Biddle v. State

• Decision Date: 10 December 1917
• Docket Number: 36
• Citation: 199 S.W. 913,131 Ark. 537
• Parties: BIDDLE v. STATE
• Court: Arkansas Supreme Court

199 S.W. 913

131 Ark. 537

BIDDLE v. STATE

No. 36

Supreme Court of Arkansas

December 10, 1917

Appeal from Columbia Circuit Court; C. W. Smith, Judge; affirmed.

Judgment affirmed.

Joe Joiner and A. S. Kilgore, for appellant.

1. Instructions Nos. 9, 5 and 6 should have been given in full as asked. They correctly state the law. 109 Ark. 478; 3 Tenn 110; 25 Fla. 517; 172 S.W. 1010; 93 Id. 409; 92 Id. 205; 59 Id. 132.

2. Sam Peniger should have been permitted to testify as to character of deceased. 26 Cent. Digest, 507-510.

John D Arbuckle, Attorney General, and T. W. Campbell, Assistant for appellee.

1. Instruction No. 9 was properly refused. 13 R. C. L., p. 913, § 217; 72 Vt. 381; 122 Ill. 1; 36 Miss. 531; 73 S.C. 277; 43 Tex.Crim. 328; Const., art. 7, § 23.

2. The court properly modified the fifth instruction. 117 Ala. 59-66; 105 Id. 8; 115 Id. 42; 131 Cal. 240; 63 Oh. St. 173; 72 Minn. 296; 67 Iowa 475; 157 Ill. 153; 134 Mo. 109.

3. Instruction 6, asked, is not the law, and the court properly refused the first, fourth and fifth paragraphs thereof. 67 Ark. 594; 75 Id. 350; 69 Id. 648.

4. Sam Peniger's testimony was not admissible to prove deceased's character. Violent and turbulent disposition can not be proven by an isolated circumstance. It can be proved only by general reputation. 130 Ark. 365; 38 Ark. 498; 67 Id. 117.

OPINION

SMITH, J.

Appellant seeks by this appeal to reverse the judgment of the court below, sentencing him to a term of six years in the penitentiary upon a conviction before the jury, of murder in the second degree.

The crime was alleged to have been committed by shooting Luther Peniger with a gun, and the defense interposed was that of self-defense.

At the trial appellant offered to show by Sam Peniger, a brother of the deceased, that he (Sam Peniger) had said to his brother, a short time before the killing, that if he (the deceased) did not mend his way and stop getting into so much trouble, he would die with his shoes on. The court refused to permit the introduction of this evidence and exceptions were duly saved.

Exceptions were saved to the refusal of the court to give an instruction numbered 9, which reads as follows:

"9. You are instructed that the defendant had a right to use a weapon which he carried unlawfully in his necessary self-defense, and the fact that he carried a weapon unlawfully, standing alone, should not be considered as any evidence of his guilt on the trial of this case, but you are the sole judges as to whether he used an unlawful weapon, as well as to whether he used it in his necessary self-defense."

An instruction numbered 5 was asked by appellant, which told the jury, among other things, that "so long as a reasonable doubt of his guilt remains in your minds you can not convict the defendant. He is protected by the benefit of a reasonable doubt until it is removed from the mind of each juror by evidence which convinces each juror of his guilt to a moral certainty." The court struck out the words "each juror," and inserted the words, "the jury" in both places where those words occur, and exceptions were duly saved to this action.

The court was asked by appellant to give an instruction in which the jury was told that, in determining whether or not appellant acted in his necessary self-defense, "in so far as possible you are to place yourself in the position and under the circumstances surrounding the defendant at the time of the shooting, acting without carelessness on his part, as those circumstances and his position have been disclosed by the evidence, viewing it from the standpoint of the defendant at the time, as you believe from the evidence it appeared to him, you will ask: (1) Did it appear at the time he fired the fatal shot that he was in danger of losing his life or of receiving great bodily harm at the hands of the deceased? (2) If it did so appear, did the defendant reach the conclusion that he was in danger of losing his life or of receiving great bodily harm at the hands of the deceased after the exercise of such caution and prudence in judging the appearance and circumstances by which he was surrounded as it appeared to him to be reasonably consistent with his safety?"

We will discuss the assignments of error in the order in which they are stated.

The excluded testimony of Sam Peniger was incompetent. It was, of course, competent to prove that the deceased was a man of bad reputation for peace and quietude, if such was the case; but this reputation could not be shown by proving isolated circumstances. Such testimony is confined to proof of general reputation. Fowler v. State, 130 Ark. 365, 197 S.W. 568; Campbell v. State, 38 Ark. 498; Hardgraves v. State, 88 Ark. 261, 114 S.W. 216.

Instruction numbered 9 was properly refused. It is true we said, in the case of Moore v. State, 109 Ark. 475, 160 S.W. 206, that a person is not to be deprived of his right to use a weapon in his necessary self-defense because he is carrying it unlawfully. But it is an entirely different matter to say that the jury may not consider that fact as any evidence in determining whether the person who so carried it used it in his necessary self-defense. The deceased was unarmed, and the testimony was sharply conflicting as to the circumstances of the killing, and we can not say that the jury should have disregarded entirely the fact that one of the participants was armed. Such a charge would have been upon the weight of the evidence.

The court properly amended instruction numbered 5. It is the duty of the jury to take counsel together. Each juror must necessarily reach his own conclusion about the merits of the case he is trying; but, in doing so, it is proper for him to take into account the fact that other jurors are supposed to be as impartial and as disinterested as he,...