Powell v. State
| Decision Date | 09 July 1928 |
| Docket Number | (No. 111.) |
| Parties | POWELL v. STATE. |
| Court | Arkansas Supreme Court |
Appeal from Circuit Court, Clark County; Jas. H. McCollum, Judge.
Earl Powell was convicted of being an accessory before the fact to the crime of arson, and he appeals. Affirmed.
Robert L. Rogers, of Little Rock, O. A. Graves, of Hope, and McMillan & McMillan, of Arkadelphia, for appellant.
H. W. Applegate, Atty. Gen., Walter L. Pope, Asst. Atty. Gen., and A. D. Du Laney, of Little Rock, for the State.
Earl Powell was indicted as accessory before the fact to the crime of arson, alleged to have been committed on January 23, 1928, by Marcus Faulkner. Mrs. Wright testified that she was the owner of the property on which a picture show was being operated by R. D. Wright in Gurdon, Clark county, Arkansas. The building was destroyed by fire December 20, 1927. R. D. Wright testified that in the building in which he maintained a theater there was also a barber shop, restaurant, and offices up stairs. The defendant also operated another picture show at Gurdon. The building had been damaged in March, 1926, by a fire similar to the last one, and defendant had rebuilt the same. The defendant was in the picture show business at Gurdon at the time of the first fire. The first fire resulted in a total loss of equipment and machinery, and the damage was more than $5,000.
The first fire was set in the manhole under the booth; the manhole was made for the plumbers and electricians to go under there and do their work. Witness, on August 19th, sold a negro a ticket to the show. When the negro entered the theater he had a package under his arm. He came out complaining that he had a headache. The next morning at two o'clock the building was dynamited and badly wrecked. The explosion was on the brick wall where the negro sat. Witness noticed that the negro had a bundle when he went in, but did not notice the bundle when the negro came out. After the explosion, witness went to the defendant and told defendant that he didn't believe in dirty competition, and offered to buy defendant's show business for a fair price. The defendant and witness had several conversations and defendant recently offered to buy witness' picture show business. Witness offered defendant his business for $40,000. One night the defendant came to witness' ticket office, and stated he thought the property was worth the money, and that he would let witness know in a few days. That occurred about 30 or 40 days before the fire. The defendant did not come around in a few days, and witness then called on him about it, at which time he stated the price was too much.
Witness was one of the aldermen of Gurden, and the defendant was fire chief. The fire-fighting equipment in Gurdon consisted of a big truck, which operates on its own power, and 1,500 feet of hose. It was an efficient outfit. On the night of the last fire, the truck wasn't there for a long time. It was pushed by hand to the railroad track, where a truck had to be hitched to it to pull it over the track. Witness did not see the defendant at the fire that night. Witness got a high-powered flash-light and went on the roof looking for tracks. The first building, next to the theater, was four feet higher than the next building going up the street toward the hotel, and in fighting the fire it was not necessary to go on the second roof. Witness and a man named Newton, who accompanied witness, went over to the hotel, where the owner told witness about Faulkner's having a room there, and that he had requested to be moved back after she had moved him out. Witness traced tracks to Faulkner's room in the hotel. Witness informed the sheriff. They guarded Faulkner's room until daylight. When it was light the city marshal, the sheriff, and his deputy saw the tracks and went in and arrested Faulkner, after having fitted his shoes in the tracks. There was frost all over the roofs of the houses, and it was easy to trace the tracks.
We need not set out any further testimony tending to prove that Faulkner burned the building, for he was a witness, and testified that he did burn the same; and that he was hired to do so by the defendant.
Mrs. Epperson testified that she operated the Commercial Hotel, and the restaurant therewith, in December, 1927. She knew Marcus Faulkner and first saw him December 14th, when he came and registered at the hotel, where he had a room and was staying on the night of the fire, and where he was arrested after the fire. Faulkner, by mistake, went to room No. 12, which is on the opposite side from the theater. He later asked for room No. 1 on the side next to the theater. Faulkner was taken out of No. 12 and was given room No. 39, and afterward he asked for room No. 1 again. Witness knew the defendant. He took some of his meals at witness' restaurant. Powell was in and out all during the day. He sometimes entered the hotel through the hall, sometimes through the dining room and on through the hotel door. He came and went in the lobby of the dining room, and it was not unusual for him to be around the hotel. He didn't spend much time at the hotel; came and took his meals and went out, as others did. She didn't see him at the hotel the night before the fire, nor the morning after the fire, but he came into the café in the afternoon of that day for something to eat.
