Bealmear v. State

• Decision Date: 15 July 1912
• Citation: Bealmear v. State, 150 S.W. 129, 104 Ark. 616 (Ark. 1912)
• Parties: BEALMEAR v. STATE
• Court: Arkansas Supreme Court

150 S.W. 129

104 Ark. 616

BEALMEAR v. STATE

Supreme Court of Arkansas

July 15, 1912

Appeal from Benton Circuit Court; J. S. Maples, Judge; affirmed.

Judgment affirmed.

McGill & Lindsey, and Walker & Walker, for appellant.

1. The court's ninth instruction on the question of self-defense ignores the principle that one on his own premises may without retreating, stand his ground, and repel the invasion of one who comes in violent or tumultuous manner, and is not the law. Kirby's Dig., § 1796.

2. Instruction 11, as given by the court, authorized a conviction, even though the jury might find that the defendant honestly believed that he was "then and there in danger of losing his life or receiving great bodily injury at the hands of deceased." As given, the instruction was unquestionably erroneous, and human life and liberty ought to be held too sacred to permit a trial judge, long after the transaction, to interpolate a word totally changing its meaning, as has been done in this case.

3. The act of the prosecuting attorney in inviting five of the jurors, after all the evidence was in and the jury had been permitted to separate, pending the argument, to a cold drink stand to drink with him, and of the jurors in accepting the invitation, was such improper conduct as to warrant a reversal, even though the affidavits of the prosecuting attorney and of the jurors state in effect that "nothing wrong transpired, and that they only took soft drinks." 104 S.W. 872; 77 Ark. 241; Id. 19; 74 Ark. 256; Id. 489; 71 Ark. 415; 72 Ark. 461; Id. 139; 74 Ark. 210; 70 Ark. 305; 65 Ark. 619; 75 Ark. 577; 87 Ark 461; 2 Am. & Eng. Enc. of L. 755; 93 Ala. 565.

Hal L Norwood, Attorney General and William H. Rector, Assistant, for appellee.

1. The fact that the accused was at his home does not change the rule that any killing to be justifiable must proceed from necessity. Wharton on Homicide, (3 ed.), Bowlby, § 531; Id. 530, 534. Even though the entry be made with intent to take human life or to inflict great bodily injury, the assailant's life can not be taken unless it is necessary to protect the slayer or some member of his family. 49 Ark. 534; 84 Ark. 121; 93 Ark. 409.

2. It is apparent from the trial judge's statement that the eleventh instruction was given in proper form to the jury, and that the instruction was argued to the jury as though the word "not" was written in the proper connection and place. The jury must, therefore, have understood the instruction, and no prejudice resulted to the defendant. Moreover appellant's objection was general only, as appears from the judge's certificate, which, in the absence of a bill of exceptions proved by bystanders, must be taken as conclusive. 71 Ark. 577; 57 Ark. 1; 56 Ark. 494; 87 Ark. 549; Id. 461; 95 Ark. 471.

3. There is no merit in appellant's contention that there was misconduct on the part of the prosecuting attorney and members of the jury because he treated them to limeade. His affidavit and the affidavits of the jurors fully establish the purity of the verdict. 30 Ark. 454; 57 Ark. 8; 66 Ark. 545; 73 Ark. 501.

OPINION

MCCULLOCH, C. J.

The defendant, A. J. Bealmear, was indicted by the grand jury of Benton County for the crime of murder in the first degree in the killing of one C. C. McAdams on January 17, 1912.

The trial of the case resulted in a verdict finding the defendant guilty of murder in the second degree, and his punishment was assessed at five years in the State penitentiary. His motion for a new trial was overruled, and he has appealed to this court.

