Draper v. State

• Decision Date: 04 May 1936
• Docket Number: No. 3982.,3982.
• Citation: 94 S.W.2d 119
• Parties: DRAPER v. STATE.
• Court: Arkansas Supreme Court

94 S.W.2d 119

DRAPER v. STATE.

No. 3982.

Supreme Court of Arkansas.

May 4, 1936.

Rehearing Denied June 1, 1936.

Appeal from Circuit Court, Garland County; Earl Witt, Judge.

Ayliff Draper was convicted of murder in the first degree, and he appeals.

Affirmed.

H. A. Tucker and Calvin Sellers, both of Perryville, for appellant.

Carl E. Bailey, Atty. Gen., and Guy E. Williams and J. F. Koone, Asst. Attys. Gen., for the State.

HUMPHREYS, Justice.

Appellant was indicted, tried, and convicted in the circuit court of Garland county of murder in the first degree for killing Tom Menser in March, 1935, and the death penalty was imposed by the jury, from which judgment of conviction an appeal has been duly prosecuted to this court.

The chief witness for the state was Roy House, the accomplice of appellant, who testified, in substance, that he and appellant entered into an agreement on Friday night to rob Tom Menser, who resided on Highway 70, some 19 or 20 miles west of Hot Springs; that they stopped about a mile and a quarter before reaching Menser's home and built a fire, where they remained for some time; that they planned for appellant to grab and hold Menser when they entered the house while he (witness) would search and rob him; that, pursuant to the agreement, they drove the car beyond Menser's house about a quarter of a mile and parked it; that they walked back on the highway and entered the yard and walked around the house to the back door, and, when they made themselves known, Menser invited them in and asked both of them to take seats by the fire; that witness and Menser sat down, but that appellant walked around behind Menser and struck him with a wrench he had brought from the car and beat him to death; that, before entering the house, appellant put on some old gloves; that, after beating Menser to death, appellant ordered witness to search the dead man, which he did; that appellant then searched a trunk in the room and witness a table, where he found $8; that appellant found a watch and gun in or near a bed; that they counted the money and left the house and went around through the field and out to the car; that they drove on toward the Duncan's, where appellant was residing with his aunt; that, when near there, he (witness) got out and remained in the woods near the house until about 3 o'clock Saturday afternoon; that appellant met him Sunday and took the watch and gun and let witness keep the money; that he advised witness to leave the country, which he did, going to Columbus, Ga., where he had planned to go before; that, after about two months, his brother, Carl House, came to him in Georgia, and that they traveled through a number of states together until they reached Texas, where witness was arrested and brought back to Garland county; that about a week later his brother returned.

Carl House testified, in substance, that on Sunday after the killing, being worried about his brother and knowing that appellant and his brother were out together on Friday night, and suspecting that maybe they had killed and robbed Menser, of whose death he had heard, he went to appellant's house and made inquiry about his brother and whether they were implicated in the murder, and appellant admitted they were connected with it and that they had divided the loot, he keeping the gun and watch and Roy the money; that he showed him the watch and gun; that he recognized the watch as Menser's; that he (witness) afterwards told appellant that the officers had taken fingerprints in the home where Menser was killed and also told appellant they would get them, and appellant replied they would not get him, as he had on gloves at the time.

Many witnesses testified in the case. Two testified that they observed tracks of two persons going out into the field around Menser's house.

In order to decide the assignments of error argued and insisted upon for a reversal of the judgment, we do not deem it necessary to make a detailed statement of the testimony of the two witnesses named or any of the others. Suffice it to say the evidence of Roy House is ample to sustain the verdict of murder in the first degree if sufficiently corroborated. There is no question made that the testiny of...