Adams v. State

• Decision Date: 09 April 1928
• Docket Number: 346
• Citation: 5 S.W.2d 946,176 Ark. 916
• Parties: ADAMS v. STATE
• Court: Arkansas Supreme Court

5 S.W.2d 946

176 Ark. 916

ADAMS v. STATE

No. 346

Supreme Court of Arkansas

April 9, 1928

Appeal from Lafayette Circuit Court; J. H. McCollum, Judge affirmed.

Judgment reversed.

Allen Hamiter, Jim Landes, Searcy & Searcy, Luke Monroe, J. D. Head and Carter & Carter, for appellant.

H. W Applegate, Attorney General, and John L. Carter, Assistant for appellee.

OPINION

WOOD, J.

This is the second appeal in this case. 173 Ark. 714, 293 S.W. 19. On the first appeal the cause was reversed, and remanded for a new trial because of the error of the trial court in refusing certain prayers of the appellant for instructions.

The facts were stated on the former appeal as follows: "In October, 1925, appellant, who had previously served as chief of police of the city of Texarkana, and Virgil Grigson, who was at the time constable of the township in which that city is located, were engaged in the retail meat and grocery business in Texarkana. Grigson had invested about $ 3,000 in the business and appellant about $ 160. They had disagreed and had quarreled, and, on and prior to the day on which Smith was killed, both had been drinking heavily. On the morning of the killing appellant went to the home of Osborne Carpenter to get a large pistol, which he had previously exchanged with Carpenter for a smaller one, and, in examining the pistol to ascertain whether it was loaded, it was accidentally discharged. Appellant told Carpenter he wanted the pistol to shoot beeves with, as he had only a single-action one, and on one occasion he had shot a beef with a smaller gun, and the bullet glanced off the head of the beef and came near hitting the man who was employed to help appellant butcher the beef. In addition to this pistol, Grigson had a Winchester rifle, which was kept at the store for the same purpose. Grigson and appellant had a quarrel in the store, and appellant and his sons took Grigson's pistol away from him. Appellant offered several times that day to fight Grigson, but the challenge was not accepted. Grigson attempted to telephone the police from the store, but appellant refused to permit him to use the telephone. Grigson directed his son to call the police, but the sons of appellant refused to permit him to do so. Grigson went to his car, but appellant took the key out of the car, and would not permit Grigson to leave in it. Grigson then went to a filling station a block away from the store, and attempted to call the police headquarters, but got no response. Grigson then called the sheriff's office, and requested the sheriff to come to the filling station where he then was. In a short time Lish Barber, the sheriff of the county, and Bob Smith, his deputy, drove up to the filling station in separate cars. Grigson told the officers about the difficulty he had with appellant, whereupon the sheriff, his deputy and Grigson drove to the store. It was admitted that appellant and his sons knew that Grigson had gone to call the officers. When the party reached the store they walked in, Grigson leading, the sheriff next, and Smith behind, and, as they came into the store, Wallace Adams, a son of appellant, remarked, 'Daddy, there is Lish Barber,' and appellant replied, 'Damn Lish Barber--nobody is going to arrest me.'

"The State's testimony is to the effect that Allen Adams, a younger son of the appellant, was also in the store when the officers came in, and that Adams and his sons placed themselves as follows: Wallace Adams was behind a counter, near the front door, armed with his father's pistol; Allen Adams, the younger son, was in another corner of the store, armed with the Winchester rifle; and appellant was near the center of the store, behind a small counter, armed with a knife. Ruth Shumaker, a young lady whose home was near appellant's store, testified that she saw Barber get out of his car, and that he spoke to her, and smiled. Barber walked near the center of the store, and in a friendly way said, 'Hello, Hendricks.' The testimony is sharply conflicting as to what then occurred, and the State's version was not developed until after the appellant had put on his testimony, and one of the errors assigned is the order in which the State was permitted to develop its case. We state this testimony at this time to preserve the proper chronology. According to appellant and his sons, who testified in their father's behalf, Barber's first remark was to inquire, 'What is the matter with you and the big Irishman?' meaning Grigson. Appellant answered, 'The big son-of-a-bitch was trying to run me out of my business, and nobody can do that.' Appellant testified that, when he said this, Grigson jumped back and began to curse, and, as appellant turned towards Grigson, Barber shot appellant, the ball going through appellant's arm, penetrating his body and lodging in his lung. Appellant further testified, that as soon as Barber shot him, Wallace Adams seized Barber's pistol, and a scuffle for its possession ensued, and that Barber struck Wallace over the head with the pistol. Appellant then took the rifle from the hands of his younger son, Allen, and, as he did so, Barber threw Wallace from him and started towards appellant with his pistol drawn on him, whereupon appellant shot Barber with the rifle. Barber then turned and ran through the screen door, and this was the last appellant saw of Barber.

