Bailey v. State

• Decision Date: 12 July 1943
• Docket Number: 4307
• Citation: 173 S.W.2d 1010,206 Ark. 121
• Parties: Bailey v. State
• Court: Arkansas Supreme Court

173 S.W.2d 1010

206 Ark. 121

Bailey v. State

No. 4307

Supreme Court of Arkansas

July 12, 1943

Appeal from Pulaski Circuit Court, First Division; Gus Fulk, Judge.

Affirmed on Condition.

Paul E. Talley, for appellant.

Guy E. Williams, Attorney General, and Earl N Williams, Assistant Attorney General, for appellee.

McFaddin J. The Chief Justice, and Mr. Justice McHaney and Mr. Justice Holt concur in the final resached. Mr. Justice Smith and Mr Justice Knox dissent from the final result reached. The Chief Justice, and Mr. Justice McHaney and Mr. Justice Holt concur in part. Mr. Justice Smith and Mr. Justice Knox dissent in part. McHaney, J., dissenting. Mr. Justice Holt concurs in the views here expressed. The Chief Justice concurs except as to the expression that the facts would justify a charge of murder in the first degree.

OPINION

McFaddin, J. The Chief Justice.

Appellant was convicted of murder in the second degree and sentenced to five years in the penitentiary, and has brought this appeal. The victim of the homicide was Dr. P. A. Ritchie, Jr., of North Little Rock, Arkansas.

The Facts.

Appellant was in Arkansas on a visit from another state, and while in an intoxicated condition, drove his car to and in North Little Rock. About 11:00 p. m. on November 9, 1942, deceased, Dr. P. A. Ritchie, Jr., and other members of his family at the Ritchie home in North Little Rock heard a crash and rushed out to the street to learn that some one had driven into the Ritchie car parked along the curb. Deceased with his brothers, Angelo Ritchie and Elmer Ritchie, gave chase to the escaping driver, who was the defendant herein. They trailed the defendant across the Broadway Bridge into Little Rock and overtook him at the stop light at Broadway and Markham streets, where the defendant, seated in his Chevrolet car in the center lane of the street, was waiting for the traffic light to change from red to green. Dr. Ritchie and his brother, Angelo, jumped on the running boards of the defendant's car and told him he had struck their car in North Little Rock, and that they were going to surrender him to the police. The police headquarters was at the City Hall at Broadway and Markham streets, and the Ritchies directed the defendant to turn to the right and park on Markham street in front of the City Hall. At first the defendant denied striking a car; but then he asked the Ritchies not to deliver him to the police, stating that he was drunk and that the police would make it hard on him. The Ritchies persisted in their demands, and the defendant turned his car to the right into Markham street, with the apparent intention of parking as directed.

Dr. Ritchie was on the running board on the side of the car next to the defendant, and Angelo Ritchie was on the other side. Instead of parking, the defendant speeded up his car to twenty or thirty miles per hour and swerved from side to side on Markham street, in an effort to shake off the Ritchies. Angelo jumped off of the car after it had gone west on Markham street about 225 feet, and fell flat on his face. Deceased, Dr. Ritchie, hung on to the Bailey car for a short distance, but his body was found on the pavement on Markham street about 300 feet west of where Angelo Ritchie jumped off of the car. Dr. Ritchie was unconscious and died the next day from the skull fracture received when his head hit the pavement. The defendant did not stop, but spent the night in his car in the woods; and was arrested in Forrest City, Arkansas, on November 11 while returning to the state where he worked. He made a voluntary sworn statement to the officers shortly after his return to Little Rock on November 12, and his statement was received in evidence by consent. He admitted being drunk, did not remember hitting the car in North Little Rock, but remembered two men getting on his car. We quote direct from a portion of his statement made in question and answer form:

