Bartley v. State
| Decision Date | 20 January 1947 |
| Docket Number | 4429 |
| Citation | 199 S.W.2d 965,210 Ark. 1061 |
| Parties | Bartley and Jones v. State |
| Court | Arkansas Supreme Court |
Rehearing Denied February 24, 1947.
Appeal from Clay Circuit Court, Western District; Zal B. Harrison Judge.
Affirmed.
Marcus Fietz, W. J. Stone and J. L. Taylor, for appellant.
Guy E. Williams, Attorney General, and Arnold Adams, Assistant Attorney General, for appellee.
Information filed by the prosecuting attorney in the circuit court of the Western District of Clay county charged appellants, Eugene Bartley and Harlan Jones, with murder in the first degree for unlawfully killing Fred Ivins on June 13, 1945, by "shooting, beating and drowning" him. J. B. Bartley, father of appellant, Eugene Bartley, was jointly informed against with appellants, but was granted a severance under § 3976 of Pope's Digest. The separate trial of appellants resulted in a verdict and judgment finding them guilty of murder in the second degree and fixing their punishment at seven years in the penitentiary from which is this appeal.
At the conclusion of all the testimony, appellants requested a directed verdict of not guilty, which was refused. The chief contention of appellants for reversal of the judgment is that the evidence is insufficient to sustain the verdict.
When viewed in the light most favorable to the State, the testimony discloses the following facts:
J. B. Bartley resided in the Delaplaine community in northwestern Greene county, while Fred Ivins lived across the county line in southwestern Clay county about 3 miles from Bartley. Appellant, Harlan Jones, who was 19 years old in 1945, worked for and made his home with J. B. Bartley and his son, Eugene Bartley, who was 17 years of age. Fred Ivins, J. B. Bartley and others had livestock running on the range in the lowlands of the vicinity in June, 1945, when backwater from an overflow of Black River covered these lands with the exception of a few scattered ridges.
On June 13, 1945, Fred Ivins and two neighbors, Dolph Crouch and Sig Young, were engaged in removing hogs from the high water area of southwestern Clay county. The hogs were caught and tied on the high ridges and removed by boats. Ivins was using his own boat and the other two were using Crouch's boat. They finished loading the hogs from "Turkey Pen Ridge" about 5 p. m. when they separated, Crouch and Young going south in their boat, while deceased started north toward his farm on Dalton Island about three quarters of a mile away. They had been separated about 10 minutes, and Crouch and Young had proceeded a distance of about 100 yards, when they heard six or seven rifle shots. There were two series of shots which sounded differently. They heard a dog "holler" about the fourth or fifth shot.
After the shooting, they heard Ivins say, "What did you shoot me for?" and J. B. Bartley answered, "I thought you were a squirrel." Then Ivins said, "You get out from behind that tree and go on off and I will not bother you." Ivins then called, "Oh, Dolph," but Crouch did not answer, and Ivins said, "Oh, Dolph, come and get me." Young and Crouch both testified positively that the voices were those of Ivins and J. B. Bartley. They heard no other noises except the occasional squealing of the hogs. They heard no splashing of the water and did not hear Ivins threaten to kill anyone. They proceeded home with their load of hogs at Young's suggestion and did not respond to the call for assistance made by Ivins.
The following day the sheriff of Clay county questioned appellants who voluntarily told the sheriff that they had a fight with Ivins and where his body would be found. His best recollection was that appellants told him they killed Ivins.
A group of neighbors living in the vicinity went to the scene of the encounter on the morning of June 14th, where they found deceased's boat in which there were several hogs, a .22 caliber automatic rifle and a pair of boots belonging to deceased. Deceased's hat and boat paddle were floating within 15 or 20 feet of his boat. The sheriffs of Greene and Clay counties were summoned. The body of Ivins was recovered about 4:30 p. m. a short distance from the east edge of Turkey Pen Ridge in water variously estimated at seven to ten feet in depth. A large cypress log was found afloat and lodged in some brush and trees about 60 yards from the point where Ivins, Young and Crouch loaded their hogs. The log was covered with moss and debris and there were indications that it had been trampled upon. A dead dog belonging to J. B. Bartley was found about 25 feet from the log.
The funeral director, who prepared the body for burial, testified that one bullet had entered the right buttocks about the center of the hip pocket area and had emerged at the upper juncture of the two pelvic bones. Another bullet had entered the back part of the right arm, emerged from the arm and reentered above the ribs but below the skin. There were bruises about the face and throat. There was one bruise on the right side of the throat about the size of a man's thumb and three other dark marks on the left side of the throat. There was also a slight swelling about the center of the base of the skull. Blood was running from the nose, mouth and ears of deceased and parts of his body had been eaten by turtles or crawfish.
An open knife was found clenched in the right hand of deceased and his .22 caliber automatic rifle, which held 16 shells, had 12 shells in it. Dolph Crouch and Sig Young testified that Ivins had fired the gun twice during the day and they had not seen him reload it.
There was evidence of prior trouble and ill feeling between J. B. Bartley and deceased. In 1943, Ivins was convicted on an assault to kill charge for shooting J. B. Bartley. On June 12, 1945, the day before Ivins met his death, J. B. Bartley and a neighbor were driving their cattle on or near Ivins land when the latter ordered them off his property at the point of a gun and warned them to keep their cattle off his land.
Appellants testified in their own behalf and there were several discrepancies between their testimony at the trial and that given by them at a habeas corpus hearing held soon after the death of Ivins. According to their testimony, J. B Bartley had sent them to look for hogs and they were in their boat near Turkey Pen Ridge when they were suddenly attacked by Ivins who was concealed in some bushes about 20 feet away. Ivins first shot through the hat of appellant, Eugene Bartley, and then shoved his boat toward them firing the automatic rifle and cursing and threatening to kill them as he did so. They also testified that Eugene Bartley fired two shots from his .22 caliber rifle at Ivins as the latter advanced upon them. After forcing Eugene Bartley to place his gun and the shotgun of Harlan Jones in his boat, Ivins then shot Eugene in the hip and turned his gun to shoot Jones who grabbed Ivins' gun and threw it back in the boat as the three were thrown into the water when appellants' boat capsized. Appellants also testified that they were both attacked by Ivins in the struggle that ensued in the water in which Jones was struck in the chest with a knife by...
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