Ballentine v. State
| Decision Date | 23 October 1939 |
| Docket Number | 4140 |
| Citation | 132 S.W.2d 384,198 Ark. 1037 |
| Parties | BALLENTINE v. STATE |
| Court | Arkansas Supreme Court |
Appeal from Sebastian Circuit Court, Fort Smith District; J. Sam Wood, Judge; affirmed.
Affirmed.
H. C Rains, for appellant.
Jack Holt, Attorney General, and Jno P. Streepey, Asst. Atty General, for appellee.
Appellant was indicted for the crime of murder in the first degree for the killing on the 25th day of May, 1939, of Albert Honea. On a trial he was convicted of murder in the second degree, and punishment fixed at twenty-one years in the state penitentiary, on which judgment was entered, from which is this appeal.
The only contention made for a reversal of the judgment is that the court erred in giving an instruction on murder in the second degree for the reason, as contended by him, that the evidence clearly shows that he was guilty of no greater offense than voluntary manslaughter. For this reason he asks that the judgment be reversed and the punishment reduced to the maximum amount fixed by law for manslaughter. His contention is that the record fails to disclose any malice on his part or any intention to kill Honea.
Murder in the first degree is defined by statute, § 2969, Pope's Digest, as "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, or shall be committed in the perpetration of or in the attempt to perpetrate," certain crimes named. The statute then says, § 2970, Pope's Digest: "All other murder shall be deemed murder in the second degree." We have many times held that actual intent to take life is not a necessary element of the crime of murder in the second degree. Brassfield v. State, 55 Ark. 556, 18 S.W. 1040; Byrd v. State, 76 Ark. 286, 88 S.W. 974. Malice, however, is a necessary element of murder, either in the first or second degree, and it must be either express or implied. Section 2967 provides: "Malice shall be implied when no considerable provocation appears, or when all the circumstances of the killing manifest an abandoned and wicked disposition."
Albert Honea was an old man and operated some kind of a "joint" near the foot of the Frisco bridge across the Arkansas River in Fort Smith. Appellant and others had gathered at his place and had engaged in a penny ante poker game and in shooting dice, and the evidence tends to show that they had all become more or less intoxicated from drinking bay rum. One of the witnesses testified that appellant got mad over the crap game and "seemed to take his spite out" on deceased who was not in the crap game and had taken no part in the gambling. The evidence shows that appellant attacked Honea with his fists,...
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...an essential element of both first and second degree murder. McGaha v. State, 216 Ark. 165, 224 S.W.2d 534 (1949); Ballentine v. State, 198 Ark. 1037, 132 S.W.2d 384 (1939). Manslaughter was defined generally as the unlawful killing of a human being without malice express or implied and wit......
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