Magness v. State

• Decision Date: 04 March 1899
• Parties: MAGNESS v. STATE.
• Court: Arkansas Supreme Court

Page 554

50 S.W. 554

MAGNESS v. STATE.

Supreme Court of Arkansas.

March 4, 1899.

Appeal from circuit court, Independence county; Richard H. Powell, Judge.

George Magness was convicted of murder in the second degree, and appeals. Reversed.

J. C. Yancey and W. S. Wright, for appellant. Jeff. Davis, Atty. Gen., and Chas. Jacobson, for the State.

BATTLE, J.

George Magness was indicted by a grand jury of the Independence circuit court for murder in the first degree, committed by killing one Joe Owen. He was convicted of murder in the second degree, and his punishment was assessed at 21 years' imprisonment in the state penitentiary.

To sustain the indictment, the state introduced only one witness, who was present when Magness struck the fatal blow. He was Dempsey Freeze, who testified as follows:

"I come into Newark on the 11th day of December, 1897, and met up with Joe Owen there. He was drinking, or drunk, and I commenced at him to go home. I got him as far as the railroad, below Mr. Tom Magness' cotton-seed house. There was a boarding car there, on the side track. And, when we come to the car, we crawled under a part of the car; and this man, Magness, was coming up the track, with a wrench in his hand. Just before he got to us, Owen fell down. Magness remarked: `He is pretty full, ain't he?' I said, `No; not much.' Owen said, `If you don't like me, you don't have me to kiss,' The negro said, `What's that?' and Owen said, `Go to hell,' and Magness turned back, and struck Owen on the side of the head with the wrench. I was helping Mr. Owen up, — he had fell down; and that was all that was said. I had Owen about half up, and he was making no effort to strike defendant. After defendant struck him, he turned and went the other way, up the track."

On cross-examination he further testified that he saw John Miller, a short time before he and Owen went to the railroad track, in front of Bud Sturdevant's drug store, but did not tell him that "no d____d African could keep him off the track," and never had any such conversation with him.

The evidence adduced in the trial by the state showed that Owen died within a few days from the effects of the blow struck by Magness.

The defendant offered to prove by John Miller that he met Freeze, about 15 minutes before he heard that Owen was killed, near Bud Sturdevant's drug store; that Freeze hit him a glancing lick with his shoulder, and said, "No African can butt me off the track." But the court refused to permit him to do so, and defendant excepted.

The defendant is a negro. He adduced evidence tending to prove that Freeze and Owen were under the influence of intoxicating liquor at the time they approached him; that they denounced him as a "black son of a bitch"; that Owen advanced towards him, and, threatening to kill him, placed his hand to his pocket, as if in the act of drawing a weapon, and, while Owen was in that position, Magness struck him, knocking him down, and, while Owen was down, Freeze took something from his (Owen's) pocket, and placed it in his own.

The defendant asked, and the court refused to give, the following instruction: "The jury are instructed that if you believe from the evidence in this case that the defendant was first assaulted by deceased and his comrade, with a murderous intent, defendant was not bound to retreat, but might stand his ground, and, if need be, kill his assailant, and, if he struck the fatal blow believing that this was the intention of his assailants, that he was justifiable."

But the court modified and gave it as follows: "You are instructed that if you believe from the evidence in this case that the defendant was first assaulted by deceased and his comrade, with a murderous intent, defendant was not bound to retreat, but might stand his ground, and, if need be, kill his assailant, and, if he struck the fatal blow believing that such was the intention of his assailants, and the acts and conduct of the deceased were such as to induce a reasonable person to believe that they had a murderous intent, then he was justifiable."

The defendant also asked, and the court refused to give, the following instruction: "You are instructed that, to justify a killing in self-defense, it is not essential that it should appear to the jury to have been necessary. It is sufficient, if the defendant honestly believed, without fault or carelessness on his part, that the danger was so urgent and pressing that the killing was necessary to save his own life, or prevent great bodily injury."

