HOLDEN
J., dissenting. STEVENS and ETHRIDGE, JJ., concur in the
above opinion.
OPINION
PER
CURIAM.
This is
an appeal from a conviction for murder followed by a death
sentence.
On the
occasion in question, some sort of a show was being given in
the town of Arcola with its accompanying crap game, in which
game the appellant and Lucius Blevin, among others, were
engaged. A controversy arose during the progress of the game
between the appellant and Blevin, which Blevin shortly
thereafter reported to the deceased and Tom Williams, both of
whom were deputy sheriffs, stating that the
appellant had threatened him with a pistol. The deceased
thereupon took the appellant into custody, and was joined
shortly thereafter by the other deputy, Tom Williams. What
then occurred, according to the state's theory, will be
best told in the language of Williams, who testified on
behalf of the state:
"Q.
When you saw him next, he was under arrest with Mr. R. L.
Williams, the dead man? A. Yes, sir.
"Q.
Where was he when you saw him there? A. Out there back of a
boarding house, down there at Arcola.
"Q.
What was Mr. Williams doing with him? A. Mr. Williams was
setting down on an old safe there, and the negro was standing
out in front of him.
"Q.
What did you do--go up where they were? A. Yes, sir.
"Q.
Go ahead and tell what occurred from then on? A. Mr. Williams
told me: 'Tom, this negro had a pistol here, and he has
thrown it away. Let's look for it. Hold him here until I
look for the pistol.' And I said: All right. He is just
lying. though. He has it around here somewhere himself.'
This negro said, 'I sent it home by my
brother-in-law.' I told Mr. Williams he was lying; that
he hadn't sent it anywhere. He looked around under the
house a few minutes and couldn't find it, and I said:
'Well, he said he had it. That is sufficient, and he has
been toting it around.' He said, 'If we get the
pistol that will be better.' Then he said, 'We will
take him on over there to the house,' and the negro said,
'I have my horse here, Mr. Williams,' and Mr.
Williams said, 'Get the horse, Lucius,' and this
negro, Mat Thomas, I told him to come too. We went across the
railroad three or four hundred yards from where we started
from, and he ran his hand down in here (indicating), and said
his drawers were down. I noticed him by the light from the
railroad. We could see by that. It was dark
there where we had been. The first thing I knew then he put
the gun up to my cheek and shot me like that (indicating),
and shot Mr. Williams in the side. I turned around and pulled
my gun and made one shot. The first shot I shot in the ground
right by him, and the next shot I made he ran off and shot at
me twice. I asked Lucius for more shells, and he said,
'No, sir. . . .'
"Q.
Who is Lucius? A. Lucius Blevin, a state witness. He said,
'No sir; I haven't got any shells.' He loaded up
the second time and came back, and the second shot he run up
behind me as I was crossing the railroad and shot me through
the hand, and then shot me through the thumb, and Lucius
said, 'Mr. Tom, please come on, that nigger's going
to kill you,' and caught ahold of me, and I said,
'Turn me aloose,' and I went up to the section house
and told Mr. Tom about it."
On
cross-examination this witness further testified that while
they were back of the boarding house, and while the appellant
was held by Mat Williams and Lucius Blevin, he was struck,
but twice only, with the buckle end of a trousers belt, and
with nothing else, in order to make him tell where his pistol
was.
The
appellants evidence was in sharp conflict with that of the
state's witnesses, and, if true, fully supported his
claim that he killed the deceased in self-defense. His theory
of the case is contained in the following questions and
answers which appear in the transcript of his evidence in
chief:
"Q.
Go ahead and tell the jury all about that; they are going to
decide whether you will be hung or not. A. Yes, sir; I will
tell them the truth and nothing but the truth. Well, the way
it was, from the first beginning, it started about a dollar
and a quarter. Albert Kimberly put a dollar and a quarter
down, and Lucius picked it up. Mat said, 'I shoot a
dollar and a quarter.' He said: 'No, I don't
shoot it; I put the money down there.'
And he looked around and said, 'Who got my money?'
