Frame v. State

• Decision Date: 07 January 1905
• Citation: Frame v. State, 73 Ark. 501, 84 S.W. 711 (Ark. 1905)
• Parties: FRAME v. STATE
• Court: Arkansas Supreme Court

84 S.W. 711

73 Ark. 501

FRAME v. STATE

Supreme Court of Arkansas

January 7, 1905

Appeal from Chicot Circuit Court, ZACHARIAH T. WOOD, Judge.

Affirmed.

STATEMENT BY THE COURT.

At the March term, 1904, of the Chicot Circuit Court, the grand jury returned against appellant an indictment, charging that he in the county of Chicot, and State of Arkansas, on the 11th day of March, 1904, did willfully, feloniously, and of his malice aforethought, and with deliberation and premeditation kill and murder John Palmer, by shooting him with a pistol against the peace and dignity of the State of Arkansas.At the same term, he was tried before a jury, and convicted of murder in the second degree; and sentenced to seven years in the penitentiary.

Frame killed Palmer by shooting him twice with a pistol.The medical expert who examined the body of Palmer testified that one shot entered Palmer's breast slightly to the left about five inches below the collar bone and ranged inward and slightly downward, the other shot entered the stomach, and ranged upward and out.The wound about the left nipple went straight.The cuticle and muscle under it coincided exactly."If Palmer had had his arm raised as stated, the skin over the wound would not have fitted perfectly around the hole made by the shot; but when his arm dropped in a natural position, the skin would have extended over to the edge of the wound.If the wound was in the left breast, beyond the left nipple, I think the raising of the right arm would slightly affect the muscle and cuticle there.

The account of the shooting as given by Fletcher Hougue, a witness for the State, is as follows: "I run a barber shop near where John Palmer was killed.On the night of the killing, Palmer, sometime before he was killed, was in my shop.I was near the little shop just north of the negro restaurant when the shooting took place; was on my way back to the barber shop.When the first shot was fired, which was the first I knew of the difficulty, I heard Palmer cry out "Oh, you have killed me!"Then the second shot was fired, and I started on a run to where the shooting took place.When I got there, Mr. Frame was standing on the walk, south of Gile's store.I ran up to him, put my hand on his shoulder, and asked him what was the matter.He said: "That fellow tried to cut me with a knife, and I shot him."I then turned back to the man who was shot, and found him to be John M. Palmer.He was still alive.About that time several others came up and some one brought a lantern.Zem Stelle and Bill Smith were there.We took the body up, and laid it on the gallery.Either Zem Stells or Bill Simth picked up a knife from where Palmer was lying.I recognize this as the knife.Some one marked it with these marks.I was the first man to get to Frame after the shooting.No one there but Bill Frame.Soon afterwards I saw Smith, and I afterwards saw Zem Stelle and Abner Gaines.Abner Gaines was the marshal, and in a short time there was a big crowd there.I could not remember who all was there.I stayed there until after we put him on the gallery, and probably went back into my barber shop; but I know I was the first man there."

The defendant himself testified as follows: "I have known John M. Palmer for some time.Some time before nine o'clock, the night of the difficulty, I went over to my shop, and closed it.Then I went around to Bailey's saloon, and took a drink.I then went to Matthews' saloon, where I told Lem Jackson I thought I was going to Louisiana.He said, 'Let's split a bottle of beer,' which we did.I then walked out, crossed over the street, passed in front of Gaines's Hardware Co., going toward the saloon we called 'Louisiana.'Just before I got to Giles's corner, I saw Mr. Palmer coming across from Rosenzweig's corner.I met him right at Giles's corner.He walked a little past me, then stopped me, saying, 'Hold on there; I want to see you.'I took one more step, and he called the second time.I turned around, and he asked me if I was going to pay that account.I said, 'No.'He said, 'It's a damned rascally trick in you, if you don't; you stood good for the Brown account.'I said: 'You're a damned liar!'Just at this time he drew his hand out of his pocket with his knife open, and made at me, as if to cut me, and I drew my pistol out, and shot him quick, and then shot him again, as quick as I could fire.I fired these shots because he was coming on me with his knife drawn to cut me, and I did it in my own self-defense, believing he was going to kill me, as he said he would do.I did not fire until he drew his knife and started to me."

