Smith v. State
| Decision Date | 31 October 1949 |
| Docket Number | 4583 |
| Citation | 223 S.W.2d 1011,216 Ark. 1 |
| Parties | Smith v. State |
| Court | Arkansas Supreme Court |
Rehearing Denied November 21, 1949.
Appeal from Pulaski Circuit Court, First Division; Gus Fulk, Judge.
Affirmed.
Max Howell, for appellant.
Ike Murry, Attorney General, and Jeff Duty, Assistant Attorney General, for appellee.
Appellant was charged with murder in the first degree for the killing of Mrs. Sallie Mae Barner. The jury found him guilty and fixed his punishment at death and this appeal is prosecuted to reverse the judgment rendered in accordance with the jury's verdict.
The facts as disclosed by testimony offered by the State are substantially as follows: Sallie Mae Barner was employed as a nurse at the University Hospital in the City of Little Rock. On the morning of May 4, 1949, Mrs. Barner was on her way to work and had reached a point near the hospital between 10th and 11th Streets on McAlmont Street, when she was shot and killed. A man was seen running from the scene of the killing. Police who arrived soon after the shooting found five expended pistol shells around the body of deceased. A .38 caliber automatic pistol with three unexpended shells in a magazine clip was found in a yard at 1011 McAlmont Street. The finding of a man's jacket containing pictures of the deceased, and other papers, in the alley between 9th and 10th Streets led to a search for appellant who was apprehended by a police officer at Jacksonville Arkansas, on the morning of May 5, 1949.
Appellant was brought to Little Rock where he freely admitted the killing to Chief of Detectives, C. O. Fink, and consented to the making of a full statement to the prosecuting attorney. After being advised that he did not have to make a statement and that if he did so it could be used against him, and after being sworn by the prosecuting attorney, appellant's statement in question and answer form was taken down by the grand jury reporter and introduced at the trial. According to this statement, appellant and deceased were married in Texas in July, 1946. Appellant had been previously married, but was under the impression that a divorce had been procured by his first wife. When deceased learned that appellant had not been divorced from his first wife, she obtained an annulment of her marriage to appellant. The annulment was obtained in March, 1947, and Texas enforcement officers were informed of the bigamous marriage. Appellant was charged with bigamy in Cass county, Texas. He entered his plea of guilty to the charge and was sentenced to three years in the Texas Penitentiary. He was released from the penitentiary in March, 1949, and came to Little Rock on April 29, 1949.
Appellant learned that Mrs. Barner was working at the hospital and after talking with her on the telephone met her at Second and Main Streets in North Little Rock. He asked her for his social security card, some rings, and $ 500 which he stated he had left with her for safekeeping until his release from the penitentiary. She stated that she did not have the things, but would get them and asked him to come back later. A few days later appellant went to Mrs. Barner's residence in North Little Rock, but learned that she had moved. Being unable to locate her new place of residence, appellant went to 1011 McAlmont Street on the morning of May 4, 1949, and waited for Mrs. Barner to come to work at the hospital.
In his confession, appellant first stated that he had stolen the pistol which he took to the scene of the killing, but later said that a young lady with whom he was keeping company had procured the pistol for him after he had lied to her about needing it for protection. The confession continues:
Appellant further stated that after the shooting he threw the gun in the yard and went down an alley to the next street and down a side street to another alley where he removed and left his jacket. He proceeded from there across a railroad bridge to the Missouri Pacific railway yards in North Little Rock where he caught a train which he thought was leaving town. When he discovered the train was not going out of town, he walked up the tracks within three or four miles of Jacksonville and "slept out" that night. He came into Jacksonville the next morning and procured a newspaper from which he learned that the police were looking for him. After drinking some beer, he telephoned Chief Fink that he was ready to surrender and the call became disconnected. Shortly thereafter Officer Garner appeared and took him into custody. Appellant also admitted that on the morning of the killing he stopped a man about four or five blocks from the University Hospital and inquired as to its location, and that he was standing on the corner near the hospital and asked a lady across the street if that was the University Hospital. He also stated that he thought Mrs. Barner was in Arkansas when he entered his plea of guilty to bigamy, and that she did not appear against him, but had told him that she had informed the authorities and he felt that she was responsible for his going to the penitentiary.
The State introduced in evidence a photograph of the nude back of deceased taken at a funeral home shortly after the killing showing the points of entry of five bullets in the left arm and back of deceased. The coroner who was called to the scene soon after the shooting described the fatal bullet wounds and pointed out on the back of the prosecuting attorney the points of entry of the bullets.
A letter from appellant to Jack Barnard and wife of Little Rock, who had known appellant for seven or eight years, was properly identified and introduced in evidence by the State. The letter was dated March 20, 1949, from Corsicana, Texas. In this letter appellant professed his love for, and intention to marry, Barnard's sister-in-law and, in reference to deceased, stated:
Mrs. J. M. Bizzell, mother of deceased, who lives near Austin, Lonoke County, Arkansas, testified that she was acquainted with appellant's handwriting and identified letters that he had written to her and her daughter. She identified a letter written by appellant to deceased from Bryan, Texas, on January 15, 1947. The letter reads:
A letter from appellant to Mrs. Bizzell dated April 8, 1949 from Marshall, Texas, was introduced in which appellant informed Mrs. Bizzell that he would be at her home on April 12th or 13th and warned her to have Mrs. Barner there and stated that if she was not there, Mrs. Bizzell also found two notes addressed to her in appellant's handwriting together with a picture of deceased on the front...
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