HIGBEE, C.
On February 24, 1925, the defendants were convicted in the circuit court of Dunklin county for murder in the second degree for shooting and killing Ernest White, at the village of Kirk, in said county, on the evening of September 23, 1924. In accordance with the verdict of the jury, Davis was sentenced to the penitentiary for a term of 15 years and Lewis for a term of 10 years, and they appealed, without bond.
The defendants entered a plea of not guilty. Davis, however, admitted that he shot and killed White, but justified the act on the ground of self-defense.
Dr. J. T. Rigdon, coroner of Dunklin county, testified that he held an inquest on the body of the deceased, Ernest White, on the night of September 23, 1924; that he arrived at the village of Kirk, 4 miles east of Kennett, the county seat, at about 10 p. m., and found the body on the porch of Brewer's store. White had been shot in the breast with a 38-caliber pistol, the shot entering between the first and second ribs. The shot would cause death within 5 minutes by internal hemorrhage. There were powder burns on White's clothing, indicating that he was within 10 feet of the pistol when he was shot. There were no other wounds of any importance on the body.
J. C. Humphreys testified:
"I came into Kirk about 4 p. m., on the day of the homicide; went to the pump to get a drink. Davis was on the railroad hollering around, and said he was going to kill somebody. Tom Lewis hollered at him and said, `Oh, you're a liar; you're not going to do nothing.' Lewis said anybody that would keep a bunch like that around him ought to kill the whole outfit. He used no names."
Miss Bessie Smith:
"I live at Kirk. I saw the defendants at dinner time; heard no threats then; late in the afternoon I saw them together. Davis said he intended to kill the whole outfit; he used no names. They were on the railroad not far from Brewer's store. Lewis said nothing at the time."
Lester Buchanan, aged 16, testified:
"I was at Brewer's store about 4 or 5 o'clock in the afternoon of September 23, 1924. Tom Lewis and Walter Davis were by a box car on the switch. They said, `We are going down here and kill the whole White outfit.' Lewis said it, and Davis said, `Yes, we will.' The next time I saw them was about 6 o'clock; they were going home. They had a shotgun and a big pistol, nickel plated. [Here witness identified the pistol.] About dark I went with Bill Oliver where he was staying and come back and hears Lewis and Davis down there by the railroad, and we goes down by a log pile 25 or 30 steps from the store. They were south in front of us on the railroad talking to Ern White, Tom Lewis stuck the shotgun in Ern White's stomach and says, `Give us your gun or we will kill you.' They took a gun off him and Tom says, `That's all we want; you can go; we are friends to you and your father,' and Ern starts home, and Davis calls him back and says, `Ern, I'm not through with you yet,' and Davis pulls out his gun, this 38-caliber, and shoots him, and Ern turns and runs five and a half rails and falls in front of the store. White was about 6 steps from Davis when Davis fired the pistol. Ern hollered for help. Lewis and Davis says, `Come out here, all of you G____ d____ Whites, and we will kill every one of you.' They then takes the guns and shoots them. I don't know how many times. This was in Dunklin county. They turned and ran west towards home on the railroad. Davis was staying at Tom Lewis' place."
Cross-examination:
"My testimony was taken down and signed by me at the preliminary. I didn't detail what I heard the defendants say between 4 and 5 o'clock because I didn't want to tell it."
B. F. Brewer testified:
"The defendants passed my house on the railroad on the day of the killing, about 1 p. m. Davis seemed to be drunk. He said, `I'll kill every G____ d____ s____ o____ b____ of the Whites and throw them in the ditch.' About 4 in the afternoon I saw them on trestle 81, about 300 feet from my store. Davis had a 38-pistol in his hand. About 7:35 that evening he said he was going home and get his gun and come back; that was about 25 minutes before the killing. When they left, I closed and locked the door. I heard the shots fired; first a pistol shot; then in a minute I heard the shotgun about four times. It was about 30 minutes until I knew a
man had been killed. I saw Ernest White lying on the railroad track in front of my store. I heard no outcry when he was shot. He was married and lived a quarter of a mile west of my store down the railroad. The shots were fired about 8 o'clock. Davis lived with Lewis west of my store. I know the general reputation of Lester Buchanan for truth and veracity and morality in that community; it is about half good and half bad; he is truthful. The killing occurred west of my store."