"Grigson, who was called in rebuttal, and whose testimony was objected to upon the ground that his testimony was not rebuttal, stated that, when Barber entered the store, Adams came from behind the counter with the knife in his hand, and advanced on Barber, who slowly retreated, pushing appellant back, and telling appellant to drop his knife, but appellant advanced, and struck at Barber with his knife, cutting Barber's hand and left wrist to the bone, and, when Barber drew his pistol, Allen Adams and Barber both fired, and Wallace Adams shot Smith, inflicting a slight flesh wound. All three shots were fired so near together that you could not tell who fired first. Grigson fell down behind the counter, and went out the back door. The shot fired by Allen Adams knocked Grigson's hat off his head. Appellant denied cutting Barber, and denied that Barber was cut, but several witnesses, including the undertaker who prepared Barber's body for burial, testified to the existence of the knife wounds.

"Grigson testified that Smith and Barber left the store, and appellant followed them, and while Barber, who had got into the street, was backing away, appellant shot Barber just above the heart, and Barber died in a few minutes. Just as this fatal shot was fired, Smith, who was about two-thirds across the street, fired two or three shots at appellant as appellant was advancing on Barber. Smith then passed behind an automobile parked on the side of the street, and from there he went along the walk to the house of a man named Whitney, through whose yard he walked, coming out at the rear of Whitney's lot. Smith then went to the store of J. H. Scott, and appellant saw Smith enter the store. Appellant admitted that, after shooting Barber, he went back into the store, but, in a short time, he came out again and started for Scott's store with the rifle under his arm. Some boys who saw appellant coming remarked, 'Yonder he comes, and he will kill all of us.' Smith and Scott heard this remark, and they came to the door of Scott's store, and Smith cried out to appellant, 'Henry, I give up, I throw my gun away,' and as he said this he drew his pistol from his holster and pitched it in the street, six or eight feet beyond the sidewalk. Appellant called Smith a vile name and said, 'Yes, give your soul to God,' and shot Smith. Appellant denied hearing the remark Smith made about giving up, but two witnesses, who were further from Smith than appellant was, testified that they heard the remark. Smith ran out of the store, and, as he was passing out the rear door, appellant again shot Smith, who died the following day. Scott remonstrated with appellant, who said, 'I'll kill every damn one of them.' "

At the last trial a witness for the defendant by the name of Wead testified that he saw Bob Smith go across the street from Mrs. Shumaker's house. He turned right down toward Grigson's store, went about thirty feet in that direction, then turned around and started back toward old man Scott's store.

Mrs. Jenkins, a witness for the defendant, testified that she saw Bob Smith come out of the back of Scott's store and run. She heard a lot of shooting--couldn't say that she heard a shot just as he came out. He didn't fall, but ran awfully fast. He ran down by the side of Mrs. Edwards' house and on into Jackson Street, near the welding shop. He didn't run like he was hurt. Witness didn't hear him holler when he came out of the back door. She was close enough to have heard him holler if he had done so.

Clyde Hicks, a witness for the defendant, testified that he took Smith to the hospital after he was shot. Smith told him that Henry Adams shot him, and that he (Smith) emptied his gun at Adams. Witness was holding Smith up in the automobile at the time. Smith said that he thought he was dying.

Dr. Hunt, witness for the defendant, testified that he was called to see Bob Smith after he was brought to the hospital. He heard Smith make a statement just before he was operated on. Smith stated that he emptied his gun.

Virgil Grigson, a witness for the State, testified that he called Lish Barber, the sheriff, over the telephone, and told him that he and Henry Adams had had some trouble, and he wanted him to come over there. When Barber came into Burrow's store, witness told him about the difficulty he had with Henry Adams. Witness was then asked what Barber said he would do, and answered,...