Smith v. State

• Court: Arkansas Supreme Court
• Writing for the Court: WOOD, J.
• Citation: Smith v. State, 94 S.W. 918, 79 Ark. 25 (Ark. 1906)
• Decision Date: 07 May 1906
• Parties: SMITH v. STATE

94 S.W. 918

79 Ark. 25

SMITH v. STATE

Supreme Court of Arkansas

May 7, 1906

Appeal from Nevada Circuit Court; Joel D. Conway, Judge; affirmed.

STATEMENT BY THE COURT.

Appellant a negro, and the Gleghorn brothers, John and Count, white men, lived near each other in Nevada County. On the 28th of March, 1905, John and Count Gleghorn were clearing new ground. They had assisting them a negro named Will Preston. On the morning of the above day, a neighbor saw appellant leaving his home running. He looked like he was scared, had a slicker on his arm and a pistol in his right hip pocket. On being asked what was the matter, he replied: "Me and Mr Count and them got into it." The witness making the inquiry immediately ran to where the Gleghorns were, about a quarter of a mile distant. He found Count Gleghorn dead, and John shot John said he was shot in the breast, and would not live an hour. The witness asked him "What it came up about," and he said: Squire Smith accused us of stealing his dog, and swapping it off; but we never did it. He came up with his hand on his pistol, and I struck at and missed it and he shot me." John lived but a little while after making this statement.

Appellant had lost his dog. He said to a witness on Sunday, before the killing on Tuesday, that: "Count and the Gibson boy got his dog and traded it off. He didn't want them fooling about his dog. He didn't want to do anything. If they would let him alone, he would let them alone. He wasn't going to raise a kick, but they had better let him alone. He wanted to let them know he knew where his dog was and could go to it. He wasn't going to raise a kick, but they had better let him alone. He wasn't married to this country."

Another witness heard him say on Tuesday, a week before the killing and again on Monday, the day before the killing, "that Count and John Gleghorn got his dog. They were going to keep on until somebody gets killed over this dog."

Another witness heard him say on Sunday before the killing that "Count Gleghorn took his dog down and traded him to a negro, and gave him $ 2 to boot." The witness said to him: "This is a white folks' government, and you can't afford to accuse them of stealing a dog. He replied: "Well, professor, if they get in my road, I will tell them about it; but, if they don't, I won't." The witness said to him: "Squire, you leave that dog business alone," and he replied: "I ain't married, or tied, to this country. " To another witness, a short time before the killing, he said "He was going to have his dog, or have trouble over it." The physician who examined the dead body of John Gleghorn testified that he found a bullet hole just to the left of the breast bone between the second and third rib. The bullet went straight in, and did not come out. The bullet caused John Gleghorn's death. The physician saw no other marks of violence on John Gleghorn's body.

Appellant was indicted for the killing of John Gleghorn, the indictment in apt terms charging appellant with the crime of murder in the first degree. He was tried, and convicted of the crime charged. On behalf of the State the evidence was substantially as above recited.

On behalf of appellant, witness Will Preston testified substantially as follows: "I was working for John and Count Gleghorn, and saw the difficulty under investigation. Defendant came to where we were working, and John Gleghorn asked him if he had found his dog. He replied that he had not, but that he had heard that Count Gleghorn and the Gibson boy had swapped his dog off. They denied it, and defendant said that he didn't come there to see them about the dog, but about the timber on the line. John Gleghorn said, 'That is not what you came for,' and he picked up a pine knot and caught defendant in the collar and commenced striking him. After he had struck several licks, Count Gleghorn ran up with an ax, like he was going to make a lick or throw it. Defendant shot John, and then shot Count. Count fell. John fell on the other side, 'on his hunkers like.' Both John and defendant had hold of the pistol, and I started toward them. The pistol was pointed at me, and the defendant snapped it a time or two. When John was down, defendant had his left foot on his breast. John was up on his 'hunkers,' holding the pistol, and I walked up and told him to turn loose, and he did so, and fell back. I caught him, and with my assistance he got on his feet and started toward the house, but after he had walked ten or fifteen feet he gave down, and could go no further. I got some blood on my hands assisting him. I looked back, and defendant was going off with John's hat. I called his attention to it, and he came back and got his own. I then ran to the house and told John's wife, and went for Doctor Waddell, and when I got back John was dead."

