Selman v. State

• Decision Date: 21 May 1923
• Docket Number: 391
• Citation: 251 S.W. 882,159 Ark. 131
• Parties: SELMAN v. STATE
• Court: Arkansas Supreme Court

251 S.W. 882

159 Ark. 131

SELMAN v. STATE

No. 391

Supreme Court of Arkansas

May 21, 1923

Appeal from Sevier Circuit Court; B. E. Isbell, Chancellor affirmed.

Judgment affirmed.

Lake & Lake and J. S. Steel, for appellant.

The court erred in giving instruction numbered 25 as requested for the State. Cornelius v. State, 12 Ark 782. It was an instruction on the weight of the testimony. Sec. 23, art. 7, Constitution; 133 Ark. 314; 154 Ark. 75. Court erred also in refusing to give appellant's requested instruction No. O. 102 Ark. 180; 110 Ark. 402; 74 Ark. 444. Prejudicial error was also committed in permitting the letter of Oct. 12, 1922, to be introduced in evidence.

J S. Utley, Attorney General, John L. Carter and Wm. T. Hammock, Assistants, for appellee.

No error committed in giving instruction No. 25. Cornelius v. State, 12 Ark. 786. Res gestae. Wharton on Evidence, 258, 267; 58 Ark. 168; 3 S.W. 51; 157 Mon.; 31 N.E. 961; 2 L. R. A. 235; Words & Phrases, 6136. Appellant's requested instruction No. O, refused, was not a correct statement of the law. 74 Ark. 461; 113 Mo. 670; 107 Mo. 36; 52 Ark. 345; 77 Ark. 474; 95 Ark. 409; 106 Ark. 8. If error committed in allowing introduction of letter, it was invited.

OPINION

WOOD, J.

G. G. Billings, a lawyer living in the city of DeQueen, Arkansas, whose office was situated upstairs in what is designated as the Tobin building, on the morning of September 21, 1922, was shot and killed in his office by Roy Selman. Selman was indicted for the crime of murder in the first degree for the killing of Billings, and was tried and convicted of murder in the second degree, and sentenced, by judgment of the court, to imprisonment in the State Penitentiary for five years, from which judgment he appeals.

Mrs. Billings, who assisted her husband in the office work, was in the office on the morning of the killing. Selman was in the office that morning about fifteen minutes before the shooting. He left the office, stating that he was going to the courthouse. While he was in the office, he showed no feeling of anger toward Billings. Mrs. Billings heard her husband asking Selman if he had come up there for trouble, and Selman replied, "No," that he was not looking for trouble. After he left the office she took her baby and went to the drugstore, and while standing just outside the drugstore heard that her husband was shot. She ran to the office, and found him sitting in the chair where she had left him. There were two shots in his neck, one almost in the center and the other through the collar, and one finger of his right hand was almost severed. Billings said, "Roy Selman walked into the room and says, 'I have got the dope for you,' and shot me twice." She asked Billings what he said to Selman, and Billings replied that he didn't say anything --that Selman didn't give him time.

Another witness, who heard two shots fired, in a few seconds thereafter saw Selman emerge from the Tobin building and go towards the courthouse. He saw Selman hand his pistol to another party. Witness asked him what was the matter, and he replied that he had shot Billings. He said: "I started in to see him, and he made for his old gun, and I shot him." Witness went up to Billings' office and found him sitting in a rocking-chair, with two bullet wounds in his neck. He spoke to witness and said, "Tom, he has killed me."

Several witnesses who went into Billings' office immediately after the shooting testified to the effect that Billings said that when Selman came in he said, "I have got the drop on you," and shot me. One of these witnesses, Abe Collins, a lawyer living at DeQueen, stated that when he went into Billings' office he found Billings sitting in his rocking-chair with his head thrown back. Billings said, "Roy Selman has killed me." Two or three minutes after this they put Billings on a stretcher and he assisted in carrying him to the hospital. While carrying him he asked Billings what he had done to Selman, and Billings replied, "Tried to collect a debt." Witness then asked Billings, "What did you do to try to collect the debt?" and Billings replied, "Garnish." Billings told witness, in the conversation, that when Selman came in the office he said, "I have got the dope on you, or dope for you." Witness asked Billings if he did anything or attempted to do anything to Selman, and Billings replied, "Not a thing." Billings died about an hour thereafter.

