McAlister v. State

• Citation: 139 S.W. 684,99 Ark. 604
• Parties: MCALISTER v. STATE
• Decision Date: 10 July 1911
• Court: Supreme Court of Arkansas

139 S.W. 684

99 Ark. 604

MCALISTER v. STATE

Supreme Court of Arkansas

July 10, 1911

[Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted]

Appeal from St. Francis Circuit Court; Hance N. Hutton, Judge; reversed.

STATEMENT BY THE COURT.

Appellant was indicted and convicted of the crime of murder in the first degree. The indictment in proper form charged him with the murder of B. F. Kirby. Kirby was assassinated about sundown on the evening of Friday, August 19, 1910, by some one lying in ambush. He was shot in the back with a load of buckshot while returning to his home from the town of Marianna, in Lee County, Arkansas. He was on what is called the Skidmore road, and was at the northwest corner of the fence around what is called the Westwood plantation, at a distance of about nine miles from the town of Marianna. Kirby had been a candidate for sheriff of Lee County in the primary held in March, 1910, and during that time appellant was an active and ardent supporter of his opponent. On account of some statement or remarks which Kirby understood McAlister had made concerning him during the campaign, Kirby about the month of May, 1910, met McAlister in a restaurant in Marianna and cursed and abused him severely. Subsequent to that time McAlister stated to a witness named Taynter, in substance that he did not want him to have anything to do with Kirby and that on account of his friendship for Kirby he (Taynter) would have to move off the Soudan plantation of which McAlister was manager. McAlister said "that Kirby wants Soudan, and he is not going to get it," and that "there was going to be a killing, and that he was not going to be the one killed." Some time during the same summer Mc-Alister, in a conversation in the presence of one T. C. Conner, a witness, stated that he and Kirby were not on good terms, and that if Kirby didn't let his business alone there would be some hereafter about it. McAlister's language in this conversation was very vile. About two weeks before the killing he told W. M. Hill, a witness, that he had heard that Kirby or some of his friends were saying that he (McAlister) was going to be fired from Soudan, and further said that it was true that Mr. Kirby gave him a cursing, but that he was not afraid of him or anybody else, and that if anybody was killed it would not be Mc-Alister. On the morning of the 19th of August, 1910, Kirby was in Marianna. A witness named Gillenwater met McAlister and Al Sullivan (who is jointly indicted with appellant) at the corner of Shaul's store in Marianna, and at that time Kirby was standing across the street some two or three doors below the opposite corner. Kirby was in his shirt sleeves, and went north to Schlichtl's hardware store, and in a moment reappeared upon the street with his coat on walking towards the direction of McAlister, Gillen-water and Sullivan. Before Kirby reached them, McAlister said to Sullivan: "I have to go by the courthouse. Will you go with me?" And Sullivan answering in the affirmative, they walked across the block to the steps that go up into the courthouse yard, but didn't go in the courthouse, but turned and went down to Friar's livery stable, and in a few moments got in a surrey and drove out of town in the direction of the Soudan plantation. They arrived at the Soudan plantation about 11 o'clock, and McAlister called to the house to have his dinner prepared at once, and called to his hostler to saddle his and Mr. Sullivan's horses. About 12 o'clock or shortly after, they rode on down towards the Westwood plantation, each armed with a shotgun. They arrived at Handy Price's house near the southwest corner of Westwood field about 1 o'clock accompanied by Bob Williams, who had no gun, but was armed with a pistol. They rode in the field gate near Price's house, got some water and continued on through the field for about 150 yards, after which no witnesses saw them until after the assassination. Kirby left Marianna about 5 o'clock in the afternoon, and passed the house of John Giles, a witness, which was about a mile from the corner of the field, about sundown. About 10 minutes after Kirby passed, a gunshot was heard by Mr. Giles and also by witnesses, Handy Price and his wife. The gun shot was at the corner of the Westwood field. When the shot was fired, Price and his wife heard a horse running a little distance, and then it stopped, and in a moment came on and passed in front of their house. It was. Kirby's mare, riderless. About 10 minutes after the shot McAlister and Sullivan rode out through the field gate which they had entered, riding at a very rapid gait, and went through the woods road towards the Soudan plantation. They both had shotguns. Kirby lived on the St. Francis River at the northeast corner of the Westwood field about one mile