"A. They got on my car when I was waiting for the light or whatever held me up. Q. They got on your car while the motor was dead? A. Yes, sir. One of them said, 'Pull over to the curb. We are going to turn you over to the cops.' I said, 'I don't think that would be right. I'm drunk. They would stick me to the devil. If I have done any damage or hurt your feelings in any way, I'll pay for it.' Q. What did they say? A. They said they were going to turn me over to the cops. I said, 'I don't think you're man enough,' and I tried to get them to get off the car. . . . Q. Was one of them fighting you? A. Yeah. The fellow next to me was fighting at me and grabbed the steering wheel. The other fellow jumped off. Q. What did he say? A. The fellow on the left did all the talking. Q. The one on your side did all the talking? A. Yes, sir. Q. And he was fighting with you? A. Yes, sir. Q. After the other one jumped off the car what did you do? A. I went on. This fellow grabbed at me and when he did he missed the steering wheel and I throwed my hands up and he went off. . . . A. You might just say it was suicide to him. I told him to get off. I wouldn't have done anything like that I know. If I seen the man was drunk, I would have got his license and turned it over to the police. Q. The thing is you were drunk and they were going to turn you over to the officers? A. Yes, sir. When a man says something about the law to a drunk man, he naturally loses his head." In short, the homicide was admitted. Other facts were shown and some will be referred to hereinafter.

The Issues Here.

The appellant, by exceptions, motion for new trial and brief here, has brought forward four assignments of error: (1) Refusal to give instructed verdict. (2) Giving of instruction on defendant's testifying. (3) Refusal to charge on voluntary manslaughter. (4) Refusal to charge on involuntary manslaughter.

We discuss these assignments in four topic headings; and we add a fifth topic heading, not of any assignment of error, but of the method of curing the reversible error which we find to have been committed by the trial court; namely, the failure to instruct on voluntary manslaughter.

I. Refusal to Give an Instructed Verdict. Appellant argues that he could not have been guilty of second degree murder, and that a request for an instructed verdict should have been granted on that degree of homicide. He argues that he had no intention to kill the deceased or anyone else, and that the deceased and his brother were trespassers on the automobile of the defendant in the night time, and that they had no right to restrain the defendant, and that they were assaulting the defendant by striking him at the time he swerved his car to shake them off the running boards; and that these facts keep the case from being one of second degree murder. This was the appellant's theory of the case, which he doubtless argued to the jury, as he had a right to do. The trial court correctly instructed the jury on the defendant's theory, and it was a question of fact for the jury as to whether the defendant's theory of the case was correct. In defendant's instructions 4, 6, 7 and 8, the jury was told, in effect, that Dr. Ritchie and his brother were not authorized to make the arrest; that the defendant had a right to use means and force to repel the deceased; that if the defendant honestly believed, in good faith, that he was about to receive bodily harm at the hands of the deceased, and while grappling with the deceased and while driving the car, the deceased was thrown or fell from the running board, the defendant should be acquitted; and if the evidence showed that the death of the deceased was an accident, the defendant should be acquitted. In short, the trial court submitted to the jury the defendant's theory of the case on the question of guilt or innocence on second degree murder.

But the state had a right to have its theory submitted on second degree murder, and there was ample evidence in the record to support a conviction for second degree murder, and the trial court committed no error in refusing to grant the instructed verdict for the defendant. The defendant's own statement (as contained in his confession, admitted by consent) was strongly against him. He told the deceased and his brother when they said they were going to take him to the police: "I don't think you are man enough." And he said, "I tried to get them off of the car." Again he said, "You might just say it was suicide to him. I told him to get off." In short, the defendant intended to get the deceased and his brother off of the car by exercising all the force that it took to do it; and defendant contended that if such force resulted in their deaths, it would be the same as if they had each committed suicide. The defendant admitted the homicide. Section 2968 of Pope's Digest says: "The killing being proved, the burden of proving circumstances of mitigation that justify or excuse the homicide shall devolve on the accused, unless by the proof on the part of the prosecution it is sufficiently manifest that the offense committed only amounted to manslaughter, or that the accused was justified or excused in committing the homicide."

In the case of Byrd v. State, 76 Ark. 286, 88 S.W 974, it was held that no specific intention to kill is necessary to constitute the crime of murder in the second degree. A person intends the logical consequences of his act; and to throw a person from a speeding automobile onto a pavement with the car going at a speed of twenty to thirty miles an hour can, and did in this case, result in the death of the thrown person. The defendant said he intended to throw deceased off the car. He did. Death was the result. He used his car, his speed and his driving just as effectively and efficiently as he would have used a...