Other witnesses testified to the effect that they heard Billings say that Roy Selman shot him and had killed him. One of the witnesses stated that he heard Billing say that Roy Selman had made the second trip to his office; that he came to the door the second time and Billings invited him in. He stepped in and said, "I have got the dead wood on you and, d-- you, I am going to use it." Another witness, who was rooming in the Tobin building, just across from Billings' office, was sitting in his room when he heard the shots, and just prior to the shooting he heard some one come up stairs and go to Billings' room, and heard Billings say, "Come in." Then the door slammed, and the two shots were fired.

Another witness, who was on a telephone pole where he could look into Billings' office, stated that he just happened to look over in the window, and just as he did so he saw something bright up there, and saw Billings sitting in the chair, and saw whoever it was in front of him with the bright gun. He saw the gun flash twice and Billings sitting in the chair when the first shot was fired. When the first shot was fired Billings jumped out, and when the second shot was fired he jumped back in his chair.

The appellant testified in his own behalf, and, after relating various conversations and controversies he had had with Billings concerning the claims of parties against appellant that had been put in the hands of Billings for collection, stated that Billings had in his hands the claim of one McKinney. He had paid Billings twenty dollars on this claim. Billings denied this, and said to witness, "I am darn tired of fooling with you." Billings said concerning this claim, "That is one debt you are going to pay." Appellant told Billings that if he would give him credit for the $ 20 he had paid him, he would give him an order for ten dollars out of every two weeks' wages until the whole debt was paid, but that he could not pay it at that time. Billings replied to this, "That is one debt you are going to pay. I will send two or three of you sons of a b--s to hell." Appellant made no reply to this statement. Appellant stated that he had been to Billings' office that morning to see him about this claim. He told Billings that he had been summoned. Billings told him to go and get the summons and bring it to him. Appellant went out and found it where he had dropped it, and, after a short conversation with one McCowan, whom he met on the street, in which conversation nothing was said about Billings, he again started up to Billings' office to carry the paper. When he got to the office the door was closed. He knocked on the door, and Billings told him to come in. He walked inside and closed the door. He had the paper in his left hand. He took two steps and said: "Here is that paper for you." Billings came over like this (demonstrating) and said, "You son of a b--, I have fooled with you the last time I am going to." When Billings made that remark he moved toward the drawer of the desk. Appellant jerked his gun out and fired twice. He shot Billings because he thought Billings was preparing to shoot him with a pistol. Appellant had seen a gun in the drawer once or twice before that, and he thought Billings was trying to get it. During all the conversations with Billings the appellant was not mad and used no angry word toward him. He shot at Billings' hand, thinking that would stop him. The shots were fired about as close together as a double-action could be fired.

Appellant's testimony further shows that he was employed by the Kansas City Southern Railway Company, working as night-watchman at the roundhouse. In the performance of his duties as a guard at the roundhouse he had a pistol, and that was the pistol with which he shot Billings. He had been carrying it home with him when he was off duty.

Various witnesses testified on behalf of the appellant as to his conduct on the morning of, and prior to, the killing. One witness, Irwin, a justice of the peace, stated that Selman came to his office on that morning about 7:15 and stated the facts to him with reference to garnishments that had been issued on the McKinney and Tobin claims against appellant. Irwin had succeeded McKinley as justice of the peace, and he prepared certain papers for Selman, reciting that no judgment had been rendered by McKinley against Selman on the McKinney claim.

The attorneys of the appellant, with whom he had consulted on the morning of the killing in regard to the claims that Billings had in his hands for collection, testified to the effect that at the time appellant was consulting with them he talked in an ordinary tone of voice and did not show any malice or anger toward Billings. The testimony of other witnesses on behalf of the appellant was to the effect that they heard Billings, in the conversation with reference to these claims make the remarks which appellant testified that he did make, showing that he was angry with appellant, and that appellant made no reply to the angry remarks of Billings, and did not manifest any anger himself. On the contrary, two of the witnesses stated that he was not mad at all, and one of them stated that he seemed to be in a good humor. There was testimony tending to show that Billings, shortly before the killing, stated that he had a pistol in his drawer that he...