from the point of killing. Mrs. Kirby was at home when Kirby's mare came trotting up to the gate about dusk. She put a negro named Nesbitt on the mare, and started him back in the direction the mare had come, she herself following on foot. They found Kirby lying on his face in the road about 100 yards from the corner of the Westwood field. She called for Handy Price, who lived nearby, and called for Mr. Lindsey and Mr. Giles. They put the body of Kirby in a wagon and carried it home. Then Mr. Giles went to Marianna to inform the public. He arrived at Marianna about 11 o'clock. Kirby's friends 'phoned to Forrest City immediately, and had some bloodhounds started to Marianna. They arrived the next morning about daylight. The bloodhounds were taken by their owner, accompanied by the sheriff and deputies and a deputy constable, to the scene of the killing. They arrived on the ground between 7 and 8 o'clock in the morning. The officers were under the impression that Kirby had been shot in the left temple, so they went to the spot where the body was found and put the dogs on the north side of the road, the direction from which they supposed the shot was fired. The dogs proceeded to search, but found no trail until finally they walked down to a large oak tree which stands on the south side of the road about 30 steps from the corner of the Westwood field. Here they struck a trail, and followed it to a large log which lay about 30 feet south from the corner of the Westwood field and against a wire fence. When they reached this log, they began to bark and pull on the lines. Behind this log was evidence of where some person or persons had remained for some time; the weeds and grass were trampled down and withered. The dogs continued south along the wire fence for about 30 yards, when they passed through the wire fence into the woods. All the west side of the Westwood place is thick woods with cane and underbrush for a distance of a hundred yards or more from the fence out east to where the quarter line begins. When the dogs passed through the wire fence, they ran to a place where a horse had been hitched. The grass and weeds were pawed entirely off the ground, and the cane as far as a horse could reach was all eaten and bitten down, indicating that a horse had been there for a considerable time. At this place the chain by which the dogs were leading their owner caught in a horseshoe which had been recently shed. It was the left hind shoe. Four nails on the inside of the hoof had been pulled through, one of the nails on the outside was entirely missing from the shoe, one had been pulled through the hoof, and one indicated that it had been freshly broken off. They took the shoe, and it was afterwards delivered to a justice of the peace. Near where the shoe was found was evidence of where two other horses had been hitched for some time, and against the wire fence and parallel with it was a beaten path, about 18 inches wide and 10 feet long, where apparently some one had walked up and down until all the weeds and grass had been crushed and had died and withered. The dogs continued to follow the trail, barking and smelling of the cane on out to the cotton patch. They were following all the time horse tracks. One of the horses was unshod and had large feet. One of the horses had three shoes on, and the left hind shoe was missing. One of the horses was apparently shod all around. When they reached the cotton patch, the largest track and the one with the three shoes on it went straight across the cotton patch to a negro house on the road that leads down from the big gate at witness Handy Price's through the field, being the same road from which the defendants were seen last before the killing. The track that was shod all around turned to the right when it reached the cotton field, skirted around the edge of the timber and across the road some two or three yards around and continuing to skirt a little belt of timber went out towards where some new ground was being cleared in the Westwood field. The dogs followed the two tracks, and when they arrived nearly at the cotton pen the tracks turned north towards the gate diagonally across the road. This was between 9 and 10 o'clock in the morning, and a very warm, dry day. When the dogs reached the road, they refused to follow the trail any further. There had been considerable travel up and down the road that morning. The dogs were not taken out at the gate and put on the road going through the woods north for some reason, but were carried back to town. When the officers had followed the dogs down the fence by the place where the horses were hitched and out to the big gate, they first learned that Mr. Kirby was shot in the right shoulder and back. At the place where an old log lies and a big oak tree stands, the roads turned abruptly to the left, so that a person riding along the road going towards Mr. Kirby's house, as he was going, would have his back...