Simpson v. State

• Decision Date: 02 April 1892
• Citation: 19 S.W. 99,56 Ark. 8
• Parties: SIMPSON v. STATE
• Court: Arkansas Supreme Court

19 S.W. 99

56 Ark. 8

SIMPSON v. STATE

Supreme Court of Arkansas

April 2, 1892

APPEAL from Pulaski Circuit Court, ROBERT J. LEA, Judge.

This is an appeal from a judgment of death pronounced against the appellant by the Pulaski circuit court at its October term 1891. He was charged with the murder of W. L. Copeland, a policeman of the city of Little Rock, who was in the act of arresting him when he was killed. Appellant was at the time a convict in the state penitentiary, but was allowed to go outside of the prison walls at certain times as a special privilege in recognition of his good behavior. The trial developed the following facts:

Dr Scott testified: I am a practicing physician. I was called to see Copeland on the night of the killing, about 8 o'clock. He was unconscious, and never gained consciousness while I was attending him. There was a wound in the temple (I think the left temple), but it did not penetrate the skull; also a blow on the head, which I think caused a rupture of a blood vessel. I think the blow on the head caused Copeland's death. It might have been made with a round stick or chair round. There was also a cut on the arm.

Mrs Copeland: On the evening of the killing my husband left home about 7 o'clock to go on night watch. Soon after he left I heard a pistol shot, but paid no attention to it, because before he left home he said he intended to kill a dog. When he was brought home, he was cut on the arm and had a wound in the temple and back of the head. He died the same night about 12 o'clock.

A. L Donnelly testified: I remember the night Copeland was killed. I had lit the lights in my saloon. I saw a man standing with a bundle under his arm; I noticed his hair was full of dirt and matted, and he was bloody; saw it was Copeland. I washed him off; he tried to speak, but could not. I tried to get him to go with me, but he would not. I finally got some of the boys to take him by the arm, and I went ahead and he followed me. While we were on our way to the drug-store he went along very well, until he looked around and saw a man hold of him. He pulled back and tried to strike this man; he did not want this man to touch him at all. We finally got him to the drug-store, and we went to where the difficulty occurred. We found a pistol with one chamber empty at the corner of Fifth street and Rector avenue, or near there. I saw where Copeland fell in the street. There was evidence of a scuffle and a pool of blood in the street. There was evidence of a scuffle from where we first saw blood to where Copeland fell. Copeland was a much larger man than the defendant. The killing occurred in Pulaski county, December 30, 1885. The man that Copeland objected to taking hold of him was a dark brown-skinned man, and resembled defendant very closely. We found the pistol near the steps, some little distance from where Copeland fell. The bruises on the head seemed to have been made with a blunt instrument. A chair round or a policeman's club would have made the same kind of wound.

E. H. Sanders testified: I am chief of police of the city of Little Rock. The defendant was turned over to me by the sheriff of Ouachita county. He sent for me and made the following voluntary statement:

"I and one John McMillen were out with a pass permitting us to be out until 10 o'clock. We were going out Fifth street toward Rector avenue, when we were hailed by deceased, who was on the opposite ride of Rector avenue. We stopped, and while deceased was looking at my pass John McMillen struck him; deceased fired one shot, and we both ran. John McMillen was as much implicated as I was."

Sam Speight testified: I am city detective of Little Rock, and was acting in that capacity when deceased was killed. Defendant stated to me that McMillen knocked deceased down while he was looking at the pass.

Frank Botsford testified: I was chief of police of Little Rock at the time the deceased was killed. He was assigned at the time, and had orders, to arrest all convicts at large, whether they had a pass or not. I do not know of any understanding with the penitentiary authorities that convicts having a pass would be exempt from arrest. The police force had orders to arrest convicts at large. The next day a piece of paper was handed to me, said to have been found near the place of difficulty. It had small spots of blood on it, and was a pass for Louis Simpson to be outside the walls until 10 o'clock. The pass is here produced and identified, and is as follows: "Louis Simpson has permission to be out of the walls till 10 o'clock to-night. G. A. Leiper, Warden. Dec. 30, 1885."

On cross-examination by the defendant, witness stated that there was at the time of the killing a city ordinance prohibiting convicts from roaming at large in the city without a good and sufficient guard, and making it a misdemeanor.

