Allison v. State

• Decision Date: 11 March 1904
• Citation: 86 S.W. 409
• Parties: ALLISON v. STATE.<SMALL><SUP>*</SUP></SMALL>
• Court: Arkansas Supreme Court

86 S.W. 409

ALLISON v. STATE.^*

Supreme Court of Arkansas.

March 11, 1904.

Appeal from Circuit Court, Desha County; Antonio B. Grace, Judge.

O. J. Allison was convicted of murder in the second degree, and he appeals. Affirmed.

Warren Baldwin, a conductor in the employ of the Iron Mountain Railway Company, on the 18th of September, 1904, had charge of a passenger train on that road. This train passed the town of Dermott at about 2 o'clock in the morning, and was going northward. Several passengers boarded the train at Dermott, among them being O. J. Allison, a section foreman in the employ of the same road. Allison had come down from McGehee, a station a few miles north, on a hand car, with some negroes, and was returning to McGehee on the train. As Allison was in the employ of the company, he made some objection to paying his fare, but, as he had no pass, Baldwin, the conductor, required him to pay his fare to McGehee, it being only 21 cents. After he had paid his fare Allison asked the conductor for a cash fare receipt, and the conductor told him he would give him one so soon as he could get the blank receipts, and he sent the porter to get the receipts. Allison followed the conductor forward into the negro coach to get the receipts, but while the receipt was being prepared, or just after it was prepared, he got into a quarrel with the conductor, whereupon he pulled out his pistol and shot the conductor, killing him instantly.

There is some conflict in the evidence as to the facts, though the majority of the witnesses present at the killing testified that Baldwin, the conductor, was making no demonstration whatever towards Allison at the time he was shot, and that he had said nothing to him calculated to arouse him to anger, except to tell him that he did not want to have any trouble with him. The testimony of these witnesses tends to show that it was an unprovoked murder, with nothing to mitigate or excuse the crime. According to these witnesses, Allison killed the conductor for no other reason than on account of anger at him for not permitting him to ride free of charge and compelling him to pay 21 cents. But the defendant and one of the witnesses for the defense testify to a different state of facts.

Lee Judson, a negro witness for the defendant, testified as follows:

"I had went to Dermott on a hand car, and, after we gets to Dermott, Mr. Allison says, `Lee, you stay and go up on the train, and I will pay your fare to McGehee.' We gets on the train and meets the conductor, and the conductor asks him where was his pass, and he said, `I have not got one,' and the conductor said, `Fare,' and he pulls out a dollar and gave him two fares, and the conductor gave him back the change and said to him, `Go back to your own coach,' and he said, `Give me a cash fare receipt,' and he said, `I will give you nothing; don't worry me,' and they go out, and after a leetle they come back, the conductor first and Mr. Allison after him, and Mr. Allison asked for a cash fare receipt, and he said, `I will give you one as soon as my porter goes and gets them,' and the porter goes and gets them and brings them to the conductor, and the conductor said, `You are one of those smart Alecks, and I am not afraid of you,' and Allison said, `I am not afraid of you,' and he cursed Mr. Allison and said, `God damn you,' and reached back after his gun, and Mr. Allison said, `Whoap! That don't go,' and the conductor stepped up towards Mr. Allison, and he shoved him back with one hand and shot him."

He further stated that Allison had not attempted to draw his pistol before the conductor drew his weapon. On being asked what the conductor was doing at the time he was shot, he answered that "he was pulling out his gun and walking up on Mr. Allison when he shot him," and that witness saw the weapon he was attempting to draw.

Allison testified that he followed the conductor into the negro coach with no intention of having a difficulty with him, but only to secure the cash fare receipt. His statement of the altercation that led to the shooting was as follows:

"I walked up and sat down on the end of a seat and waited until he got through collecting his fares, and I said, `Captain, I would like to have those cash fare receipts' —just that way—and he said, `I have been bothered with you enough,' and I said, `No you haven't,' and he said that `You are a God damned liar,' and I said, `You are another one,' and when he made the remark and called me a God damned liar, he started down in his pocket after his gun, and I said `Whoap! That don't go,' and, when I seen he had his gun coming up with it, I knew that he was going to shoot me, and I jerked my gun out and pulled the trigger, and had no idea of hitting him, but just shot to save my life."