The killing is admitted, and defendant relies on a plea of self-defense. The killing occurred at defendant's home on a farm between Bentonville and Rogers. He was an unmarried man, and lived alone, and McAdams lived about a mile from him. He was on friendly terms with McAdams, and they were often together, frequently exchanging farm work with each other. The testimony discloses the fact that defendant and Mrs. McAdams, wife of deceased, were on terms of illicit intimacy, and had frequently had sexual intercourse with each other. This occurred generally at the house of defendant, where Mrs. McAdams had gone to help him in household work. Two days before the killing occurred, defendant went to the house of McAdams, in the latter's absence, and while he and Mrs. McAdams were in the act of having sexual intercourse McAdams returned and caught the pair together. They both testified in the case, detailing what occurred, Mrs. McAdams having been introduced as a witness by the State, and there are some conflicts in their testimony; but the substance of the testimony is to the effect that McAdams seized his gun and threatened to kill defendant, saying that "If it was not for my children, I would blow your head off, but I am not going to disgrace them." Defendant and McAdams left the house for the purpose of going to the mail box, which was on the roadside not far distant, and afterwards returned to the house in company with each other, and the defendant remained there for dinner. Defendant testified that McAdams demanded that he (defendant) make conveyance to McAdams of all his property, including his farm, and his testimony also tended to show that this demand was the result of connivance between McAdams and his wife for the purpose of compelling him to turn over his property. Mrs. McAdams denied knowledge of any such demand made by her husband, stating that defendant and her husband went off together and returned together. Defendant remained at the house of McAdams from about 10 o'clock in the morning until 2:30 in the afternoon, and was then permitted to leave. Defendant testified that he left with the understanding that he was to go to Bentonville with McAdams for the purpose of having a deed prepared. In the meantime, defendant concluded, upon the advice of some of his neighbors, to leave the country for the time being and to sell his personal property. On the morning of the killing he was at home, and one of his neighbors, a Mr. Landers, was there with him, when McAdams came and knocked on the door. He had in his hand a small pot or kettle belonging to defendant, and he had left home, according to the testimony of Mrs. McAdams, for the purpose of returning this and some other small articles of household effects which had been borrowed from defendant, and also for the purpose of getting some of his own household articles which had been left at the house of defendant. Defendant had related to Landers all that he claimed had occurred between him and McAdams and wife, and had sought Landers's advice. When McAdams knocked at the door, defendant, according to the testimony of Landers, remarked: "That's him now," or "That's Mack now." Defendant went to the door and opened it, having in his hand a small target rifle of 22 caliber, and deceased was apparently unarmed. McAdams asked, standing at the door: "What the hell have you got that for?" and defendant replied, "I aim to defend myself." McAdams then handed the pot or kettle to defendant, who took it and set it down in the house, and got a sack containing some articles, and handed it to McAdams, who turned and went to the gate and invited defendant to come out of the house, saying, "Come out here; I want to talk with you." Defendant replied: "I have done made my arrangements;" McAdams replied: "Yes, G d you, I have made mine." Defendant replied: "You go on and attend to your own business," and added: "You go on off; I don't want no trouble with you;" McAdams said: "Just crack down on me, G d you, I am not afraid of your gun." These details are as related by witness Landers, and he says that after the last statement was made he heard defendant cry out, "Stop!" and then fired. He states that at the time the shot was fired defendant was standing by the side of the house door, and McAdams was standing at the yard gate about twenty feet from the door. The defendant testified that McAdams had gone outside the gate, and was coming back inside, and, as he says, was making an effort apparently to draw a pistol, when he fired the fatal shot. Only one shot was fired. McAdams fell at once, and died in about ten minutes. He was unarmed except that a small pocket knife was found in his pocket. Defendant and Landers were the only eye-witnesses to the killing, but a number of other witnesses testified about reaching the scene soon after the killing, and described the situation as to the position of the body of McAdams.

The evidence is abundantly sufficient to sustain the verdict. It is true the killing occurred at the house of defendant; but the jury were warranted in finding that he was in no danger at that time of personal violence, and that he fired the fatal shot without any necessity existing for the defense of his person or his habitation, and that it was done for the purpose of taking the life of McAdams.

The court gave numerous...