Childs v. State

• Decision Date: 27 March 1911
• Parties: CHILDS v. STATE
• Court: Arkansas Supreme Court

136 S.W. 285

98 Ark. 430

CHILDS v. STATE

Supreme Court of Arkansas

March 27, 1911

Appeal from Union Circuit Court; George W. Hayes, Judge; affirmed.

Judgment affirmed.

Marsh & Flenniken, Pat McNally and Bradshaw, Rhoton & Helm, for appellant.

1. The punishment is excessive. 76 Ark. 515, 520.

2. It was error to refuse to give instruction No. 5 asked by defendant, and in modifying it. It was the duty of the State to prove beyond a reasonable doubt that defendant did not kill in self-defense. The burden was on the prosecution.

3. The court erred in admitting testimony as to the action of Seth Childs, and in permitting P. Price to testify to substantially the same facts. Also in permitting testimony as to the shooting of Smith, which was purely accidental.

4. The indictment should have been quashed. Kirby's Digest § 4519.

Hal L Norwood, Attorney General; Wm. H. Rector, assistant, for appellee.

1. The punishment is not excessive. We think defendant was lucky in escaping the halter.

2. It was not error to refuse instruction No. 5. The court properly modified it. The State is not called on to prove a negative. Self-defense must be proved by the defendant. Kirby's Digest, § 1765; 76 Ark. 110; 76 Ark. 515.

3. There was no error in the court's rulings as to admitting testimony. 77 Ark. 444.

4. The motion to quash was properly overruled. The excuse of a juryman is a matter addressed to the sound discretion of the judge. Kirby's Digest, § 4519.

OPINION

HART, J.

Dave Childs was indicted for the crime of murder in the first degree, charged to have been committed by killing Franklin Williams. Upon a trial before a jury, he was convicted of murder in the second degree and sentenced to a term of ten years in the State penitentiary.

Franklin Williams was killed by Dave Childs on August 27, 1910, at a public speaking at Midway Church in Union County, Arkansas. Williams was the husband of Callie Williams, a sister of Childs. They had been married 20 years; but had separated on the 20th of September, 1909. A suit for divorce, which also involved the custody of their children, was pending at the time of the killing. Williams' wife had charged him with cruelly beating her before their separation. It seems that all these matters had caused bad blood between Childs and Williams. On the day of the killing Franklin Williams and M. D. Smith, a justice of the peace, passed the wagon of Dave Childs. The manner of the killing and the circumstances connected therewith, as testified to by Smith, may be briefly stated as follows: Williams said: "Dave, I wish you would let my children alone." And the latter replied: "I think Callie ought to have the right to have her children part of the time." That was about all of that conversation, and Williams and Smith passed on. Childs stayed at his wagon, where he was feeding his horses. In a few minutes Williams and Smith returned going in the direction of the speaking. As they passed Childs' wagon, he said to Williams: "Your boy has been here two or three times for a nickel to buy candy and lemonade." Williams said: "Do not let him have it." Dave Childs then asked Smith if there was any law to keep Callie from having her children part of the time, and Smith answered that he knew no such law. About this time, Scott Childs, the brother of the defendant, Dave Childs, began to curse and abuse Williams, whereupon the latter with an oath said: "If nothing but trouble will do, I can give it to you." Smith commanded the peace. Then he and Williams started away. After they had walked away two or three steps, Dave Childs commenced firing a pistol at Williams. He fired two shots, hitting him both times. The next shot hit Smith. Childs then fired two more shots.

On cross examination, Smith stated that when Williams said: "If nothing but trouble will do, I can give it to you," he just stood there rubbing his hands together. Just prior to this, he had been advancing toward Dave and Scott Childs, and when he made the remark was within three feet of Scott Childs and four or five feet from the defendant, and was standing facing them both. Smith said that Scott Childs had a knife in his hand; and that he (Smith) was trying to keep the deceased from advancing on Scott Childs. That deceased had stepped back one step and, starting to leave, had taken two or three steps toward the crowd before the shooting began.

On re-direct examination, over the objection of defendant, Smith was permitted to state that Scott Childs, the brother of defendant, grabbed the breast yoke of the wagon and struck deceased over the head two licks with it immediately after defendant shot him. Smith also stated that he did not see any pistol in the hands of deceased.

Dr. J. A. Moore, witness for the State, testified as follows:

That he lives at Lisbon, Arkansas; was a practicing physician and surgeon, and had been for twelve years; knew the deceased in his lifetime; that he was at Midway the day the deceased was killed, and was called on to make a post mortem examination, and that he did so; he found the top bullet entered the body in front of the right shoulder; passed the collar bone between the first and second ribs, ranged to the left, passing through the lung came out on the left side in front of and below the shoulder. The next bullet passed through his left arm below the elbow. The next one entered between the eleventh and twelfth rib about three inches to the right of the spine, ranging to the left, passing through the kidney and liver and the lower part of the heart, and came out between the fifth and sixth ribs. The next one entered in about an inch of the one just referred to, passing below the twelfth rib, ranging to the left, and this one struck the spinal process of the first lumbar vertebrae and glanced behind the spine. "Any one of the three of these shots would have produced death, and I think that the one that passed through the kidneys and heart would have produced instant death."

Another witness for the State testified that when deceased's body was turned over, his pistol, which was already partly out of his scabbard, fell from it. Other witnesses for the State testified that the pistol of deceased was out of the scabbard and was lying near his body when it was turned over. They also state that deceased had turned and started to walk away when defendant shot him.

Dave Childs, the defendant, testified that at the time the difficulty took place I was feeding my team; after I went to my wagon I saw Franklin Williams, the deceased, and Mr. Smith come by, and they went up the road. As they went up, Franklin Williams said to me: "I want you to leave my children alone," and I replied: "I am not bothering your children." They went on up the road.

"The next time I saw him he was coming back down the road. While he was up the road, his little boy came down to the wagon. I saw him coming down the road, and told him his child had been there again for money, and he told me not to let him have it. I asked Mr. Smith if there was any law to keep Callie from being with her children at a public gathering like this, and he said that he did not know there was any. After I spoke to Mr. Smith mentioning my sister, Williams made towards me. He had something in his right hand down at his side, and I took it to be a knife, and I said to him "Back up; back up." He didn't just then. I reached over in my wagon after a pistol, and by that time he had his pistol drawn on me, and I shot just as quick as I could. I shot to save my life. I really believed if I did not shoot I would be killed. When I fired the first shot, his right side was towards me. As he walked up, he said: "If trouble is what you are expecting, you can get it." I started to get my pistol the moment I saw something in his hand.

"When I reached for my pistol, I thought he was coming on me with a knife. When I told him to back up, he backed up a step and threw his gun like this. I realized it was a pistol, and shot as quick as I could. I do not know where the first shot hit him, but it was somewhere about his right side. There was smoke in my face, and I could not tell. He careened down and threw his right side to me. It took not more than half a second to fire these shots. I knew at this time that he had made threats against me. I knew the threats he had made to Sam Vinson against me. He was a large, tall, rawboned man.

"The pistol I had was taken away...