Green v. State

• Decision Date: 19 January 1889
• Parties: GREEN v. STATE. JONES v. STATE. MITCHELL v. STATE
• Court: Arkansas Supreme Court

10 S.W. 266

51 Ark. 189

GREEN v. STATE.

JONES v. STATE.

MITCHELL v. STATE

Supreme Court of Arkansas

January 19, 1889

APPEALS from Clark Circuit Court, R. D. HEARN, Judge.

Judgment affirmed.

A Curl, for appellants.

It is manifest from the instructions given and refused by the court, that it held to the idea that an intentional killing when not committed under justifiable circumstances, is, per se, murder in the first degree. Is this law? We think not. There is wanting the elements of deliberation and premeditation, and the intent to kill does not, necessarily, imply either. Deliberation signifies a measurable degree of calmness; premeditation means meditation upon before hand; yet the court said: "If at the time the blow is struck the intent to take life exists, the killing is murder in the first degree."

This is error. Mansf. Dig., sec. 1521; Whart. Law of Hom., p. 368. The killing must be (1) willful, (2) deliberate, and (3) premeditated. Ib., 368.

See, also, 7 Hump., 479-494; 1 Lea, (Tenn.) 285; 64 Ind. 56-60; 3 Kan. 450-482; 66 Mo. 13; 67 Id., 594.

Deliberation and premeditation are necessary ingredients in the crime of murder in the first degree. 11 Ark. 455; 35 Id., 585; 37 Id., 238; 40 Id., 511.

2. The only testimony corroborative of, or that connects appellant with, the killing is that of Bragg and Jim Mitchell. Bragg was one of the parties under indictment, and Mitchell is the only witness that corroborates Bragg. They were both accomplices, and one could not corroborate the other, Besides, their testimony is contradictory; one of them lied, and probably both.

3. The verdict is contrary to the evidence.

Dan W. Jones, Attorney-General, for appellee.

The evidence in this case, we think, shows a clear case of guilt, and the court properly charged the jury.

Instructions 1 and 2 are taken from the statutes. Mansf. Dig., secs. 1516 to 1522 inclusive.

Instruction number 3 was properly given. Green v. State, 38 Ark. 317.

Instruction number 4 properly defines the doubt upon which acquittal should be based. Palmore v. State, 29 Ark. 248.

Instruction number 5 is based upon the statute. Mansf. Dig., secs. 1505-1506; 37 Ark. 274.

However, it is useless to argue any of the instructions given at the instance of the State, save 7, 8 and 11, for no exception was saved to any other.

Instruction number 7 is supported by McAdams v. State, 25 Ark. 405; Wright v. State, 42 Ark. 94; Palmore v. State, 29 Ark. 248.

We presume the objection to instruction number 8 is based upon the concluding part of it. We think it is clearly the law. Howard v. State, 34 Ark. 433.

Instruction number 11 must be taken in connection with the other instructions, and when so taken the jury were properly instructed. Dunahoe v. Williams, 24 Ark. 264.

Instruction "1 A" was properly modified by the trial court. Casat v. State, 40 Ark. 511.

Instruction "2 A," asked by defendant, was properly modified by the court. Mansf. Dig., secs. 1519, 1522, 1532, 1533.

The court properly instructed the jury as to a conviction on the testimony of an accomplice, and what it takes to constitute an accomplice in instructions numbers 12 and 13.

Now, there is no evidence to show that Mitchell was an accomplice in any sense of the word, and a legal conviction might well be had upon the evidence of him and the witness Bragg.

We think this court has fully settled all questions raised on this point in the case of Melton v. State, 43 Ark. 371. The verdict is amply sustained by the evidence.

OPINION

BATTLE, J.

Willis Green, Dan. Jones, Anderson Mitchell and others were jointly indicted for the murder of Arthur Horton. They severed their trials, and Green, Jones and Mitchell were separately convicted of murder in the first degree. They filed separate motions for new trials, which were denied, and, severally, appealed to this court. One of the grounds of Green's complaint is, the court did not properly instruct the jury, in his trial, as to the intent necessary to constitute murder in the first degree.

