Smith v. State

Decision Date12 May 1894
Citation26 S.W. 712
PartiesSMITH v. STATE.
CourtArkansas Supreme Court

Appeal from circuit court, Benton county; Edward S. McDaniel, Judge.

Bud Smith was convicted of voluntary manslaughter, and appeals. Reversed.

James P. Clarke, Atty. Gen., and Chas. T. Coleman, for appellee.

BATTLE, J.

Bud Smith was indicted for voluntary manslaughter, committed by killing John Boyd at Sulphur Springs, in Benton county, in October, 1892. "The evidence adduced at his trial tended to show that the deceased was drinking, and that as he came out of a saloon he gave a `whoop.' Sharp, the town marshal, and Poindexter, his deputy, came to where he was, and asked who did the hallooing. The deceased replied that it was he, and they arrested him, and a scuffle ensued," in which the deceased succeeded "in getting loose." When he had freed himself from the hands of the officers, he immediately attacked the marshal, and knocked him down; and a friend, coming to his assistance, felled the deputy. As soon as the marshal recovered from his fall, he fled towards and around a crowd which was looking on, the deceased following. The defendant was then standing on the outskirts of the crowd, whittling with a knife. Sharp, the marshal, in his flight, approached him, and said, "I deputize you to help me arrest Boyd." The defendant made no reply, but moved a step or two towards the marshal, and stopped. The deceased ran up to them with a club or gas pipe, about 20 or 24 inches long, in his hand, and asked the defendant what he had to do with it, and, without waiting for a reply, struck him on the head with the club or gas pipe, and knocked him down, and, as he partially recovered, and before he was erect, struck at him again, and the defendant threw up one hand to ward off the blow, and as he did so stabbed the deceased with a pocketknife in the other. Only one wound was inflicted, and from that the deceased died on the third day. Evidence was also adduced tending to prove that the defendant had never seen the deceased before his arrest by the marshal, and that the deceased threatened to kill him when he was attacking him.

The court instructed the jury, over the objections of the defendant, as to what constitutes murder in the first and second degrees, and defined express and implied malice; and, among others, gave the following instructions to the jury, over the objections of the defendant:

"In order to justify the killing on the grounds of self-defense, it must appear from the evidence that the circumstances surrounding the defendant at the times were sufficient to excite the fears of a reasonable person, and that the defendant really acted under the influence of such fears, and not in a spirit of revenge. It must appear that the danger was not only impending, but was so urgent and pressing that, in order to save his own life, or to prevent his receiving great bodily injury, the killing of John Boyd was necessary. It must also appear from the evidence, in order to justify the killing, that the defendant had employed all reasonable means within his power and consistent with his safety to avert the necessity of taking life."

It also gave the following instruction: "The jury are instructed that if the deceased, Boyd, willfully or maliciously disturbed the peace and quiet of the town or village or neighborhood of Sulphur Springs by loud or unusual noises, or by abusive, violent, obscene, or profane language, and such disturbance was committed in the presence of a peace officer, then such peace officer would have authority to arrest him, and summon others to assist him in making such arrest. In making an arrest for the disturbance of the peace or other misdemeanor, or in attempting to prevent the escape of the person arrested, the officer or person acting under him can exert such physical force as is necessary on the one hand to effect the arrest by overcoming the resistance he encounters, or, on the other hand, to subdue the efforts of the prisoner to escape; but he cannot in either case take the life of the accused, or even inflict upon him great bodily harm, except to save his own life, or to prevent great bodily harm to himself."

The defendant asked and the court refused to instruct the jury that a peace officer, or person summoned to assist him, in making an arrest of a criminal for a disturbance of the peace or other misdemeanor, or in attempting to prevent the escape of the person arrested, is not required to retreat from resistance made to efforts to compel submission to arrest, but may use such force as is apparently necessary to compel such submission, and may, if, in an effort to do so, he is assaulted by the criminal under such circumstances as lead him to believe he is in danger of losing his life or receiving a great bodily injury, repel force with force to the extent of taking the life of the criminal.

Upon the submission of the cause to them the jury found the defendant guilty of voluntary manslaughter, and assessed his punishment at two years' imprisonment in the penitentiary. He filed a motion for a new trial, and stated as the grounds of the same, among other things, that one of the jurors had formed and expressed an opinion as to his guilt or innocence of the crime whereof he was accused, before he was selected to try him; that the court erred in giving instructions to the jury over his objections, and in refusing to give others asked for by him; and that the jury received evidence after they retired to consider of their verdict. To sustain the last ground the affidavit of one...

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2 cases
  • State v. Smith
    • United States
    • United States State Supreme Court of Iowa
    • June 6, 1905
    ...Lea, 720, 31 Am. Rep. 626;Skidmore v. State, 2 Tex. App. 20;U. S. v. Clark (C. C.) 31 Fed. 710;Head v. Martin (Ky.) 3 S. W. 622;Smith v. State (Ark.) 26 S. W. 712, s. c. 43 Am. St. Rep. 20;State v. Moore, 39 Conn. 244;Dilger v. Com. (Ky.) 11 S. W. 651. To this rule there are some exceptions......
  • Pratt v. State
    • United States
    • Supreme Court of Arkansas
    • May 13, 1905
    ...say so by your verdict." The appellant complains of the modification, but the doctrine asserted is sustained expressly by Smith v. State, 59 Ark. 132, 26 S.W. 712; Magness v. State, 67 Ark. 594; Elder v. State, 69 Ark. 648, 65 S.W. 938. 3. The only other question presented is the alleged im......

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