On cross-examination the witness testified. "We were all working in the new ground when the defendant came up. Count Gleghorn and I were using the ax, and John was piling brush. Defendant came up from a northerly direction, and stopped about ten or twelve feet from Count. Both Count and John were south from him, Count being a little further away. I do not know whether Count threw the ax, or whether he struck with it. When he made this lick, defendant shot him."

"Q. How far from where John was standing with his hand in defendant's collar to where Count lay after he fell?

"A. About three or four feet, I think.

"Q. How came the defendant on the ground?

"A. I don't know unless John threw him; they all fell when he shot.

"Q. Did Count throw the ax before he fell, or after?

"A. Before defendant shot. When he went to make his lick, or throw the ax, defendant commenced shooting. Defendant and John were standing when Count threw the ax. Defendant shot John first, and shot Count as he ran up with the ax. When defendant fired, they all fell, Count falling across defendant's breast.

"Q. How could he fall across defendant's breast and John have his hand in his collar?

"A. I don't know how he fell, but he fell right across his breast. Defendant fired four times. I saw no blood on defendant from licks given him by John." The witness Preston further testified "that he did not tell Will Cantley, when he was catching the mule, that Squire Smith came up and accused these boys of stealing his dog, and raised a difficulty, and killed Count and shot John." He also testified that four shots were fired.

The State, without objection, introduced, in rebuttal, Will Cantley, who stated that Will Preston told him on the day the shooting occurred, while he was trying to catch the mule to go for the doctor, that "Squire Smith accused them of stealing his dog. He came over there and raised it, and John started on him with a pine knot, and Squire shot Count, and then shot John." He also testified, without objection of appellant, that Will Preston stated that only two shots were fired. Other witnesses were called whose testimony tended to contradict the testimony of Will Preston in several particulars.

There were no objections to the court's instructions. The prosecuting attorney, in his opening statement to the jury, said, in speaking of the witness Will Preston, "that he was a witness for the defendant, and that he was under indictment for the killing of Count Gleghorn."

The attorney for the defendant, in his opening argument to the jury, said: "While it is true that Will Preston has been indicted for the killing of Count Gleghorn, yet the evidence will show that he had nothing to do with the killing, and that he has been indicted for the purpose of discrediting his testimony."

The defendant's attorney, in his argument to the jury, discussing the credibility of the witnesses, their interest in the case, etc., said: "While its witness, Will Preston, is indicted jointly with the defendant for the killing of the other man, Count Gleghorn, yet I believe on his trial the proof will show that he had nothing whatever to do with it."

Counsel for the State, in closing his argument, referred to the above argument and statement of the defendant's counsel, and said: "Mr. Bush tells you that he does not believe Will Preston had anything to do with the killing of Count Gleghorn, and that the proof will show it on his trial. I believe when he is tried the proof will show that he is as guilty as the other defendant." To this statement appellant objected and excepted.

Counsel for the State, in his closing argument to the jury, used the following remarks:

"Why the defendant has taken into his hands the law; he makes himself judge, jury and executioner, and says the people be damned. And who said he struck the defendant? It was his friend and accomplice (meaning Will Preston). And, now, gentlemen, what does your verdict in this case mean to Will Preston? It means the probable punishment that you mete out to this defendant." The prosecuting attorney, further discussing the testimony of the same witness, Will Preston, and the fact that that witness had blood on his hands, said: "No, sir; he will have to account for that blood yet." The same attorney, speaking of the testimony of Will Preston, stated the following: "Will Preston testified that Count Gleghorn struck at the defendant with an ax, and the force of the blow carried the ax out of his hands." Further: "And the proof will show in the trial of Will Preston that the shot that killed Count Gleghorn was not fatal." Further in the same speech the prosecuting attorney said: "I believe that all men who commit murder expect to be hung, and this human vulture and demon expects to be hung for it." Further: "Gentlemen, when you return a verdict of less than murder in the first degree in this case, you thrown down the license to everybody in this county to...