And the court modified and gave it as follows: "You are instructed that, to justify a killing in self-defense, it is not essential that it should appear to the jury to have been necessary. It is sufficient, if the defendant honestly believed, without fault or carelessness on his part, that the danger was so urgent and pressing that the killing was necessary to save his own life, or prevent great bodily injury, and the acts of the deceased were such as to induce a reasonably prudent person to believe the necessity existed."

The court stopped the counsel of the defendant in his argument before the jury after the close of the testimony, when he was referring to the fact that "the defendant was a negro, and that this fact should not be weighed against him by the jury," and told the jury that the argument was improper, and that "they had nothing to do with the question as to whether the defendant was a negro or not, and that they must try him as they would a white man."

The appellant, Magness, insists that the judgment of the trial court should be reversed, and a new trial granted to him, for the following reasons:

(1) Because the court erred in excluding the testimony of John Miller.

(2) Because the court erred in refusing to give the instructions as asked by him, and in modifying them as given.

(3) And because the court erred in interfering with the argument of defendant's counsel.

His first contention is correct. The testimony of Miller should have been admitted. It was competent to impeach the credit of Freeze as a witness, and to show that he was biased against the defendant by prejudice against his race, and to strengthen the testimony of appellant's witnesses by showing that he was in that condition or "frame of mind" that their testimony, if true, shows he was in when they testified that he participated with Owen in the attack upon Magness by villifying him on account of his race.

The court erred in modifying the instructions asked by the defendant, and copied in this opinion, in the manner it did. Our statutes (Sand. & H. Dig. § 1676) say, "In ordinary cases of one person killing another in self defense, it must appear that the danger was so urgent and pressing that, in order to save his own life, or to prevent his receiving great bodily injury, the killing of the other was necessary." But to whom must it appear that danger was urgent and pressing?

In Clark's Criminal Law it is said: "The authorities are overwhelmingly to the effect that it need only be apparently imminent, and that whether or not it was so in any particular case is to be determined by looking at the circumstances from the standpoint of the accused; taking into consideration the relative strength of the deceased and his assailant, and all the other circumstances. If to the accused there was a reasonably apparent necessity to kill, to save himself, he will be excused, though to some one else there might not have seemed to be any such necessity, and though in fact there was no such necessity. Most of the cases are to the effect that the circumstances must have been such as to excite the fears of a reasonable man, and the accused must have acted as an ordinarily cautious and dangerous [prudent] man would have acted, or, in other words, there must have been a reasonable appearance of danger, or reasonable grounds to believe there was danger. But the court and jury must look at the circumstances from the standpoint of the accused. A coward will fear danger unreasonably, and the mere fear of a coward, without reason therefor, is not enough. A person must not be guilty of negligence in coming to the conclusion that he is in danger." Clark, Cr. Law, p. 152.

In McClain on Criminal Law it is said. "The person assailed, in acting upon appearance, and taking the life of his fellow man, does so at his peril, and will not be excused unless the circumstances are such as would induce a reasonable man to believe it necessary to save his own life, or save himself from great personal injury. But the reasonableness of the apprehension is to be judged from the standpoint of the defendant at the time, and not from that of the jury. By this is not meant, however, that the jury should ask themselves the question what they would have done under the circumstances surrounding the accused at the time, but that, as sworn officers of the law, they should look at all the circumstances surrounding the accused, as they appeared to him, and ask themselves: (1) Did the accused believe himself in imminent danger? and (2) were there circumstances such as would justify such a belief in the mind of a person of ordinary firmness and reason?" 1 McClain, Cr. Law, § 306.

Wharton, in his work on Criminal Law, says: "It is conceded on all sides that it is enough if the danger which the defendant seeks to avert is apparently imminent, irremediable, and actual. But apparently as to whom? * * * The answer given by several of our courts to this question is that, if a `reasonable man' would have held that the danger was apparent, then the danger will be treated as apparent. * * * But who is the `reasonable man' who is thus invoked as the standard by which the `apparent danger' is to be tested? What degree of reason is he to be supposed to have? If he be a man of peculiar coolness and shrewdness, then he has capacities which we rarely discover among persons fluttered by an attack in which life is assailed; and we are...