Smith v. State
Decision Date | 12 May 1894 |
Citation | 26 S.W. 712 |
Parties | SMITH v. STATE. |
Court | Arkansas 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.
Bud Smith was indicted for voluntary manslaughter, committed by killing John Boyd at Sulphur Springs, in Benton county, in October, 1892. 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:
It also gave the following instruction:
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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State v. Smith
...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......
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Pratt v. State
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