Gulley v. State , 201 Ark. 744 ( 1941 )

Appellant was convicted of the crime of murder in the first degree, for the shooting and killing of Louis White, on Sunday, September 15, 1940, and his punishment fixed at death by electrocution.

By this appeal he challenges the sufficiency of the evidence to sustain a conviction of this degree of murder, and we agree with him in this contention. All the parties are Negroes.

The facts are that sometime in the afternoon of Sunday, September 15, 1940, the deceased, Louis White, called at the home of Clint Williams to cut his hair. After being there about an hour, Clint saw appellant coming and told deceased this fact. Deceased went out, got on his mule and said, "I'll go on over here where the other boys is at," meaning the home of James Williams, which he did. Appellant came to Clint's house and remained about ten minutes, then left for the home of James Williams. As he was leaving Clint said to him, "You all been into it once, don't go over there and get into it again," whereupon appellant replied, "I won't." About ten or fifteen minutes later, appellant came back by Clint's home. What Clint had reference to in this advice to appellant was the fact that appellant and deceased had an altercation about a year before in which deceased had shot appellant.

The other witnesses for the state who were at the scene were Sammie Norris, Edward Brooks, and James Williams. Their testimony shows that deceased came to the home of James Williams, about a quarter of a mile from Clint's home, riding a mule; that he hitched the mule, went into the house where James was shining his shoes and had been there about ten minutes, when Brooks and Norris saw appellant coming; that when he arrived Norris said something to him and he made some reply, walked up on the porch to the door of the room where deceased and James were, pulled out his gun and fired two shots, killing deceased. Neither of these witnesses knew what White was doing, but James informed White that appellant was coming. It is undisputed that when deceased fell he had a pistol in his hand, but none of the witnesses for the state knew when he drew it, whether before or after appellant fired. James testified that appellant walked off the porch and left after the shooting and that he, witness, asked him, "Gulley, what's the matter," and he said, "He shot me. Tell the boys I done it." On the other hand, appellant testified that he went to James Williams' home to talk to him and to see his sick wife; that when he got up on the porch, he looked in and saw deceased; that when deceased saw him, he, deceased, reached for his gun and he beat him to the draw and shot him; that deceased had his gun in his hand when appellant shot him. He also testified that deceased had shot him about a year before, but that they had had no trouble in the interim.

In order to constitute murder in the first degree, the killing must be wilful, deliberate, malicious and premeditated. Section 2969, Pope's Digest. In other words there must be in the mind of the accused a wilful, deliberate, malicious and premeditated specific intention to take life. We think the evidence falls short of showing beyond a reasonable doubt that appellant went to James Williams' home with the intention of killing Louis White. He told Clint Williams he would not do so, and all the proof shows that deceased had his pistol in his hand when he fell. None of the state's witnesses knew when he drew it, or when he attempted to draw it, but appellant says he attempted to do so when he, appellant, looked in the door.

We think this evidence insufficient to support a verdict and judgment in excess of murder in the second degree, with a penalty of twenty-one years in the state Penitentiary. The judgment will be modified to this extent, and as thus modified will be affirmed.

SMITH, J., dissents.