The presiding judge instructed the jury correctly as to murder in the first degree and second degree and as to the law of self-defense, but refused to give the following instruction asked by the defendant on voluntary manslaughter: "If the jury believe from the evidence that, on the night of the alleged killing in this case, the defendant, O. J. Allison, was on the train of which the deceased, Warren Baldwin, was conductor; and further find that said Allison and Baldwin became engaged in a dispute or quarrel about a cash fare receipt, and that by reason of said quarrel or dispute Warren Baldwin manifested or evinced towards the defendant a disposition calculated to arouse the anger of the defendant; and that you further find that, coupled with this, and as a part of it, the said Warren Baldwin provoked a passion irresistible in the disposition of Allison, and that by reason of said passion, if you find one was caused and brought on by the acts or conduct of the said Baldwin, and that acting under the influence of a passion caused by a provocation given at the time by Baldwin, apparently sufficient to make a killing irresistible in the mind of the defendant, and that acting under the influence of said passion, the defendant then and there shot and killed Warren Baldwin; if you further find that said shooting was sudden, without malice or deliberation or premeditation, and in the heat of passion— you should find the defendant guilty of manslaughter, the punishment of which is not more than seven, nor less than two, years' imprisonment in the State Penitentiary."

No instructions in reference to manslaughter were given. The jury returned a verdict of guilty of murder in the second degree, and fixed the punishment at 10 years' imprisonment in the penitentiary.

The defendant appealed.

X. O. Pindall and Campbell & Stevenson, for appellant. Robert L. Rogers, Atty. Gen., for the State.

RIDDICK, J. (after stating the facts).

This is an appeal by O. J. Allison from a judgment convicting him of murder in the second degree and sentencing him to confinement in the State Penitentiary for the term of 10 years. Allison was a section foreman in the employ of the Iron Mountain Railway Company, and had charge of a gang of men at McGehee, Ark. Warren Baldwin, the man he killed, was a conductor in the employ of the same company. On the 18th day of September, 1904, he had charge of a passenger train bound northward from some point in Louisiana to Little Rock. This train arrived at Dermott in this state about 2 o'clock in the morning of that day. Allison and a negro man, Lee Judson, got on the train at Dermott to go to McGehee. Allison had come down from McGehee on a hand car the evening before with Lee Judson and some other negroes. The negroes returned on the hand car, with the exception of Judson, who, at Allison's request, remained to return on the train with him. As Allison was in the employ of the railway company, he made some objection to paying his fare, but, as he had no pass, the conductor required him to pay the fare, which was only 21 cents. After he had paid the fare Allison asked the conductor for a cash fare receipt. The conductor told him he had no blank receipts with him, but would send the porter to bring them from another part of the train, and he thereupon told the porter to get the receipts. Allison followed the conductor forward into the negro coach to get the receipt, but while the receipt was being prepared he got into a quarrel with the conductor, whereupon he pulled out his pistol and shot the conductor, killing him instantly.

Several witnesses for the state testified that the conductor made no assault on Allison, that he said nothing to him calculated to offend or anger any reasonable person, but that Allison seemed angry, spoke harshly to the conductor, and suddenly fired upon and killed him. On the other hand, both Allison and the negro, Lee Judson, testified that Allison neither spoke harshly nor made any attempt to draw a pistol until the conductor cursed Allison and attempted to draw a pistol as if to shoot him.

There are several questions presented by the appeal which have been discussed in the brief and oral argument of counsel for defendant. We have duly considered all of them, but do not find that it is necessary to refer to but a few of them here.

The first contention made by the counsel for the defendant is that the court erred "in arraigning the defendant, over his objection, before the expiration of the 48 hours after the service of a copy of the indictment upon him." But a copy of the indictment had been duly served 48 hours before the arraignment. The only defect in this copy was that at one place where the defendant's name appeared in the original it was omitted in the copy and the space left blank. But as the name of the defendant not only appeared in the caption of the indictment, but in three other places in the indictment, and as in the copy it was omitted in only one of these places, it does not seem possible that such a mere clerical oversight could have misled either the defendant or his counsel. Besides, the statutes only require such a copy to be delivered in...