Plumley v. State

• Decision Date: 14 December 1914
• Docket Number: (No. 60.)
• Citation: 171 S.W. 925
• Parties: PLUMLEY v. STATE.
• Court: Arkansas Supreme Court

171 S.W. 925

PLUMLEY v. STATE.

(No. 60.)

Supreme Court of Arkansas.

December 14, 1914.

Appeal from Circuit Court, Columbia County; C. W. Smith, Judge.

A. J. Plumley was convicted of murder in the second degree, and he appeals. Affirmed.

A. J. Plumley was indicted for the crime of murder in the first degree in Columbia county for the killing of his son-in-law, Bynum Martin, and upon trial was convicted of murder in the second degree, and from the judgment he appealed.

The facts ars substantially: Bynum Martin was killed by being shot with a shotgun on the 3d day of October, 1913, in front of the house of Witt Perkinson in Columbia county, Ark. The killing occurred just about dark, or shortly thereafter. Perkinson, who was at the supper table, heard a gun fire and a woman scream at his back porch. He ran immediately to her and then to the front porch, when he heard the dying man exclaim: "Oh! Oh! Witt, he shot me for nothing." He went to the place and found Bynum Martin lying on the ground wounded, who expired in five minutes thereafter. The feeling between the appellant and his son-in-law was not friendly, and on the day of the killing, and immediately before it, appellant called him up over the telephone and asked him why he had taken the flooring out of his cotton house, to which Martin replied, "I don't know that I have." Appellant said: "Yes, you have. I didn't give you the cotton house." Martin replied: "You have this wrong. Come down here and we will talk it over." Appellant said: "No, I am not coming down there to your house, but I will meet you on halfway ground," to which Martin replied "All right." This conversation was over a rural telephone line, and J. H. Miller took down his receiver and heard it. He said the voices seemed dispassionate, and he was greatly shocked to hear of the death of Martin about a half hour afterwards. Appellant stated that:

Martin had moved the floor out of his cotton house, and he called him over the telephone and asked why he had done so, and "Martin replied that he did not know that he had moved the floor out of my cotton house, and I told him I did not give him the cotton house, and he said, `If you will come down here, we will settle all that right now.' I told him I did not care about coming down there, but would meet him on halfway ground, and he said he would do that, and I hung up the receiver. I then picked up my gun and walked over to the bureau drawer, where I had two shotgun shells, and put the shells in my gun. My wife asked me not to go down there, and I stood there and talked to her two or three minutes and told her I wouldn't meet Bynum myself, but would go to Witt Perkinson's and get him to go over to the halfway place and meet Bynum, and I started out, and just as I got to the place where the trail forked to go up to Perkinson's house, Bynum hailed me, and said, `Is that you, Andrew Plumley?' and I said, `Yes,' and he started towards me. I told him I was going up to Witt Perkinson's to get him to settle the matter, and Bynum said: `No, sir; this is the time and here is the place where we will settle the matter.' And I kept going, and he started to head me off, saying all the time that he would not wait, that we would settle everything right there and then. He was within a few feet of me, about 12, and said, `Here is the place where we will settle it,' and at the time put his hand in his pocket, and I thought I heard the click of a pistol. He was within 10 or 12 feet of me. I raised my gun and fired, and he fell over there between me and the road. He was between 10 and 15 feet from me, between me and the road. I was standing in the trail that goes up from my house to Perkinson's, down towards my house from Martin's. My house was northwest of his. He was southeast of me. He was on the north side of the mound. We had not been on good terms prior to that night. He had mistreated my wife and also my daughter, who was his wife, to whom he had been married three years. I sold him the place he lived on, and the house and little strip of land, about 30 yards wide and 250 yards long, was not on the land I sold him, but I let him have the use of it, and he moved the floor from the house on this piece of land I had built for a shop. When I called him over the telephone, he did not appear to be in a good humor. He was walking very fast when he came down towards me."

Appellant told no one of having killed Martin until the Sunday following, when he was asked about it.

Perkinson testified: That he lived about 200 yards from Plumley, the appellant. That the nearest way between the two houses was through his back yard. That the path from the front way was about 50 or 75 yards further than from the back. That Martin lived about a quarter mile from him. That going out from his front gate Plumley lived west and Martin to south.

"I heard the report of the gun that killed Bynum Martin. I was eating supper at the time, and it was after dark, probably 30 minutes. There was only one report. About that time a woman screamed at the back of my house. I heard the scream about the time I heard the report, and went to see about it, and Mrs. Plumley was at the back door. I then went to the front, and the man who was shot exclaimed, `Oh! Oh!' That, I don't suppose, was over 10 seconds after the shot was fired. I couldn't understand him, I heard him say, `Oh! Oh!' and, `Witt, he shot me for nothing.' I was about 50 yards from the wounded man, and he died about 5 minutes after he was shot. He was unconscious after I got to him. It might have been 20 seconds from the time I heard the gun fire until Martin made the statement. I had gotten to the front porch after the gun fired, and I started when I heard the scream out the back way. I suppose it is 25 or 30 feet from the back to the front of the house. I heard Martin's statement before I got off of the front porch. Martin was lying to the right of my front gate towards Plumley's house. The body was lying towards the cotton house. Mrs. Plumley went out to where the body was lying. Plumley was not there that night, although there was a crowd of 30 or 40 present. A knife partly opened was found near Martin's body shortly after he was killed. The wound was in the left side. Nine buckshot entered the body with the exception of those striking the hand of the deceased. The cotton house was 60 or 70 feet from where the body was lying and near where the roads come together."

The state's theory of the case was that appellant had gotten behind the cotton house and waited until Martin came more than two-thirds of the way and shot him as he passed. Gun wads were found in a direct line between the place where the weeds and grass had been tramped down by the cotton pen by some one standing there and the place where the body lay, showing they had been fired from the same gauge gun used by the appellant and loaded with buckshot. The first wad was found about 10 or 12 feet from the cotton house, and the layer of thin paper, the one over the shot, was found within 5 or 6 feet of the body, which was about 35 feet from the cotton house. The most of the shot ranged upward, and the mound near which Martin fell was about a foot and a half higher than the ground at the cotton house.

The court, among others, gave the following instructions, over the objections of the appellant:

Instruction No. 5, given at the instance of the state, is as follows:

"You are instructed that a bare fear of those offenses, to prevent which the...