Ferguson v. State

• Decision Date: 25 October 1909
• Citation: 122 S.W. 236
• Parties: FERGUSON v. STATE.
• Court: Arkansas Supreme Court

Page 236

122 S.W. 236

FERGUSON v. STATE.

Supreme Court of Arkansas.

October 25, 1909.

Appeal from Circuit Court, Howard County; James S. Steel, Judge.

Butler Ferguson was convicted of murder in the first degree, and he appeals. Affirmed.

J. D. Conway and W. P. Feazel, for appellant. Hal L. Norwood, Atty. Gen., C. A. Cunningham, Asst. Atty. Gen. (J. S. Lake and Geo. M. Chapline, of counsel), for the State.

FRAUENTHAL, J.

The defendant, Butler Ferguson, was indicted by the grand jury of Howard county charged with the crime of murder in the first degree by killing Pet Henderson on the 30th day of May, 1909. Upon his trial he was convicted by a petit jury of that county of the crime of murder in the first degree; and from the judgment rendered upon that verdict he prosecutes this appeal.

The evidence on the part of the state establishes the following facts: The deceased, Pet Henderson, was a young man about 24 years old. On the afternoon of Sunday, May 30th, in company with two young men of about the same age, young Henderson went to a creek a short distance south from the town of Center Point for the purpose of swimming. After going along the creek for some distance, they decided they would not go in swimming because the water was too muddy. They then proceeded across a field towards the public road, and young Henderson was somewhat in the lead, and got to the road in advance of his companions. In this road Henderson met two small negro boys, whom he began chasing, and the negro boys became frightened and ran down the road for a distance to a negro church house, before which a crowd of colored people were lingering. In the crowd were Grant Whitmore and Tap Clardy, and the defendant was just across the road and within hearing distance from the crowd. To this crowd the negro boys ran, and told them about being chased by the deceased. In a short time after this the defendant, Grant Whitmore and Tap Clardy went up this road from the negro church towards where the deceased had chased the negro boys. In the meanwhile young Henderson, after chasing the negro boys, had returned to his two companions, who by that time had come out of the field into the road; and the three young men sat down on the ground next the side of the road, and engaged in friendly conversation. When the defendant, in company with the two parties who had proceeded from the negro church with him, got to a point in the road about 50 or 60 yards from where young Henderson and his two companions were seated next the road, the defendant said: "There sits that God damn Pet Henderson, the God damn son of a bitch. If he does anything to me, I will fix him." Henderson arose from where he was seated, and walked in the direction of the defendant, and the defendant continued along the road towards the deceased. Henderson was unarmed, and his hands were extended down by his side. When he came within a few steps of defendant Henderson spoke to defendant, and said: "Did you call me a God damn son of a bitch?" The defendant immediately drew his pistol, and began shooting at Henderson, and saying "I did." He shot three times in rapid succession, and, as Henderson was falling, he shot twice more; and then the defendant whirled around, and ran back towards the negro church. When Henderson walked towards the defendant and spoke to him, he had nothing in his hands, and at the time defendant shot him he was a few steps from the defendant, and was making no demonstration of any kind. There was testimony showing that the deceased and his two companions had drank some diluted alcohol a few hours before the killing, but the young men testified that it was not sufficient to affect them, and that they were not affected thereby. The defendant and his two friends testified that, when the deceased approached, he had a stick in his hand, and struck defendant with it, and that he was backing when he pulled his pistol and shot the deceased, firing five times. There was testimony showing that the defendant and his two friends did not state that the deceased had a stick or had struck him with a stick when they first narrated the circumstances of the killing; and there was other testimony contradicting the defendant and his two friends in their statements made upon the trial as to the manner and circumstances of the killing. But the two young companions of the deceased, who at the time of the killing were only a few steps distant, testified that the deceased did not have a stick, and that when he was shot his hands were empty and extended by his side, and that the deceased was making no demonstration when he was shot. Before the jury these witnesses appeared, and the jury were the judges of their credibility. The defendant and his two friends gave their testimony before the jury, and, in the light of their demeanor on the stand and in the light of all the evidence in the case, the jury were the judges to determine whether their statements were true, or only made to shield the defendant from a punishment for the perpetration of a great crime. It was peculiarly the province of the jury to determine the facts of this case; and it has been uniformly held by this court, that, if there is substantial evidence to sustain the findings of the jury as to questions of fact, its verdict will not be disturbed. Hubbard v. State, 10 Ark. 378; Chitwood v. State, 18 Ark. 453; Floyd v. State, 12 Ark. 43, 54 Am. Dec. 250; Doghead Glory v. State, 13 Ark. 236; Dixon v. State, 22 Ark. 213; Harris v. State, 31 Ark. 196; McCoy v. State, 46 Ark. 141; Holt v. State, 47 Ark. 196, 1 S. W. 61; Williams v. State, 50 Ark. 511, 9 S. W. 5. We have carefully examined the testimony in this case, and find that there is ample evidence to sustain the jury in finding the facts of the case to be as they were detailed by the state's witnesses; and it is upon these findings that the verdict of murder in the first degree must necessarily be based.

It is urged by learned counsel for the defendant that the evidence on the part of the state is not sufficient to sustain the verdict of the jury convicting the defendant of murder in the first degree. The statutes of the state provide: Kirby's Dig. § 1766: "All murder which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of willful, deliberate, malicious and premeditated killing, or which shall be committed in the perpetration of or in the attempt to perpetrate arson, rape, robbery, burglary or larceny shall be decreed murder in the first degree." Section 1767: "All other murder shall be deemed murder in the second degree." When the fact of death alone is proved, the presumption is that the crime is murder in the second degree, and, before it can be determined that the crime is murder in the first degree, it is incumbent on the prosecution to prove further by evidence that the killing was done with premeditation and deliberation. The premeditation cannot be inferred from the fact of death, but there must be evidence of a prior intention to do the act of killing in question. But it has been universally held that it is not necessary that this intention be conceived for any particular period of time. As is said by Judge Battle in the case of Green v. State, 51 Ark. 189, 10 S. W. 260: "In order to constitute the killing of a human being murder in the first degree, there...