Adams v. State

• Decision Date: 18 April 1927
• Docket Number: 370
• Citation: 293 S.W. 19,173 Ark. 713
• Parties: ADAMS v. STATE
• Court: Arkansas Supreme Court

293 S.W. 19

173 Ark. 713

ADAMS v. STATE

No. 370

Supreme Court of Arkansas

April 18, 1927

Appeal from Lafayette Circuit Court; James H. McCollum, Judge reversed.

Judgment reversed and cause remanded.

Luke Monroe, Searcy & Searcy, Carter & Carter and James D. Head for appellant.

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

OPINION

SMITH, J.

Appellant was indicted for the crime of murder in the first degree, alleged to have been committed by shooting and killing one Bob Smith, and, upon his trial, was convicted of that charge and given a life sentence in the penitentiary.

Numerous errors are assigned for the reversal of the judgment of the court below, and, among others, that the undisputed testimony shows that appellant was not guilty of murder in either the first or the second degree, and that the court erred in submitting the question of his guilt of any degree of murder to the jury.

In passing upon this assignment of error, we must, of course, give to the evidence which tends to support that charge its highest probative value, and, when thus viewed, the testimony may be summarized 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 had 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 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 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.

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