Davidson v. State

• Decision Date: 13 October 1913
• Citation: 160 S.W. 385,109 Ark. 450
• Parties: DAVIDSON v. STATE
• Court: Arkansas Supreme Court

160 S.W. 385

109 Ark. 450

DAVIDSON v. STATE

Supreme Court of Arkansas

October 13, 1913

Appeal from Phillips Circuit Court; J. M. Jackson, Judge; affirmed.

STATEMENT BY THE COURT.

Appellant was indicted for murder in the first degree. He moved for a continuance upon the ground of the absence of Lee Bush, a material witness, setting out what he expected to prove by him, and stated that the witness was within the jurisdiction of the court and he believed could have him present at the next term. The motion being overruled, he filed a petition for a change of venue, supported by the affidavits of G. E Penn and N. T. Guthrie. The court examined the affiants, one of whom (Penn) stated that he was a physician, residing at Marvell, and had been since 1893; that he had a practice in the surrounding country for twenty miles, that he came to Helena often and traveled through the country to see his patients. That he had heard the case discussed a great deal and he did not believe the defendant could obtain a fair trial in the county.

The other witness stated that he had lived at Marvell for twenty years and that he had heard people talk all over the county and in the city of Helena, and had heard some say the defendant ought to be hanged on general principles; that he was of the opinion that the defendant could not get a fair and impartial trial in the county, and based his opinion on what he had heard people say. The motion for a change of venue was overruled.

It appears from the testimony that the deceased and his brother W. S. Eix, were operating a billiard hall in the rear end of a storehouse, in the front end of which there was a barber shop, in the town of Marvell. That they had a wheel in the room, with paddles to correspond with the numbers and which was called a raffle wheel, or wheel of fortune, and on the evening of the homicide they had raffled five turkeys, after which appellant came in with two turkeys and asked permission to use the wheel to raffle them off and the deceased consented and got him the paddles and the turkeys were raffled. The appellant then walked out of the front door and the deceased in gathering up the paddles missed four of them and asked his brother, W. S. Eix, if he knew where they were and upon his replying "No," he then went in search of Davidson, the appellant, and in a few minutes came back inside the front door with defendant following him, and Davidson said to him, "Did you think I was trying to steal your paddles and run away with them?" to which deceased replied, "No; I just wanted to locate them." Defendant thereupon made a motion to strike, or struck, deceased, and they clinched and fell to the floor the deceased on top. The deceased cried out, "Boys, give me a hand, he is pulling his gun." Deceased's brother tried to get appellant's hand, but failed, and appellant pulled the gun, pressed it to deceased's side and fired. That he was trying to prevent him from using the gun. That the deceased at the time the gun was fired had hold of appellant, pushing him down and trying to prevent his using the gun; that he wasn't doing anything except trying to pinion defendant's arms. That there was no blow struck. After the shot was fired, deceased got up and said, "I am shot," and started for the barber shop. Davidson got up, backed toward the door, presented his gun at deceased's brother, and said, with an oath, "I will get you next." The parties had not had any difficulty before and were on friendly terms to within a few moments of the shooting. A witness for the State, Posey, testified that he was present as the deceased passed out of the barber shop, was gone a few minutes and returned; that the appellant rushed in behind him and cursed and struck him and deceased whirled and caught Davidson by the right leg and threw him down and underneath, and his brother from the back said, "Come in here, he is pulling his gun." That he and the barber rushed over to them and Davidson was on the bottom; that he stooped to catch his hand and said, "Look out," and as soon as he saw the gun he ran behind the lattice work. The shot was fired and Eix ran through the house to the door, saying, "I am shot," and Davidson held W. S. Eix, the brother, up with the gun and said, "Now, God-damn you, I will get you next." Then the barber turned and said, "Bob, you have shot me," and Davidson said, "Forgive me; I never intended to shoot you."

Davidson was a stronger man than deceased, who didn't appear to be striking him. Another witness saw them clinch and fall and heard some one call for help, saying, "Come boys; he is trying to get his gun and shoot me." The bullet entered the left side between the eighth and ninth ribs and came out on the right side between the tenth and eleventh ribs, causing his death the next day.

Defendant testified that he borrowed the paddles to raffle the turkeys off and won the last turkey himself, which he raffled again and took four chances, keeping four of the paddles, representing them. He walked out of the billiard hall with the paddles in his pocket and deceased came up to him and said, "Where are those paddles?" and he asked deceased if he meant to say he tried to steal his paddles, and deceased said, "Yes, you have, and they are there in your pocket," and he pulled them out of his pocket and said, "There, take them," and deceased said, "No; you bring them back in the pool room where you got them," and turned around and went into the house and he followed him inside and said, "Here are your paddles." That he was four steps behind deceased and handed the paddles to him and said, "I never intended to steal your paddles," and deceased called him a liar and grabbed him by the leg and threw him down and deceased's brother run up and said, with an oath, "We have got you now," and grabbed him by the arm and ran his hand in his front pocket, and, "seeing there were three of them on me, I thought best to come out from under them." That he shot to save his life and only fired once and didn't try to shoot W. S. Eix, the brother of deceased, and didn't snap the pistol at him, and only told him not to come on him again. That he told the marshal that Eix started the trouble about the four paddles. He said he had had the pistol with which the shot was fired about a week and had been on friendly terms with the deceased until the night of the difficulty and the time of the shooting. That he offered the paddles to the deceased in the street and again in the barber shop. That when Will Eix and Posey came to where...