Allison v. State
Decision Date | 11 March 1905 |
Citation | 86 S.W. 409,74 Ark. 444 |
Parties | ALLISON v. STATE |
Court | Arkansas Supreme Court |
Appeal from Desha Circuit Court, ANTONIO B. GRACE, Judge.
Affirmed.
STATEMENT BY THE COURT.
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 handcar 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 fair, 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:
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 for 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 ten years' imprisonment in the penitentiary.
The defendant appealed.
Judgment affirmed.
X. O. Pindall and Campbell & Stevenson, for appellant.
The court erred in arraigning appellant before he had been served with a true copy of the indictment as provided by law. Sand. & H. Dig. § 2274; 46 Ark. 141; 24 Ark. 629; 19 Ark. 613. Appellant's motion for continuance should have been granted. 16 Ill. 507; 92 Ky. 68; Kirby's Dig. § 2311. It was error for the court to permit defendant to be questioned about a conviction of another offense. 2 Ark. 229; 34 Ark. 649; 37 Ark. 261; 38 Ark. 221; 45 Ark. 165; 39 Ark. 278; 52 Ark. 303; 73 Ark. 152; 62 Ark. 126; 68 Ark. 577. The court erred in refusing to instruct the jury upon the charge of manslaughter. 36 Kan. 497; 52 Kan. 335; 27 Tex.App. 16; 28 Tex.App. 542; 43 Ark. 289; 110 U.S. 582; 52 Ark. 345; 43 Ark. 289.
Robert L. Rogers, Attorney General, for appellee.
The failure to furnish true copy of indictment was not prejudicial error. 43 Ark. 391; 46 Ark. 141. The matter of granting a continuance was purely a matter within the discretion of the trial judge. 26 Ark. 323; 54 Ark. 243; 57 Ark. 165. The variance in the copy of the indictment furnished was not material. 39 La.Ann. 1060.
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 a term of ten 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, Arkansas. 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 handcar the evening before with Lee Judson and some other negroes. The negroes returned on the handcar, 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...
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