Bly v. State

• Decision Date: 04 October 1948
• Docket Number: 4514
• Citation: 214 S.W.2d 77,213 Ark. 859
• Parties: Bly v. State
• Court: Arkansas Supreme Court

214 S.W.2d 77

213 Ark. 859

Bly v. State

No. 4514

Supreme Court of Arkansas

October 4, 1948

Rehearing Denied November 8, 1948.

Appeal from Johnson Circuit Court; Audrey Strait, Judge.

Affirmed.

Linus A. Williams and J. H. Brock, for appellant.

Guy E. Williams, Attorney General, and Oscar E Ellis, Assistant Attorney General, for appellee.

OPINION

Ed. F McFaddin, Justice.

From a conviction of second degree murder and a prison sentence of five years, there is this appeal. The motion for new trial contains 21 assignments, which we group and discuss in convenient topic headings.

I. Sufficiency of the Evidence to Sustain Second Degree Murder or Any Other Conviction. Assignments 1, 2, 3, 4, and 5 present various phases of this topic. Viewed in the light most favorable to the State, as we do in appeals by the defendants, ^[1] the facts reflect that the defendant, Jack Bly, aged 86, and Richard A. McAnally, aged about 47, were engaged in drinking intoxicants in Bly's cabin. The drinking commenced on Friday afternoon; and McAnally slept in the cabin with Bly that night. Saturday morning, McAnally, after obtaining more whiskey, returned to Bly's cabin. About noon Saturday, McAnally, while eating at the table, cursed Bly, who became so enraged that he attacked McAnally with a knife and killed him by severing his jugular vein. The defendant admitted that he inflicted the wound which caused McAnally's death, but claimed: (1) that he acted in necessary self-defense, and (2) that in all events the crime was only manslaughter since -- as he urged -- there was absent the ingredient of malice, which is essential to second degree murder.

The plea of self-defense presented a factual issue on which the testimony was in sharp dispute. There is ample evidence to sustain the conviction against the plea of self-defense. We come, then, to the contention that there was no malice. It is true that the distinction between murder in the second degree and manslaughter is the presence of malice, express or implied. In the case of Townsend v. State, ^[2] 174 Ark. 1180, 298 S.W. 3, Chief Justice Hart, speaking for the Court, used this language:

"Whether an offense is murder in the second degree or manslaughter depends upon the presence or absence of malice which may be expressed or implied. The law implies malice where there is a killing with a deadly weapon and no circumstances of mitigation, justification, or excuse appear at the time of the killing. Inasmuch as no one can look into the mind of another, much latitude is allowed in the introduction of testimony on the question of motive, and the only way to decide upon the mental condition (intention) of the accused at the time of the killing is to judge it from the attendant circumstances."

If the jury disbelieved -- as it evidently did -- the defendant's plea of self-defense, then the killing was without sufficient justification. It was done with a deadly weapon, a knife; and the law will imply malice when the killing is without provocation and is done with a deadly weapon. Webb v. State, 150 Ark. 75, 233 S.W. 806; McAdams v. State, 25 Ark. 405; Vance v. State, 70 Ark. 272, 68 S.W. 37. The last cited case also holds that mere words used by the deceased, however abusive and violent, are not sufficient to reduce the grade of the homicide from murder to manslaughter. We conclude that the evidence is sufficient to sustain the conviction of second-degree murder.

II. Admission of Certain Evidence. Assignments 16 to 21, inclusive, question various rulings made by the trial court in permitting witnesses for the State to testify.

(a) The mortician who prepared the body of the deceased for burial was permitted to testify that he found no weapon of any kind in the clothes of the deceased. It was shown that...