Dave Adams testified: I was cite detective at the time policeman Copeland was killed. I went down to Fifth street and Rector avenue the next morning; saw evidence of quilt a scuffle, a large pool of blood in the street, and some blood near the sidewalk.

Geo A. Leiper testified: I was warden of the penitentiary when Copeland was killed. Simpson was a convict at that time; was what is known as a "trusty," and was allowed to go out of the walls as a privilege for good conduct. He always conducted himself well, and gave us no trouble. He had a pass the night of the killing, and did not return to the penitentiary.

Defendant testified: My name is Louis Simpson. My former home was at Camden, Ouachita county. I was sent from there to the penitentiary. On the night of the difficulty between the policeman and myself, I was outside the walls by permission of Mr. Leiper, the warden at the time. He gave me a pass to be out until 10 o'clock, and told me not to get into trouble and let the officers grab me up. I left the walls about 7 o'clock, taking with me some clothing I intended to have washed. I was going east on Fifth street when deceased hailed me and told me to throw up my hands, which I did. I had on my stripes. He came up to me and told me he would have to arrest me because I was a convict. I presented the pass given by Mr. Leiper, and he remarked, "This ain't worth a damn;" and took hold of me. I resisted; we had a scuffle. I broke loose from him and started to run, when he fired and I fell. I lay still; he came up to me and walked around and up to me, and as he leaned over me and started to put on the "nippers", I struck him with a knife. I jumped up and he fired again, and I ran down another street and went out to St. John's College. I then wear to the southeast corner of the prison walls, and intended to go in, but I did not know how bad I had injured Copeland, and I made up my mind to leave, which I did. I was acquainted with Copeland. I had never had any trouble with him or with any of the officers. I had been in the habit of passing and re-passing, just as I did that night. I don't recollect of ever speaking to the deceased in my life. I knew that, if I failed to get back to the pen on time, I would be flogged and put back in the ranks, and I tried to get loose from deceased.

There was no one with me. I did not strike him with anything. Deceased fired two shots when I ran from him. He fired and I fell, when he fired again and came toward me and walked around me, and as he came up near me and leaned over me, and I was lying on my side, I struck at him with my knife. Don't know when I opened the knife; don't think I had it open when I ran from the deceased. I was so scared that I hardly knew what I was doing. I was trying to get away. I had my pass, and I thought I had a right to be out. I had never been molested before. I didn't strike at Copeland but once. Don't know when I got out my knife; don't know whether I hit him; didn't hit him with a stick--not anything but my knife. No one was with me. McMillen was not with me that evening. I have told everything just as it occurred, to the best of my recollection. I made up my mind that it was no use to put anything on innocent people. When I escaped, I went around from one place to another. A man gave me a change of clothes, and I finally got to New Orleans, when I was arrested and brought back by the sheriff a few months ago.

Cause remanded.

T. P. Johnson for appellant.

1. The arrest was illegal. The deceased had no reason to believe that defendant had committed a felony, nor was any offense committed in his presence. 55 Am. Dec., 97. Deceased knew him to be a "trusty" out on pass. 53 Ark. 518.

2. It was error to admit parol testimony to prove a city ordinance. 35 Ark. 75; 1 Gr. Ev., p. 372; Wharton, Cr. Law, vol. 2, 659-66I; 1 Phill. Ev. p. 19-20.

3. Defendant's confession must be taken as a whole. 12 Ark. 70; 14 id., 442.

4. The evidence does not make out a case of murder in the first degree. 15 Oh. St., 47; 1 Cr. Def., 220; Bish. Cr. Law, (2nd ed.), sec. 656.

W. E. Atkinson, Attorney General, and Chas. T. Coleman for appellee.

COCKRILL, C. J. BATTLE, J., dissenting.

OPINION

COCKRILL, C. J.

The appellant had been legally sentenced to the penitentiary for a felony, and, before his term had expired, the warden of the penitentiary permitted him to leave the prison without a guard and go into the city of Little Rock, where he was recognized as a convict by a policeman named Copeland, who attempted to arrest him for the purpose of returning him to the prison authorities. The officer had no warrant for the convict's arrest, the latter resisted, and in the rencounter the officer was killed.

The appellant was indicted for murder in the first degree and was convicted of that grade of offense. He complains of the following part of the court's charge to the jury, viz "The court...