Kelley v. State

• Citation: 202 S.W. 49,133 Ark. 261
• Decision Date: 18 March 1918
• Docket Number: 238
• Parties: KELLEY v. STATE
• Court: Supreme Court of Arkansas

202 S.W. 49

133 Ark. 261

KELLEY v. STATE

No. 238

Supreme Court of Arkansas

March 18, 1918

Appeal from Jackson Circuit Court; Dene H. Coleman, Judge; affirmed.

Judgment affirmed.

S. D Campbell and F. R. Suits, for appellant; K. C. Spence, of Bloomfield, Mo., of counsel.

1. Any errors, however slight or harmless perhaps, under different circumstances, were prejudicial in this case. 80 Ark. 454; 89 Id. 556; 91 Id. 555; 105 Id. 205. Incompetent testimony was admitted. Elsie Beacham testified that she pointed out Mims to Sanderson as the person who handed Kelley the gun. This was a subsequent event and no part of the res gestae. 66 Ark. 264; 69 Id. 558; 73 Id. 152; 78 Id. 381; 82 Id. 58; 85 Id. 300; 88 Id. 451, 579; 100 Id 269; 105 Id. 247; 123 Id. 101.

2. Dr O. E. Jones' testimony as to a bullet going "wild," etc., was incompetent. 55 Ark. 593; 62 Id. 74, 496; 66 Id. 110.

3. It was error to admit Seligman's testimony as to what he heard. The person was not identified; it was indefinite and no foundation was laid.

4. Forest Abernathy's testimony as to what he heard defendant say to some woman was too remote, indefinite and uncertain. 82 Ark. 58; 83 Id. 268; 123 Id. 109.

5. Gallagher's testimony and the transcript of Mrs. Hays' shorthand notes was incompetent and prejudicial. No foundation was laid. 84 Ark. 178; 63 Id. 130; 91 Id. 491. Defendant had no counsel present and no opportunity to cross-examine. 60 Ark. 402.

6. No foundation was laid for Herman Richard's testimony.

7. The prosecuting attorney was allowed to ask defendant questions as to former offenses. 53 Ark. 392, etc.

8. Ben Sanderson's testimony as to the knife was not competent, and the court erred in its statement that Mabel Sherman had identified the knife. No foundation was laid for this testimony and the court's statement was prejudicial.

9. The court erred in excluding competent testimony.

10. It was error to give instruction No. 17. Also in refusing defendants No. 3. Also in allowing the stenographer to read notes as to the testimony of Forest Abernathy.

11. There was error in receiving the verdict of the jury in the form it was, and the verdict is not supported by the evidence nor does it support a death sentence. They should have fixed the punishment at death or life imprisonment. Act 187, Acts 1915; 57 Ark. 560; 113 F. 991; 117 Am. St. 737; 176 S.W. 980; 53 Miss. 428.

12. Incompetent hearsay evidence was admitted. 78 Ark. 77, and others.

John D. Arbuckle, Attorney General, and T. W. Campbell, Assistant, for appellee.

1. Elsie Beacham's testimony was neither incompetent nor prejudicial. The facts were otherwise proven. 58 Ark. 374; 76 Id. 276; 84 Id. 16; 88 Id. 135; 91 Id. 576; 96 Id. 582; 103 Id. 314; 100 Id. 149; 79 Id. 453.

2. Dr. Jones' testimony competent. 25 Ark. 380; 14 Id. 438; 48 Id. 177.

3. David Seligman's testimony was competent. 177 S.W. 917.

4. There was no error in admitting Forest Abernathy's testimony. 130 Ark. 101.

5. Gallagher's testimony as transcribed by Mrs. Hays was properly admitted. The proper foundation was laid. 90 Ark. 514; 29 Id. 17; 58 Id. 353; 33 Id. 539; 60 Id. 400. Nor was the testimony prejudicial. 58 Ark. 374; 73 Id. 407; 76 Id. 276; 66 Id. 264; 77 Id. 453; 84 Id. 16; 88 Id. 135; 103 Id. 87.

6. The transcript of testimony of Herman Richards was properly admitted. 74 Ark. 72; 83 Id. 223; 80 Id. 65.

7. It was not prejudicial error to permit the prosecuting attorney to ask as to other offenses. 100 Ark. 304; 53 Id. 387; 55 Ark. Law Rep. 576.

8. No error committed in admitting Ben Sanderson's testimony in rebuttal. It was competent.

9. No error in excluding testimony. The questions were improper. The matters were fully developed elsewhere.

10. Instruction No. 17 was not error. 88 Ark. 447; 95 Id. 409.

11. There was no error in refusing No. 3, as No. 2 was given. 103 Ark. 352; 104 Id. 417.

12. The verdict was in proper form and death sentence properly imposed. Acts 1915, 774. The jury had the option to fix the punishment at life imprisonment, but did not, and the court properly sentenced him to death under the law. The jury were properly instructed as to the punishment, and they elected not to be lenient.

