. M. Owen, solicitor-general, and T. B. Gress, asst, atty.-gen., contra.  