Bill Brumley testified:
"I live in Kirk; was at home sick the night Ernest White was killed. The shooting was at 8:05. Lewis came to the porch and wanted to get a bushel of corn, and I told him to help himself. He had a shotgun. I told him to go home and be peaceable; there was liable to be trouble. I went back into the house and I heard White and Lewis in an argument by my fence; it was dark. I opened the door and told them not to have trouble at my door, and they walked out on the railroad track. Davis was on the railroad track. I knew his voice. There was three of them on the track; they were talking and stood there 5 or 10 minutes, and Mr. White started down the track and walked 15 or 20 steps and Davis called to him and says, `If you don't think I'm a friend of yours and your father, I'll go home with you and prove that I am,' and White said, `Come on.' Davis went to where he was, and they started off together, and I went in the house, and about that time I heard 1 shot, and in 2 or 3 minutes I heard 4 with a shotgun, and then 5 followed with a revolver, and in about 10 minutes there was 3 shots fired, it seemed like 75 or 100 yards away, east about 81 trestle. I was in the house and heard no outcry after I heard the first shot. After the shooting was over, I heard Mr. Lewis say, `Did you get his gun?' and Davis said, `Yes; I got his gun and mine too.' And he said, `Hurry up; come on and let's go.'
"Q. To refresh your memory, did Mr. Lewis say, `Come on, all you White sons of bitches, I'll kill you all?' A. That was 3 or 4 minutes after the shooting. Mr. Davis had done returned to where Lewis was at that time. They stood there on the track 3 or 4 minutes and Mr. Lewis said, `Come on all you Whites and we'll kill all of you.'"
Cross-examination:
"My house is 36 steps from the railroad. I heard two men arguing, and I asked them to break away. From the voices it was Ernest White and Mr. Lewis. I wasn't in the preliminary. I talked to you [Mr. Jones] and Henry Walker [defendant's counsel] about the case and detailed what occurred in front of my house. I don't remember that Ernest put his pistol in Tom Lewis stomach and that Lewis asked Ernest what he meant, `Take that gun off me.' Both men were pleading. Ernest said Lewis had mistreated his father. Lewis asked if he didn't think he was his friend, and he [White] said: `You ought to be. I've been nice to you and kind to you.' I asked them 10 or 12 times to go away and not have any trouble, and they both said they would go. I told you and Mr. Walker that from the way Mr. Lewis and him was arguing they both had guns and both were angry. Before the killing, two men come down and hid behind them logs right square in front of my door, and I didn't feel like being out there."
Mr. Donaldson, sheriff, and Mr. Billings, prosecuting attorney of Dunklin county, acting on some information they secured on the night of the homicide, drove in a car towards Piggott, Ark., overtaking and arresting the defendants while the latter were walking on the railroad from Kennett to Piggott about 3 miles east of Piggott.
Before arresting defendants, they heard Davis say to Lewis:
"We will get to Piggott and get a freight train to Pine Bluff. I know all the ropes, and we will hit her from there to the border."
Donaldson testified:
"We halted them and told them to throw up their hands, and Lewis threw up his hands, and Davis threw up one of his hands and reached for his gun with the other and threw it out on one side. [Here witness identified the gun.] Lewis had a German Lueger 30 on him. Billings told them if they made any statements they would be used against them. Davis said he got into a scuffle with Ernest White and in the scuffle, in trying to take Ernest's gun from him, the gun went off and he was killed with his own gun, and Lewis said: `That's right, that's how it happened.' After we got to Piggott, Davis says: `I'll tell the truth about it. I killed him with my gun and Tom didn't have anything to do with it.' Davis kept talking and said he was going to plead guilty and tell his whole story, exactly how it occurred, and take his time. Lewis insisted the only connection he could have with the case was as a witness."
Cross-examination:
"In my testimony at the preliminary I said Davis said: `I had to do it; it was his life or mine.' When we found it was his gun that had been fired, he says: `I'm going to tell the truth. I killed him, and it was either his life or mine.' He said he took White's gun away from him and killed him. Lewis denied he fired the shotgun, but claimed the shotguns were fired by somebody at the side of them. The defendants said they were fired on after the killing."
J. V. Billings, the prosecuting attorney, corroborated the sheriff's...
