Wacaster v. State

• Court: Arkansas Supreme Court
• Writing for the Court: KIRBY, J.
• Citation: Wacaster v. State, 291 S.W. 85, 172 Ark. 983 (Ark. 1927)
• Decision Date: 21 February 1927
• Docket Number: 208
• Parties: WACASTER v. STATE

291 S.W. 85

172 Ark. 983

WACASTER v. STATE

No. 208

Supreme Court of Arkansas

February 21, 1927

[Copyrighted Material Omitted]

Appeal from Garland Circuit Court; Earl Witt, Judge; reversed.

STATEMENT BY THE COURT.

Lee Wacaster, appellant, was indicted, tried and convicted in the Garland Circuit Court for the crime of murder in the first degree for killing Tillman Brown, and his punishment fixed at life imprisonment in the penitentiary, and from this judgment prosecutes an appeal.

It appears from the testimony that there had been some previous trouble and fighting between the deceased, Tillman Brown, and threats made by him against appellant, whose wife was Brown's stepsister; that, on the day of the killing Brown and his wife had driven up to the front of Wacaster's house, and had been talking to Mrs. Wacaster for about twenty minutes when Wacaster came up from the rear in his car, stopped, and then started and drove off around the block, came back, and stopped his car behind Brown's and asked, as one witness said, "Tillman, who told you to come around here?" to which Brown replied, "I am in the street, ain't I, Lee?" Lee replied, "It don't make a damn bit of difference if you are, get out from here." Brown said, "It's a free street and I don't intend to leave until I get ready." Wacaster then went into the house and called Mr. Floyd, a deputy sheriff, on the 'phone, and was heard to say "There is a fellow out here in front of my place, and I have ordered him to leave, and he won't do it. What about it?" Witness then heard him say, "Well, if he don't leave, I will fix it so he will have to be carried out." Wacaster came out of the house, and said "Tillman, I said for you to leave," to which Brown replied, "I don't intend to leave. I didn't come up here for any trouble, but to talk to Florence" (Wacaster's wife). Mrs. Brown then said, "Let's go on," and Mrs. Wacaster said, "No. Don't go; he is just trying to pull one of his old bluffs." Wacaster told him to leave again, and Brown said, "I am in the street, and there is no son-of-a-bitch can make me move."

Wacaster then asked Mrs. Brown to get out, and told Tillman to leave again. Told Mrs. Brown to get out, for he would move him, if he didn't get out, with the car. He moved around inside the fence to where he could shoot without hitting her, and fired, and that's about all, as Mrs. Brown stated. She said her husband had one hand on the wheel and the other in his lap; that Brown was in his shirt-sleeves.

The deputy sheriff stated that Wacaster called him just before the trouble, Sunday afternoon, saying, "There was a man in front of his gate who refused to move," and wanted to know what to do about it. The deputy replied, "Well, bring him on down." He didn't think there was any trouble. Wacaster said, "No, I don't want to have any trouble with him. The man is right in front of my gate." I said, "Well, you have a right to move him if he is on your property, but don't have any trouble." He replied, "Well, if he don't move, you will have to come and get him or me, or both of us." After a little the phone rang again, and Wacaster asked if we wanted him to come on down.

Other witnesses testified that they arrived on the scene while Brown's car was still standing, and that there was a bottle lying on the front seat under the steering wheel, and that the front wheels of the car were about four and a-half feet from the fence, with the back wheels a little further out in the street.

There was other testimony that Brown had said to a witness to whom he was talking when Wacaster passed, "There went a son-of-a-bitch I am going to get sooner or later." He said that Wacaster had been mistreating his wife. This witness repeated the threat to Wacaster.

Another, Miles Conway, stated that he had heard Brown say, on coming out of Wacaster's place of business some months before the killing, to Wacaster, "You son-of-a-bitch, I will kill you sooner or later." He was getting into his car at the time.

Another witness testified that, two or three years before, when he was at work for Wacaster, who had cut his hand, that Brown came and went into the house while witness was cleaning hogs in the yard, and came out with a gun in his hand, and said, "Lee is not here, but that's all right, I will kill the son-of-a-bitch sooner or later."

Two or three other witnesses testified about threats made by Brown against Wacaster. Brown said that if Lee Wacaster mistreated his wife he was going to kill him. Wacaster and his wife had had trouble.

Another witness heard Brown talking to Mrs. Wacaster on the 'phone, and heard Mrs. Wacaster say to him, "It is the same old thing over all the time, just fussing and raising hell all the time."

Defendant stated that he was not related to Brown. After he married Tillman Brown's mother married Mrs. Wacaster's father; that he had trouble with Brown recently before the fatal encounter; that Brown had knocked him in the head when he came back from Colorado, with a piece of pipe he had thrown at him at the slaughter-house, because of the dispute over a right to use a slaughter-pen; that he had had trouble with him over at his, defendant's, blacksmith shop, when he had tried to make Brown stop fighting another man, and he jumped on him, swore that he would kill him, and went home after a gun. "About ten months before the killing he came to my slaughter-pen, and said, 'I understand you have been mistreating Florence again.' I said, 'No, I guess not.' He said, 'You God damn son-of-a-bitch, I am going to kill you; you are going to stop it.' And I said, 'It looks like you would attend to your own business.' And he said, 'I will get you, you son-of-a-bitch,' and he drove off when Mr. Conway came." He was then standing in the door of the slaughter-pen, with his right hand in his coat pocket. He later saw Brown on his front porch, talking with his wife, and when he drove up and saw that it was Brown, he drove on away. This was about a month before the killing. He didn't stop at that time because he had heard the threats Brown had made against him, and he didn't want any trouble. He had been told of Brown's threats by two or three different people; on the day of the killing, about three o'clock, he went by his house to get his saw and some orders. "Stopped when I saw Brown was there, and drove away around a block and a half, and returned in about ten minutes, driving slowly, thinking Brown would be gone before I got back." Said further: "I stopped my car, taking my gun off the seat and went into the yard and said, 'Tillman, who sent for you?' And he said, 'I am here.' I said, 'Well, I don't want you out here now; you get up and go on away from my place.' He said, 'I don't go nowhere; no son-of-a-bitch can't move me.' I said, 'I will call a man and have him come and move you.' He said: 'You or no other son-of-a-bitch can't move me.' I went in and called the sheriff's office. I said: 'Is this you, Floyd?' and he said it was. I said: 'Floyd, there is a man out here at my place and he won't go away, I have had trouble with him.' He said: 'Who is it?' I said, 'Tillman Brown.' He said: 'You go out there and tell him to move; you have a perfect right to move him.' I said, 'I don't want to; I don't want any trouble. ' He said, 'You go out and tell him to move.' I went out and said, 'Now, Tillman, go on away; I don't want you here.' Brown said: 'I don't go nowhere; no son-of-a-bitch can move me.' Now I said: 'Go on, you and your wife move on away from my place; you are not wanted here.' He said: 'You God damn son-of-a-bitch,' and grabbed with his right hand down in the seat, and I fired. I do not know from what position I fired. I do not know where I hit him. I did not get out of my car and tell him to move, and then go back and get my gun. I took my gun to protect myself from any attempt he might make against me, on account of the threats he had made. I saw something between him and his wife, and I thought it was a gun. It was on the seat between him and his wife. I did not change my position, nor did I say, 'Move, woman.' I said for them to move. Mrs. Brown was never in the range of fire. It was never necessary for her to move. I shot him because I thought it was to...