Smith v. State, 3991.

• Decision Date: 13 July 1936
• Docket Number: No. 3991.,3991.
• Parties: SMITH v. STATE.
• Court: Arkansas Supreme Court

Page 1

96 S.W.2d 1

SMITH v. STATE.

No. 3991.

Supreme Court of Arkansas.

July 13, 1936.

Appeal from Circuit Court, Drew County; DuVal L. Purkins, Judge.

Willie Smith was convicted of first-degree murder, and he appeals.

Affirmed.

Sam W. Trimble and Dave Witt, both of Little Rock, for appellant.

Carl E. Bailey, Atty. Gen., and Guy E. Williams, Asst. Atty. Gen., for the State.

BUTLER, Justice.

Sampson Lee and his wife, Emaline Lee, two aged negroes, were living in the southeastern part of Drew county, Ark., on January 16, 1936. Shortly after dark on the evening of that day, nearby neighbors were attracted to their cabin and, on entering, found Emaline Lee lying dead on the floor and Sampson Lee wounded and bleeding. The furniture of the room was in disorder, a trunk was open and its contents scattered, dresser drawers pulled out, and the room in a general state of confusion. On an examination of the body of Emaline Lee it was discovered that her skull had been crushed by the impact of some blunt instrument. A strip of heavy cloth was found lying near her head which might have been used for the purpose of strangulation or as a gag. Also there was a heavy piece of wood near the body. Three negro men were afterward arrested — Willie Smith, the defendant, Beverly White, and Farlander McCormick — and on the 18th day of February, 1936, the grand jury of Drew county returned an indictment charging them with the murder of Emaline Lee. The trial of Willie Smith, the appellant, was set for February 26, 1936, a day of the regular February term of the Drew circuit court. On that day, appellant moved for a continuance, which motion was overruled, and the trial proceeded, resulting in a verdict of guilty of murder in the first degree and a judgment fixing punishment at death.

The errors assigned as grounds for reversal and argued by appellant's counsel are: (1) The refusal of the court to grant a continuance; (2) the giving of instruction No. 1 requested by appellee; and (3) the refusal to give instruction No. 9 requested by the appellant. There is little, if any, conflict in the testimony; the appellant contenting himself with the introduction of only one witness who merely testified as to appellant's age, the only question about which there is any dispute. This witness was appellant's brother, Otham Smith, who testified that appellant was born on July 16, 1917. The sheriff testified on rebuttal that appellant had told him he was twenty-five years old.

The evidence is to the effect that the appellant was a stranger in the community where the murder was committed; that he was seen first on the afternoon of the murder a mile or two from Sampson Lee's home. This testimony was given by a negro woman who identified Willie Smith at the time of the trial and stated that he had approached her house, requested a drink of water which was given him, and left going in the direction of the home of Sampson and Emaline Lee. Sampson Lee testified that he had been drawing a pension for many years; that he would bring the money home and give it to his wife, who would take charge of it; that the last time they counted the money, in December, 1935, it amounted to $2,700. He testified further that late in the afternoon of January 16, 1936, appellant appeared at his home. He described the appellant on the witness stand and pointed out Willie Smith as the one who came to his home. He stated that the boy appeared to be about 21 or 22 years of age and looked as if he had not done much rough work, but was "mighty cunning and spunctious, telling plenty tales that no person of good judgment would pay any attention to"; that he told witness he had come from St. Louis to let witness know that his son, Joe, had been killed and to find out what disposition should be made of the body; that appellant stayed on until it was getting dark and, when told that he would have to go, left the house and disappeared for a short time; that he reappeared after dark, was again admitted, but finally went out and almost immediately returned accompanied by two other men; that they forced an entrance and came into the house together; that appellant attacked witness, and his wife, Emaline, began "making such a big fuss this little fellow (meaning appellant) told this big shouldered fellow and this tall fellow to stop that woman from making that noise. In a few minutes — my wife — she stopped making that noise"; that one of the three held witness and appellant opened the trunk, and, continuing the search, found money under the bed tick; that as soon as the money was found, appellant and his companions left.

The sheriff testified that he recovered a considerable part of the money — something over a thousand dollars. The evidence as to where and under what circumstances the money was found is obscure. Part of it, however, seems to have been taken from the person of appellant, who was arrested in Monroe county and delivered to the sheriff of Drew county by the sheriff of Monroe county. After appellant was brought back to Drew county, he confessed to the sheriff of that county that he had taken part in the robbery when Emaline Lee was killed. This confession was freely and voluntarily made. The sheriff and one of his deputies testified as to this confession and as to its voluntary nature, which...