In order to constitute the killing of a human being murder in the first degree, there must a specific intent to take life formed in the mind of the slayer before the act of killing was done. It is not necessary, however, that the intention be conceived for any particular length of time before the killing. It may be formed and deliberately executed in a very brief space of time. If it was the conception of a moment, but the result of deliberation and premeditation, reason being on its throne, it would be sufficient. The law fixes no time in which it must be formed, but leaves its existence as a fact to be determined by the jury from the evidence. Bivens v. State, 11 Ark. 455; McAdams v. State, 25 Ark. 405; McKenzie v. State, 26 Ark. 334; Fitzpatrick v. State, 37 Ark. 238; Casat v. State, 40 Ark. 511; State v. Wieners, 66 Mo. 13; Com. v. Drum., 58 Pa. 9; People v. Majone, 91 N.Y. 211; Bishop Cr. Law, [7th Ed.] sec. 728; Wharton Cr. Law, [9th Ed.] sec. 380.

As to what is necessary to constitute murder in the first degree, the court charged the jury, in the trial of Green, as follows:

"All murder which shall be perpetrated by means of poison or by lying in wait or by any other kind of wilful, deliberate. malicious and premeditated killing * * * shall be deemed murder in the first degree."

"If the jury believe from the evidence beyond a reasonable doubt that the defendant, either by himself or in connection with others, inflicted the wounds or injuries on deceased, Horton, as charged in the indictment, with the intent, formed in the mind at the time of the injuries, to take deceased's life, and that such wounds or injuries did cause the death of deceased, they may convict of murder in the first degree."

"An unlawful act, coupled with malice and resulting in death, will not of itself constitute murder in the first degree, but in order to constitute murder in the first degree, the killing must have been intentional, after deliberation and premeditation."

In order to constitute a homicide murder in the first degree according to these instructions, the killing must have been willful, deliberate, malicious and premeditated; there must have been an intent to take the life of the deceased in the mind of the slayer at the time the act of killing was done; and the intent must have been formed after deliberation and premeditation. This is, in effect, telling the jury that the intent must have preceded the killing. This is the only construction which can be fairly placed upon these instructions, and, construed in that way, they are correct.

Appellants insist that the verdicts against them are contrary to law and evidence. The evidence shows that they and others banded together to take Arthur Horton from his room and whip him; that, during the night of the 21st of May, 1888, they entered the room in which he was sleeping, and forcibly took and carried him away for a short distance and whipped and beat him most cruelly. On the next day his dead body was found wrapped in an old quilt, and near it a number of switches, or small sticks, with "frazzled ends." The skull was fractured; there was a severe cut across the face; three of his ribs were broken down; the front of the body was lacerated with switches; and one arm and the collar bone were broken. His death was, doubtless, caused by these wounds. There was evidence to sustain the conclusion of the juries, that they were inflicted by those who had taken him out with the avowed purpose of whipping him. But there was no evidence to show who struck the fatal blow. But this does not relieve appellants of responsibility for the crime thereby committed. Having combined to commit a crime, they are responsible for the crime committed in the prosecution of their common design.

In Wharton's Criminal Law the author says: "All those who assemble themselves together, with an intent to commit a wrongful act, the execution whereof makes probable in the nature of things a crime not specifically designed, but incidental to that which was the object of the confederacy, are responsible for such incidental crime. * * * It is not necessary that the crime should be a part of the original design; it is enough if it be one of the incidental probable consequences of the execution of that design, and should appear at the moment to one of the participants to be expedient for the common purpose. Thus when A and B go out for the purpose of robbing C, and A, in pursuance of the plan, and in furtherance of the robbery, kills C, B is guilty of the murder. In such cases of confederacy all are responsible for the acts of each, if done in pursuance of, or as incidental to, the common design." 1 Vol., [9th Ed.] sec. 220; Reg. v. Jackson, 7 Cox Crim. Cas. 357.

Mr Bishop says: "A man may be guilty of a wrong which he did...