Another witness, John White, for appellant, testifies as to the immediate transaction as follows: "Just as I passed the barber shop, I heard some talk between two persons standing on the sidewalk in front of Giles's store, and about that time a shot was fired.My attention was first attracted by the brash talking, and I looked in that direction, and I saw one man with a knife in his hand raised in an attitude to strike, and I halted.A shot was fired, and I had moved on a foot or two further.If the shot had missed the man, it would have struck me.And then another shot was fired.It was the man that was shot who had the knife in his hand.The two parties were five or six feet apart.Mr. Frame was standing at the corner of Giles's store, about where the walk that runs from the store down to the depot joins the walk that runs runs north, in front of Giles's store.The man that was shot was Mr. Palmer, who was standing about in front of the door of Giles's store, near the edge of the sidewalk, next to the ditch.I was walking in the middle of the street.There was a light on Mr. Rosenzweig's corner, and his store was open and lighted up.I could see plainly.I did not run when the shorts were fired.After Mr. Palmer fell I walked along in the street around Giles's corner, and on the sidewalk back of where Mr. Frame was standing.A big crowd gathered pretty quick."

William Smith testified: "I am a railroad engineer on the Mississippi River, Hamburg & Western Railroad.I know the defendant, and knew the deceased.On the night of the killing I went into Hougue's barber shop to get a shave.Several parties were ahead of me, and I concluded to go back home.As I was in the act of stepping from the porch to the sidewalk, I heard a pistol shot, some twelve or fifteen feet away, at the corner of Giles's store.I heard an exclamation, 'O my God.' or something, and saw a man falling back.About that time the second shot was fired.I immediately walked up to Mr. Frame.He was standing on the sidewalk, and had the smoking pistol in his hand.I asked him what was the matter.He said: 'That man tried to cut me, and I shot him.'He turned as if to walk off.I told him to hold on, and he stayed until Abner Gaines came and arrested him.About this time Zem Stelle and some others came.One of them had a lantern.We looked for the knife, and Zem Stelle and I saw it about 'the same time, lying somewhere about the calf of Palmer's leg.Stelle picked it up, and put some marks on the handle to identify it.I also put some marks on it.This is the knife.I know it from the marks.I was the first man to Mr. Frame after the shooting.There was no one else there that I saw.The place along there was light, and I could see Mr. Frame.There was a light over in front of Rosenzweig's store, an acetylene gas lamp that was shining across the street.You could see from Rosenzweig's clear across to where they were standing.The barber shop was lighted, and you could see out into the street, and I think there was a dim light in Giles's store.I helped lay Palmer's body upon the gallery.From the time the last shot was fired, I stood between the body of Palmer and Mr. Frame.The big blade of the knife was open when Mr. Stelle picked it up.I was from ten to twelve feet from Palmer when he was shot.I did not see him or Mr. Frame before the first shot was fired.I had my hand on the post, the third post from the end of the gallery, and was looking down, preparatory to stepping off the porch to the sidewalk, when the first shot was fired.I did not see the flash of the pistol.When Palmer cried out, I looked up, and did not see the flash the second shot.I went immediately to Mr. Frame, and put my hand on his shoulder.I heard nothing until the shot was fired.If there had been any loud talking between Frame and Palmer, I could have heard it.I had had no difficulty with Palmer previous to the killing."

Other witnesses testify for appellant as to the open knife being found where the deceased was lying, and identify the knife as the knife of deceased.The sheriff testified to finding a small pearl-handled knife in the pocket of deceased.And witnesses on behalf of the State, in rebuttal, identified the small knife taken from Palmer's pocket by the sheriff as Palmer's knife, and they could not identify the other as his knife.There was testimony tending to show that Palmer had two pocket knives, and also testimony tending to show the contrary.There was testimony on behalf of the State to impeach the character of appellant's witness, White, who claims to have seen the deceased with his knife drawn to cut defendant, and also testimony tending to show that White was not there.

In rebuttal on behalf of the State, J. W. Tharpe testified "John Palmer was conducting a butcher business at Lake Village.His lower meat shop was next to the shop of defendant, William Frame.On the evening Palmer was killed, I was in my shop, and saw defendant walking on the gallery in front of the shop.He passed the door several times and looked in.After I closed up my shop, I came out, and saw the defendant standing in front of...