The boy said: 'I ain't got it; you ain't put any
down there.' The boy asked me didn't he put it down
there, and I said: 'Yes, he put it down, two solid halves
and a quarter. I reckon he did. Lucias that time run around
to grab me to cut me, and another fellow run in betwixt us
and said, 'No, I wouldn't do anything like that,'
and by that time I went out and got a brick, and he said
I drawed a pistol on him. I didn't do that. Time I got
out the house Mat come up and said, 'Boys, I wouldn't
have any trouble.' I said, 'I ain't doing
nothing, no use for me to let them run over me.' I had a
brick in my hand then and never pulled a pistol, at all.
After that I went around on the front part where the show was
and went back in the gambling house. That time Mat was up in
the box cutting off the game, and finally Mr. Tom came in and
Mat gets down and gives somebody else his game. Then after he
stood around awhile Mr. Tom went to the door and got to
whispering around, and Mr. Tom left then. I don't know
where he went I suspicioned then--
"Q.
What Tom was that? A. Mr. Tom Mosely. After I heard that
whispering and all going on, I said. 'Well, that fellow
has told him I had a pistol or something.' That time I
goes out then and hides this gun, and time I goes and hides
the gun I went back where the boys gambling, standing up in
there. After awhile I went back out the door again, and Mr.
Williams was standing out there, and he walked up to me.
"Q.
Which Williams was that? A. Mr. R. L. Williams. He came up to
me and said, 'Where is the gun at?' I said, I
haven't any,' and he searched me and didn't find
any. He found a scabbard on me, and said, 'Where that gun
at, nigger?' I said: 'I haven't got any gun. I
sent it home by my brother-in-law,' that very way. So I
walks on off, and he said, 'I told you to stand here, not
move any more.' I said, ' All right,
Cap,' and that time Mr. Williams sent for Mr. Tom, and I
said, 'I am going to stand here and won't move any
more.' That time Mr. Tom came up an ousted his gun and
puts it in my face. I said: 'That's all right, white
folks; I haven't got a pistol.' He curses me and
says, 'You son of a bitch! You get it.' I said,
'I haven't got any gun.' He said, 'Boys, get
him.' He said to me, 'Come around here,' and I
went around there, and he called Mat and Lucius, and they
carried me up there to the gin and taken me out there and
made me pull my clothes off, and I begged them not to whip me
and I would tell them where the gun. He said, 'No, you
don't know where it is at.' And they stretched me
out, one on my head and one on my feet. Mr. Tom grabbed his
gun and hit me once on this side and once on this side
(indicating). Mr. Tom grabbed the belt and hit me two licks
and the buckle broke off then, and Mr. R. L. William said,
'Go in there and get a gin belt.' He said 'No, I
can't get in there,' and that time Mr. Tom walks up
and kicks me here on my mouth. My mouth commenced to bleeding
all down here, and I said, 'Let me up, and I will go and
get the gun.' They let me up then, and I put my clothes
back on me. Blood was running down my face, and I said,
'Let me go get my horse,' and they told me go get
your horse, and I said, 'All right, sir.' I went down
there, and they wouldn't let me get the horse. Mr.
Williams had a flashlight and looked all under the house
where the boys was gambling, and he couldn't find it and
searched my horse and couldn't find it, and he said,
'That nigger's got that gun, let's go carry him
back to the gin,' and told me to get in front. I said:
' I will get it. Don't kill me.' He said, 'I
will kill you if you don't.' I said. 'Lordy, if I
don't get it I am killed, and if I do get it I am
killed.' Mr. Tom was on the side of me. Mr. Williams was
in front of me about as far as from here to Mr. Boddie, and
this Mat was behind me, and Mr. Tom on the side of me, and this Lucius in front of me like the gentleman
sitting there, and he was leading the horse, and I said,
'Lord, horse, you about to walk over me,' and Mr.
Williams said, 'She don't know you to-night, does
she? I said, 'No, sir; she don't know me.'
"Go
on and tell it all. A. So that time Mr. Tom shot off, and
that time I started to break to run. I says: 'No
don't run. If you do, he will kill you.' One mind
said, 'Get your gun,' and that time I eased up to my
horse and got my gun from under the pummel...