Bolling v. State

• Decision Date: 20 June 1891
• Citation: 16 S.W. 658,54 Ark. 588
• Parties: BOLLING v. STATE
• Court: Arkansas Supreme Court

16 S.W. 658

54 Ark. 588

BOLLING v. STATE

Supreme Court of Arkansas

June 20, 1891

APPEAL from Logan Circuit Court, HUGH F. THOMASON, Judge.

Judgment reversed and cause remanded.

Oscar L. Miles for appellant.

1. It was error to refuse defendant the right to open and close. There was only one issue for the jury, the insanity of defendant. The burden was on him to establish it, and hence he was entitled to open and close.

2. Defendant was not present when certain substantive steps were taken. Mansf. Dig., secs. 2098, 2213; Max. Cr. Pr., 561; 24 Ark. 627; ib., 629; 44 id., 331; 45 id., 165; 50 id., 492.

3. The court erred in admitting the irrelevant testimony of Hedges and others. Whart. Cr. Ev., sec. 29; ib., 23 et seq.; 92 U.S 284.

See also 51 Ark. 157; 43 id., 294.

4. It was error to exclude the questions (1 and 2) asked the witness A. Hedges. The "child test," the "wild beast test," the test of "knowledge of right and wrong generally," have been put away, and the courts now hold that if accused did "not know right from wrong with respect to the particular act he was committing," he is no more responsible than if he had not done the deed. 10 Cl. & Fin., 200; 7 Metc., 500; 50 Ark. 517; 12 Mo. 223.

5. The charge was objectionable because no definition of murder in the second degree was given, and none as to reasonable doubt nothing as to partial insanity or insane delusions. The sixth was good as far as it went, but was incomplete. 50 Ark. 517. The seventh was argumentative and erroneous because it undertook to tell the jury when defendant's plea of insanity had failed--a matter to be determined by them. 49 Ark. 148, 440. Its latter clause is not the law. In support of prayer first of defendant, see Sackett's Inst. to Juries, 699; and as to the second, third, fourth, see respectively ib., 698-9, and 50 Ark. 511. The ruling of this court in Casat's case, reaffirmed in Coats' case, is opposed to the reasoning in 31 Ill. 385, which is to our mind unanswerable. As to the seventh, eighth, ninth, tenth eleventh and twelfth, see Elwell's Insanity, 390; 10 Ohio St. 598; 10 F. 161; 63 Ala. 307.

W. E. Atkinson, Attorney General, for appellee.

1. The burden was not shifted from the State by defendant's plea of insanity. It was at last only a plea of not guilty. Mansf. Dig., sec. 2172; Bish., Cr. Pro., sec. 699.

2. It is too late after verdict to complain that he was not present when the grand jury was empaneled or the indictment quashed. 12 Ark. 630; 50 id., 497. The other objections were not substantive steps. 45 Ark. 165; State v. Elkins, 63 Mo.

3. The evidence objected to tended to show a grievance against Parks, dating from the refusal of Parks' daughter to accompany defendant to the show. The evidence tends to sustain a "pertinent hypothesis."

4. Opinions of non-expert witnesses are admissible only when all the facts upon which the opinion is based are detailed before the jury. Bish., Cr. Pro., 3d ed., sec. 679; 5 Blackf. (Ind.), 217; 4 Conn. 203; 56 N.H. 227.

5. The instructions as to insane delusions are taken from 40 Ark. 511, and 50 id., 511. The sixth instruction asked by defendant was ruled against in 40 Ark. 511. The eighth is not the law. Any delusion does not justify a homicide. If defendant was sane as to this crime, but insane upon other questions, the insanity will not excuse. Whart., Cr. Law., sec. 41.

OPINION

HEMINGWAY, J.

The appellant, John D. Bolling, was indicted, tried and convicted for murder in the first degree, in the killing of Capt. W. J. Parks, and prosecutes this appeal from a judgment sentencing him to death. Upon his arraignment he filed a written plea, in which he admitted the killing, but denied that he was guilty, because, as he alleged, he was insane and thereby incapable of acting with malice, premeditation or deliberation.

