Hearne v. State

• Decision Date: 20 December 1915
• Docket Number: 69
• Parties: HEARNE v. STATE
• Court: Arkansas Supreme Court

181 S.W. 291

121 Ark. 460

HEARNE v. STATE

No. 69

Supreme Court of Arkansas

December 20, 1915

[Copyrighted Material Omitted]

Appeal from Mississippi Circuit Court; W. J. Driver, Judge affirmed.

STATEMENT BY THE COURT.

Sam Mauldin, the sheriff of Mississippi County was shot to death in the early morning on July 30, 1915, while raiding the joint owned by Andy Crum, on Island No. 37, in the Mississippi river, for the purpose of arresting certain offenders for whom he held warrants.

Andy Crum, a white man owned the place, which was conducted for the patronage of negroes principally and consisted of a gambling house operated by Burt Spring, a negro, a saloon or blind tiger of which Dave Hearne, appellant, was in charge--and a "honky-tonk."

When Crum was away, as he generally was, Mr. Moore was in charge and in his absence Dave Hearne was in control.

The officer and his posse surrounded the place on this morning and Doug Chapman, and an officer of the militia, went to the front of the gambling house where Burt Spring was seen with the door partly opened and his head out, apparently having been disturbed and trying to ascertain the cause of it. Chapman drew his gun and said "come out with your hands up." Spring immediately dodged back and closed the door and Chapman shot at him and shot again as the door was closed and Spring commenced to shoot and a woman and probably Spring began to holloa, "Oh, Mr. Dave, Mr. Dave!" Chapman or the militia officer then put forward Piggy Lewis, a negro to force the door and the shooting continued and Lewis called to Spring as he was trying to break the door in, "Don't shoot these white folks and officers and soldiers, don't you make fire or you are a ruined man." The door was forced open and the shooting continued and the sheriff who had come round by this time towards the door, upon a shot being fired from within the house, returned the shot, and another shot was fired from within, which struck him and after shooting again he retired fifteen or twenty feet under the arbor and laid down across a crap table, saying, "Curt, he has killed me."

Dave Hearne opened the door of his room after the shooting began and started out in his night clothes when one of the posse presented a double barrel shot gun and arrested him. He had no weapon in his hand when he came out, but two or three pistols, a couple of shot guns and a rifle all loaded were found in his room within easy reach of his bed. When the dying sheriff was brought up to where he stood, he laughed and the officers had trouble in preventing violence to him from some members of the posse. Burt Spring was killed in the raid and the houses all burned.

Several witnesses testified about conversations and statements made by Andy Crum, the owner, and those in charge of the place, relative to what should be done in resisting the Arkansas officers if they attempted to arrest them for violation of the law and take them from the island.

A witness testified that he had heard Cham Moore, Andy Crum and Burt Spring often in front of the saloon talking and saying that they were not going to be arrested if the officers came after them, that Dave Hearne was where he could hear these remarks and had said that he did not intend going. This witness slept one night in the room with Dave Hearne, at his request, and said when he laid down upon his pallet "Mr. Hearne told me that I had better take the pump gun or the Winchester over there with me and also that if anybody happened to knock on the door to wake him up before I opened the door or started to shooting and he also told me 'that if there ain't but one or two we ain't going no how.'" This was a month or six weeks before the officers made the raid. He also stated Burt Spring ran the gambling department and had said he did not intend going to Arkansas and that Mr. Hearne told me if I went before the grand jury that I had better not tell that he had anything to do with selling whiskey. "Mr. Hearne sold whiskey over there."

"When Mr. Moore was away, Mr. Dave Hearne was boss and Mr. Moore left on Monday or Tuesday before the raid." This witness had heard the proprietors and employees talking frequently after the question of the jurisdiction began to be discussed. Said the day they were looking for the officers, that he had heard Crum give orders when he was there, about shooting the officers if they came. In his absence Cham Moore gave orders, Cham said to stay with Mr. Dave.

"Q. Was he talking about Dave Hearne?"

