McElvain v. State

• Decision Date: 23 October 1911
• Parties: McELVAIN v. STATE.
• Court: Arkansas Supreme Court

142 S.W. 840

McELVAIN v. STATE.

Supreme Court of Arkansas.

October 23, 1911.

Appeal from Circuit Court, Mississippi County; Frank Smith, Judge.

John McElvain was convicted of murder, and he appeals. Affirmed.

Hal L. Norwood, Atty. Gen., and Wm. H. Rector, Asst. Atty. Gen., for the State.

KIRBY, J.

The appellant, John McElvain, was indicted and convicted of the murder of Jake Thomasson and sentenced to be hanged. Thomasson's family consisted of himself and wife and six children, the oldest 10 years of age, and McElvain worked for or with Thomasson and lived with the family, all sleeping in the same room. On the day of the killing, McElvain had been out hunting and returned late in the evening, and was seen by Mrs. Thomasson sitting in the barn door shucking corn and throwing it to the hogs. Thomasson went to the wood yard and was cutting stove wood, and his wife was busy cooking supper, when she heard the report of a gun and some one said "Oh, Lord." Mrs. Thomasson ran to the door and saw her husband lying flat on his face, the appellant walking towards him and throwing a shell out of his gun or throwing another one in. Thomasson said, "Don't do that," and he walked up within six or seven feet of him and fired again, shot him in the side of his head and face. McElvain was about 25 feet from her husband walking towards him when she first saw him, and Thomasson was lying on the ground on his face. He said nothing to any one, did not seem to be excited at all, and, after firing the second shot, turned and walked towards the barn.

Appellant testified that he had been living with the family for about a month before the killing occurred, and on that day he had returned from hunting between sundown and dark, and, "Mr. Thomasson was out getting some stove wood and I came up below the lot, and I gave Mr. Thomasson's hogs and geese some corn. I generally done most of the feeding, and when I come up they were following after me, and I went by the crib and threw them out a few ears of corn. I crawled through the wire fence, it wasn't stretched tight, and I went through there to get around the lot to keep from having to go through the mud, and I went up the fence and got pretty close to Mr. Thomasson and he says, `Well, I have moved that bed of yours upstairs,' and I says, `You will have the trouble of moving it down, I am not going to sleep up there until after the bad weather is over,' and he drew the ax back left handed and said, `You son of a bitch, you will sleep there or I will chop your head off.' And I commenced backing from him and I asked him to stop three times, and I told him if he didn't stop I would stop him. He kept coming and I was backing back just about as fast as he was coming to me, and I threw the gun down on him and he turned his left side to me. He had the ax drawn back right handed, and he turned his left side to me like he was going to throw the ax at me and I shot him, and he was still making motions, walking towards me as he turned his left side and I shot him, and as quick as I could pump the gun I shot again. I shot the second time in rapid succession. If a shell hung I did not know anything about it. He started on me with an ax and I began backing and he kept coming, and I told him to stop or I would stop him. He spoke about going to put my bed upstairs and make me sleep there, and I told him I would not do it. That was Friday or Saturday before that. The house was a story and a half high and there was no window in the attic at all, and no ceiling, and only a rough gum floor. There were big cracks in it and no provision made for fire or anything. I told him I didn't mind sleeping up there in good weather if he would cut a window up there, but that it would be too bad in cold weather. I didn't argue with him a bit. He just started coming at me with the ax. He was chopping wood when I first spoke to him."

On cross-examination, he said, "Thomasson and I were good friends. There had never been any trouble between us. He liked me and I liked him. Up to the time of the killing there never had been any trouble between us. We all slept in the same room, himself and his wife and the babies. All the family treated me well, both Thomasson and his wife and the children, and there was no friction whatever between us. I told him three times to stop. I didn't shoot him in the back."

The clothes that deceased was wearing when shot were exhibited to defendant, and he was asked: "Q. Did you see where the shot hit him; there in the middle of the back seam of the overalls? A. It looks to be. Q. You know it is, don't you? A. It looks like it. Q. You know it. Here is the sleeve of one arm and here is the other, and there is the seam that runs down the back, the center seam. Do you see that? You shot him on both sides of the center seam in the middle of the back. Didn't you? Don't you see? A. There are shot holes in there, but I can't swear they are the same clothes. Q. There are shot holes all over the back and side? A. There are shot holes along there. Q. The main load of your shot struck him between the seam that runs down under the left arm and the seam in the middle of the back? A. It looks like it. Q. There is one hole there, just one shot under the seam; do you see it? A. Yes, sir; there is a hole there. Q. There are four over there? A. Yes, sir; there are four over there, but I don't know whether they are the clothes or not."

A loaded and an empty shell were found the next day near the place where appellant was standing when he fired the first shot, and Thomasson's face was powder burned, "black as my hat," as one witness said, "and a hole in his face that I could run my fist through."

A witness testified that appellant told him that he was about 35 feet from the deceased when he shot him the first time; that the empty shell lodged in his gun, and he had to get that out and throw another one in; that he walked towards him, and gave him the second shot and finished him up. Appellant denied having made this statement and also any conversation with the witness relative to having admitted an intimacy with the wife of deceased.

Camoline Thomasson, the eight year old girl of deceased, after being examined by the court as to her intelligence and ability to understand the obligation of an oath, testified as follows: "I am eight years old. I have never been in court before. I know what it means to take an oath. It means to tell the truth and you will be punished if you don't. It means not to tell a lie. It means to tell the truth or you will be punished. People who tell lies will go to the bad man. No one taught me this. I have known it...