The killing was done on the afternoon of the 3d of November, 1888, on a platform in front of the defendant's store house, upon a public street in the village of Charleston, in the open view of the people in the village, and was witnessed by a number of them. The defendant sat in his door with his gun in his hand. The deceased approached, stepped upon the platform in front of the door, and, when within ten feet of the defendant, the latter rose, presented his gun and fired, inflicting a wound from which death instantly ensued. It appears that the defendant could not have seen the deceased until about the time he stepped upon the platform, and that nothing was said by either party before the killing. There had never been any difficulty between the parties, and no one knew of any ill-will on the part of the deceased toward the defendant. Nothing unusual was noticed in the conduct of the defendant that day, and persons who were with him a few moments before the killing say he appeared, talked and acted as was usual with him. After the shot was fired he walked across the street, a distance of about sixty feet from the body of Parks, and seemed to be working with the hammer of his gun as if to reload it. Persons who came to the body called upon him to return and surrender, whereupon he went back and gave up his gun. He then drew a pistol, declaring that he could still defend himself. He was ordered to give it up and surrender, which he declared himself willing to do upon a guaranty of protection. This was offered, and he was taken in custody. He protested against being hurried off, and asked a neighbor to lock his store. A guard escorted him directly to a neighboring store, and during the evening to Fort Smith for safe keeping. Before he was placed in custody he several times demanded protection as a condition of his submission, and spoke of an apprehension that he would be murdered.

The killing was on Saturday, and there was some crowd in the village; after the occurrence there was much excitement. The defendant was calm and composed, manifesting neither excitement nor apprehension, except as they might be implied from his demand to be protected.

On his way to Fort Smith he was cheerful and free from excitement, affording amusement and entertainment for the guard that attended him. He asked where he hit the deceased, and when informed laughed and said it was a good shot. He manifested no sorrow for his act, but said that his conscience was clear, and he regretted that he had not done it three or four years sooner. He seems to have answered without hesitation or reserve all questions asked him at that time as to the reason for his act. The reasons assigned were not in each instance the same, though with each he either mentioned or intimated acts done or threatened by Parks.

The following may be stated as some of the different reasons assigned to different persons. Before he was placed under arrest and when called to surrender, he said all he wanted was protection; that he had been run over for three or four years by Capt. Parks and his sons Jim and Henry packing pistols in their boot-legs to kill him, and he would stand it no longer; that they had been standing around on the streets with pistols in their bootlegs to shoot and kill him, and he had determined to have peace or the gallows; that they had meddled with his private business and domestic affairs, and he would have killed Parks three or four years sooner if it had not been for his family. A few moments after the killing another witness asked him why he did it, and he replied: "I have stood all I could--I could not stand any more."

As he was conducted from the place of killing, he passed Jim Parks, and said to him: "I hated to have to do it, but he has been warned of it time and again."

On his way to Fort Smith he told A. Hedges, a witness, that the trouble between him and Parks had been brewing for three or four years, and he was only sorry he had not killed him long ago; that he had gone to church three times to kill him, and went the night before, fully determined to do it, but that he thought best not to do it. He said to the same witness, after reaching the jail yard and while waiting for the jailer, "that Parks was trying to marry his mother against her will; that the church had combined to force her to marry Parks; that he had reasoned with Parks, and downed him on religion, and he would rise and come again; and he downed him on the scriptures, and he would rise and come again; and at last he denied Revelations, and that settled it." In the jail next morning he was asked why he killed Parks, and replied: "To keep Parks from marrying his mother." He was asked if Parks had ever asked her to marry him, and replied: "You don't understand the case--the church was forcing her to marry him against her will." At the same time he said that Parks had been carrying a pistol for some time to kill him, and that Henry Parks had passed his store a day or two before with a six-shooter in his hand to kill him and would have killed him, but he ran or darted into the store. He was then asked if he had anything against Jim Parks, and said, "No; only Jim asked him once if he did not want to travel."

To another witness he made about the same statement as to the one last referred to, and said further that he carried his pistol to church the night before intending to kill Parks, but thought it might not be sufficient; and further that Parks objected to his going to see his daughter; and if he was not welcome to visit her, Parks was not welcome to visit his mother. When speaking of Parks' purpose to marry his mother and the church's aiding him in the matter, he said "that John Armistead, Dr. Barnes and brother Joe Burt, if he was living, could tell all about it." The parties named, except Joe Burt, were produced as witnesses, and stated that they had never heard of the matter.

J. P Falconer, who was of...