Branscum v. State

• Decision Date: 22 April 1918
• Docket Number: 315
• Citation: 203 S.W. 13,134 Ark. 66
• Parties: BRANSCUM v. STATE
• Court: Arkansas Supreme Court

203 S.W. 13

134 Ark. 66

BRANSCUM v. STATE

No. 315

Supreme Court of Arkansas

April 22, 1918

Appeal from Stone Circuit Court; Dene H. Coleman, Judge; affirmed.

Judgment affirmed.

Appellant pro se.

1. Britton and McCallester were not competent jurors. They had a fixed opinion as to the guilt or innocence of defendant. 79 Ark. 127; 102 Id. 180; 91 Id. 582.

2. It was error to refuse instruction No. 1 asked. 85 Ark. 51; 12 Cyc. 751; 21 Id. 796-816; 59 Ark. 132; 170 S.W. 235; 172 Id. 1025; 120 Ark. 202.

3. It was error to give No. 13. 59 Ark. 132; 120 Id. 202; 62 Id. 307; 85 Id. 48; 80 Id. 87; 55 Id. 397; 67 Id. 603; 72 Id 438; 91 Id. 576; 93 Id. 414; 109 Id. 515; 12 Cyc. 751; 21 Id. 797-816; 13 R C. L. 816.

4. John Pearce's testimony should have been admitted. Kirby's Digest, § 3139; 37 Ark. 324; 52 Id. 303; 72 Id. 412; 82 Id. 61; 99 Id. 615; 21 Cyc. 895.

5. The verdict is against the evidence. All the facts and circumstances make a clear case of self-defense.

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

1. Britton and McCallister were competent jurors. 120 Ark. 470; 114 Id. 472; 109 Id. 450; 104 Id. 616, and others.

2. Instruction 1 was properly refused. The whole law of self-defense was given in No. 13.

3. It was entirely within the discretion of the court to admit or reject Pearse's testimony on recall. 34 Ark. 383; 68 Id. 587; 54 Id. 124, etc.

4. The evidence is ample to sustain the verdict. The plea of self-defense was without merit.

OPINION

SMITH, J.

This appeal is prosecuted to reverse the judgment of the court below pronounced upon the verdict of the jury finding appellant guilty of murder in the second degree. The punishment was left by the jury to be fixed by the court. In impaneling the jury the court held Arthur Brittain and Leonard McAllister to be competent jurors, and exceptions were saved to that ruling on the ground that they were shown to have such fixed opinions concerning appellant's guilt as to render them incompetent. The jurors were examined at length by attorneys representing the State and the appellant and thereafter by the court. The answers of these veniremen were very similar on their voir dire; but there appears to be more question about the competency of Brittain than there was about McAllister. No attempt was made to show that either venireman entertained any prejudice against appellant, and it appears that the opinions entertained were based upon rumor and each stated in response to questions by the court that he could and would base his verdict solely on the testimony, and the court, therefore, properly held the jurors competent to serve as such. Dewein v. State, 114 Ark. 472, 170 S.W. 582.

A witness named Pearce gave damaging testimony against appellant, and an exception was saved to the refusal of the court to permit appellant to recall that witness and ask him a question which would have tended to show prejudice against the appellant. It appears, however, that the witness had been cross-examined at length by appellant and the State had closed its case and had rested and appellant had put on a portion of his testimony when the request was made. The trial court must necessarily have a discretion in such matters, and as full opportunity for the cross-examination of the witness was afforded before the State's case was closed, no abuse of discretion appears in the refusal to recall the witness for further cross-examination thereafter.

Error is assigned in the refusal of the court to give an instruction numbered 1 requested by appellant which dealt with appellant's right to act under the circumstances as they appeared to him. The instruction, however, did not require that appellant should have acted "without fault or carelessness on his part," and it was, therefore, properly refused.

The court gave over appellant's objection the following instruction: "The defendant in entering his plea of not guilty seeks to justify the killing in this case by alleging that he killed Ben Lacewell in his necessary self-defense.

"The defense of justification as claimed by the defendant turns upon the answer to one question, and that is, What was Ben Lacewell doing at the time the defendant fired the fatal shot or shots?

"To establish the plea of self-defense, you must find that, at the time the fatal shot or shots were fired, that there was some conduct on the part of Ben Lacewell, some overt act, some demonstration or apparent demonstration which induced in the mind of the defendant, James Branscum, while acting in good faith and as a reasonably prudent person under all circumstances surrounding the fatal encounter, as they then appeared to him, an honest belief that he was in great danger of losing his life, or of receiving great bodily harm. But a mere honest belief on the part of James Branscum that the killing was necessary is not sufficient; in addition to that, it must appear that the circumstances were such as made it reasonable for him to entertain such belief as the circumstances appeared to him acting as a reasonable person."

It is urged that this instruction makes the conduct of the deceased determinative of appellant's right to fire the fatal shot and leaves out of consideration the question of appellant's belief as to the action the deceased was about to take. Such, however, is not its effect when the entire instruction is considered together, for while it...