Allen v. State

• Decision Date: 28 October 1907
• Citation: 105 S.W. 70
• Parties: ALLEN v. STATE.
• Court: Arkansas Supreme Court

Page 70

105 S.W. 70

ALLEN v. STATE.

Supreme Court of Arkansas.

October 28, 1907.

Appeal from Circuit Court, Scott County; Daniel Hon, Judge.

Andrew Allen was convicted of arson, and he appeals. Reversed, and remanded for a new trial.

Jno P. Roberts and A. G. Leming, for appellant. Wm. F. Kirby, Atty. Gen., and Daniel Taylor, Asst. Atty. Gen., for the State.

HART, J.

Andrew Allen and Math Larimore were jointly indicted for the crime of arson. After the testimony was taken, the indictment as to Math Larimore was quashed on motion of the prosecuting attorney. The state introduced the following evidence: The testimony of Harvey De Fore, an accomplice, who made a statement in detail of the time and the manner of the commission of the offense. The testimony of James Sutton, showing that he owned the gin; that it was located in Scott county, Ark., and was destroyed by fire in October, 1904; that about eight months before the gin was burned he had asked Math Larimore if he wanted his cotton weighed; that Larimore replied: "No; I want to roll it away from that gin. That gin is liable to get burned." Sam Herrin testified that he heard this conversation between Sutton and Larimore, and that Larimore seemed angry. The written testimony of Milo Williams, taken at the preliminary hearing before the justice of peace, was read to the jury on behalf of the state, as follows: "Milo Williams, being duly sworn, says: I am 16 years old and a resident of Cedar Creek. I know Andrew Allen and Math Larimore. I heard them, while I was fishing, talking about burning out the Sutton outfit last summer. I think it was in July, or June. One of them said: `I would give $150 to have the gin burned.' And the other said he would rather do it himself and save the $150. I told my mother about it, and she said I must not tell it, and afterwards told McDowell and Mrs. Wasson."

The foundation for the introduction of the written testimony of Milo Williams is that of Free Malone, who says: "I was the justice of the peace before whom was had the examining trial of Math Larimore and Andrew Allen, charged with burning James Sutton's gin. I wrote the substance of Milo Williams' testimony. I read it over to him. He never signed it. The examination was held in November or December, 1904. I identify the paper here presented me as that written by me. Jim Sanders and Will Norris, witnesses for the defendant, testified that they saw Milo Williams in Arkansas about one month before the trial, and that he was traveling around with a snake show. The records show that an attachment was issued for Milo Williams on August 7, 1907; that a jury was impaneled to try the case, the statements of counsel were made, and then the court was adjourned until the next morning; that on the 8th day of ...