Bill Jamerson was a colored porter at the Commercial Hotel. He was such on the night that the Wright theater burned. He saw Faulkner two or three times around the hotel before the theater burned, and he also saw Powell around the hotel often. Witness explained the situation of the lobby and the barber shop and the lavatory. The lavatory was on the left of the hall, the barber shop on the right. Witness stated that he had seen Powell and Faulkner in the lavatory. Powell was in a pay-station toilet and Faulkner came in and washed his hands. Both were in the back room where the toilets were. Witness was sweeping at the time, and went out after he got through with his duties, and left Powell and Faulkner in there. Witness didn't see or hear them talking to each other. Witness saw Powell in the hotel frequently. He ate his meals around there all the time. Witness saw him in the pay station once — nearly everybody uses the lavatory.
Milton Morton testified that he operated a barber shop in the same building as the Commercial Hotel. About the middle of the week before the fire, witness saw Powell come into the barber shop from the back of the hotel; he did that on an average of two or three times a week. Customers in witness' shop, as a rule, used the hotel lavatory; there was nothing unusual in Powell coming into witness' shop and going into the hotel lavatory — different ones did that.
H. Shepard testified that he was marshal of Gurdon the night of the fire. Powell was the fire chief at that time and, as such, had charge of the fire equipment and the house in which it is kept. Witness did not see Powell at the fire on December 20, 1927. Witness was at the fire and found that they had to push the engine to get it there, and he helped to push it. The fire plug was operated with a wrench, by which the cap was taken off of same, the hose attached, and the water turned on. The thing you turn the water on with is on the top over the plug; the wrench goes with the truck. There are special wrenches for the plugs. The firemen tried to turn on the water and couldn't do it. There was but one wrench with the engine that night. There are five sides on the thing with which you turn on the water, and there are four wrenches that go with the truck. Since the fire witness had found one or two wrenches in the fire house, under some rubbish. The wrench they had that night had been hammered on all sides, and wouldn't go on the plug. The wrench was exhibited to the jury. The water was turned on that night with a little monkey wrench that witness got over it. Witness couldn't say how many keys there were to the fire house. Witness had one in his possession. The fire chief had one and there was one that stayed at the council room. There were supposed to be several more.
A. L. Horton testified that he was night marshal at Gurdon on December 20, 1927. The door to the house where the fire engine stays is generally operated with a little stick. The doors come together and generally the doors were opened by running a little stick in to raise the latch and open the bars. That couldn't be done that night. Nails were stuck up over the bars at the ends. After the doors were opened the truck couldn't be driven out; it had to be pushed out and hitched to another truck. The regular driver was there, but he couldn't drive the fire truck. Usually the doors to the engine room were left so anybody could flop the stick that fastened them and get in, but on the night of the fire nails had been put in, as stated, to keep them from opening it.
Roy Gates testified that he worked on the fire truck the morning after the fire; the truck would not run. The carburetor was off from the needle valve so it couldn't get any gas. The valve underneath the gas had been fastened up with a pair of pliers, and witness had to loosen it with a pair of pliers. When it wasn't screwed too tight it could be started with the hand, but on this occasion it had to be unscrewed with pliers. It had been put out of business — so it wouldn't run.
Doan Yeager testified that he knew Earl Powell, the defendant, and saw him the morning before the fire. Witness, and others, were warming by a fire at the planing mill when defendant Powell drove up and said, "What's the matter, not having more fire?" He took a piece of waste out of his pocket and said, "I reckon that'll burn." The waste is stuff that automobile mechanics used to work on cars with in their business. Powell had this in his hand, lit it in the fire and threw it on the ground and said, "Reckon that'll burn," and...
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