"A. Yes, sir. He said nobody would know what happened, stay with Mr. Dave and when Mr. Dave was there he would give orders too. Mr. Dave would give orders just the same as the rest of them would about the officers. He would tell us to stay with him, if anything happened not to leave him or anything like that."

Silas Taylor testified that he had heard Crum talk about the proposed raid by the Arkansas officers and that he meant to kill them if they came to raid his place and that Burt Spring agreed with him and said he would fight and help to kill him. Burt said he was not going to be arrested.

Several witnesses stated that Andy Crum said he was not going to be arrested by Arkansas officers.

Cham Moore stated that it would take more than four or five men to arrest him, that if he was arrested, the militia would have to do it.

Dave Hearne stated that it would take more than one man to arrest him, that no one man could do it.

Another witness stated that he saw Dave Hearne with a pistol on his shoulder in a scabbard and two behind the counter. At this time he had gone in to buy some beer and when the boy started out with it, he was asked "who is it for" and replied "For the sheriff out here." He reached over and caught the bottles by the neck and the boy said, "They are Tennessee men over here," and he said, "All right, then."

Dillahunty testified that he had gone into the place for a bottle of beer and Andy Crum and a negro were there and the negro waited on him and after drinking a bottle he stood a few minutes and asked Crum to have a bottle with him and Crum took his hand off of the gun and drank beer with him. "While I was there I think it was a little while after the raid had been made on 34 here, and I got to kinder' joking him and told him first and last they were going to come over and get him and he remarked there were not enough officers to take him off the island, there was not enough officers could get on the island to take him off."

Archie Holt testified that he had a conversation with Dave Hearne in Andy Crum's place about the officers in which Dave said "What it would take to keep the officers from taking him, he happened to have," at the time throwing back his coat and showing a big pistol. Several witnesses for the defendant including officials and former officials of Tipton County, Tenn. testified that Island No. 37 had always been considered in Tennessee, that jurors had been summoned from there, process of the court executed on the island by the sheriff, the taxes paid to the officials of Tipton County and marriages performed by the officials of that county and justices of the peace elected, and that it had always been considered Tennessee territory. Some of the older witnesses stated that since their earliest recollection, Tennessee had exercised exclusive jurisdiction over the island, and that they had never heard of any claim of jurisdiction thereof by the State of Arkansas.

Jno. Lovewell, ex-sheriff of Mississippi County, who had also been constable and assessor, said he was acquainted with Island No. 37 in the Mississippi river and never undertook, as constable, assessor or sheriff of Arkansas, to exercise any jurisdiction over any portion of it, for the reason that it was conceded to be in the State of Tennessee; that no part of the island was ever assessed for taxes by Mississippi County in the State of Arkansas while he was in office.

Several civil engineers testified, one or two of whom had made maps of the island and J. A. Green, introduced a photographic copy of an original map made by him and stated that he had established the State line across the island between the Arkansas and Tennessee shore; that he located the original center of the Mississippi river and found that about twenty acres of the Osborne land was in Tennessee, that the proper officials of Tennessee took possession of that and did not take possession of that part of the tract on the Arkansas side. That the Tennessee portion was unimproved.

The Crum place was shown by several witnesses, civil engineers among the number, to be 164 feet within section 23, township 10 north, range 9 east, Mississippi County, Ark. Dwight Morris who made this statement said the plat had been made from government notes.

Curtis Little testified he was clerk of the court of Mississippi County and had been county surveyor for six years and that surveying had been his business for fifteen years. That he made a survey of the island from notes from the plat or photographic copy of the original surveys furnished by the land commissioner's office at Washington, the book having attached to it, the certificate of the surveyor general. He also stated that some of the records of the county showed that the fractional northeast quarter and the fractional northwest quarter of said section had been assessed for taxes in Mississippi County; that the Arkansas part of the northeast quarter was fifty-seven acres and that the Andy Crum joint was on this quarter and included in the fifty-seven acres. This is in Mississippi County. This witness was with sheriff Mauldin, the night of the raid and said we were expecting trouble. I was assigned to the "honky-tonk." In going there Mr. Chapman and Blackwood ran to the front of the "...