OPINION

HUMPHREYS, J.

Appellant, Chess Kelley, was indicted, tried and convicted of murder in the first degree, for killing H. A. Harmon, between 1 and 2 o'clock A. M., June 9, 1917, at Elsie Beacham's home in the red light district in Newport, Arkansas. From the judgment and sentence of death an appeal has been lodged in this court.

The substance of the State's evidence leading up to and immediately surrounding the killing was as follows: Appellant went in company with Zeph Mims and Mabel Sherman to the home of Elsie Beacham, with whom he was infatuated, between 1 and 2 o'clock A. M., on June 9, 1917. The house contained three rooms in a row. The door to the front room was fastened with a button and had a chair against it. The middle door or door to the bedroom was closed. A rocking chair with Elsie Beacham's dress on it was near the bed. A light burning low was on a dresser at the foot of the bed. Harmon's clothes were in a drawer to the dresser and his knife, keys, etc., were in the pockets. H. A. Harmon, an automobile mechanic, and Elsie Beacham were sleeping together in the bed. The front door was forced open and Chess Kelley, followed by Zeph Mims and Mabel Sherman, opened the middle door and entered the bedroom. Kelley said to Mims, "Hand me the gun, I am going to kill the son-of-a-bitch." Mims handed Kelley the gun. Harmon was sitting on the side of the bed but got up and they (Kelley and Harmon) went together and were scuffling close to the bed. Harmon was unarmed. Kelley fired five shots. Four shots took effect and one ranged up and went through the wall above Elsie Beacham's head. Four balls entered Harmon's body in front and two of the wounds were powder-burned, the other two not. There were three exit wounds. Immediately after the shooting Harmon fell across the bed. Kelley threw the empty shells on the floor and said he had bought the gun for $ 22 to kill the son-of-a-bitch, Elsie Beacham and himself. A physician was called, who administered to Harmon but he died at 8 o'clock A. M. from the gunshot wounds.

The substance of appellant's evidence leading up to and immediately surrounding the killing was as follows: Appellant had known Elsie Beacham, Mabel Sherman and Zeph Mims for several weeks. He had been intimate with Elsie Beacham but was not jealous of her. He returned from Missouri, where he had been on a visit, on the evening before the tragedy occurred. After supper he spent the evening on the streets, in a billiard hall and at the restaurant. During the evening he had let Lawrence have his pistol and after getting it back from him to take home he left the restaurant in company with Mims, who had accepted an invitation to spend the night with him. They got to appellant's room about 12 o'clock but decided to go down and get appellant's laundry from Mabel Sherman before going to bed. They found her sitting up with a sick child, and, after talking about an hour, went with her to see if Elsie Beacham would rent her a room. Elsie had recently rented the house. Appellant had his pistol in his bosom but did not know H. A. Harmon was bedding with Elsie and did not go there to kill him. When they got to Elsie's house appellant knocked three times on the door and called Elsie, and knocked again, and either Elsie or Harmon said, "Come in, the door is open." Appellant entered with Mims and Mabel Sherman. He knocked at the middle door, pushed it open and all entered in the middle room. Elsie and Harmon were sitting on the bed. Harmon said, "What does this mean?" Appellant said, "Not a thing, Buddy." Elsie said, "That is that G d d d long, slim son-of-a-bitch man I used to have; get up and kill him." Harmon said, "Beat it or I'll kill you." Harmon grabbed a knife out of the chair and started toward appellant, who jumped away from him and told him to stop, but he didn't. Appellant jumped away from him a second time, shot over his head and told him to stop. Harmon started at him again and appellant shot him. The first shot was fired when Harmon was approaching appellant with a knife. Harmon made three stabs at appellant when he caught Harmon's wrist and Harmon grabbed the gun and four shots were fired while they were scuffling. They fell on the bed together and appellant called to Elsie to take the knife as he did not want to kill Harmon unless he had to. Elsie refused and Mabel took the knife out of Harmon's hand. Appellant testified he believed it was necessary to kill Harmon in order to save himself from great bodily harm or death. He denied making any statement as to why he bought the pistol or concerning his love for Elsie, but said Elsie was crying and threatened to buy a gun and kill him, Mims and herself. After turning Harmon over, at his request, he told Elsie and Mabel to get a doctor and he took his pistol to a woman by the name of Allie, and surrendered to Turbin and Sandmon.

Having stated the case in this general way to bring the opinion within reasonable space, we will now announce our conclusions upon the assignments of error insisted upon by appellant for reversal of the judgment.

Elsie Beacham was permitted to testify over the objection of appellant, that immediately after the killing she pointed out Zeph Mims to the night marshal as the man who handed the gun to Kelley. Elsie Beacham testified that Kelley asked Mims for the gun to kill Harmon and that Mims handed him the gun. If this testimony were true it would tend to show that Kelley had gone there to kill Harmon. This was positive evidence, and it was either true or not true. The fact...