Brown v. State

• Citation: 18 S.W. 1051,55 Ark. 593
• Parties: BROWN v. STATE
• Decision Date: 19 March 1892
• Court: Arkansas Supreme Court

18 S.W. 1051

55 Ark. 593

BROWN v. STATE

Supreme Court of Arkansas

March 19, 1892

APPEAL from Pope Circuit Court, H. S. CARTER, Special Judge.

Brown and King were jointly indicted for the murder of J. N. Jones. They severed at the trial, and Brown was convicted of murder in the second degree. By appeal he questions the action of the court in giving certain instructions, in refusing certain other instructions, in admitting certain expert evidence and in refusing to admit evidence of uncommunicated threats made by deceased. The circumstances of the homicide are sufficiently stated in the opinion.

The defendant offered to prove by Mrs. Medlin that a few days before the killing she heard deceased say that he and defendant had not made friends, and that their trouble would never be settled except at the end of his double-barreled shotgun; and by several other witnesses that they had heard deceased at different times threaten the life of defendant. It was not shown that Mrs. Medlin had communicated the threat to defendant. The testimony was rejected.

Defendant asked the court to charge the jury as follows:

1. "If the jury believe from the evidence that Tom Brown was in the house of Mrs. Ratliff, and that the deceased came and entered into the yard and picked up an axe and undertook to enter the house with the said axe, with the intent to kill the said Brown and killed the deceased, they will find him not guilty.

2. "If the jury believe from the evidence that defendant Tom Brown, was in the house of Mrs. Ratliff, and that he was advised that deceased had threatened his life, and in good faith believed as a reasonable man that deceased intended to kill him or do him great bodily injury, and whilst so in the house of Mrs. Ratliff, deceased came there mad and entered into the yard and in a violent, threatening manner picked up an axe, and with said axe drawn in a menacing and threatening manner undertook to enter the house where defendant was, and that defendant believed as a reasonable man that deceased intended to kill him, or do him great bodily injury, and acting under the influence of said belief, whilst deceased was so endeavoring to enter the house, defendant killed him deceased, the killing would be justifiable.

4. "The fact that deceased may have made violent threats against defendant, or that the character of deceased was that of a dangerous and violent man, and the defendant a peaceable man, would not justify defendant in taking deceased's life; but these are circumstances admissible to be considered by the jury together with all other facts and circumstances in proof in the whole case determining who was the probable aggressor in the difficulty, and in determining whether there was any real or reasonably apparent necessity for the defendant to take the life of the deceased in order to save his own or prevent great bodily injury."

The court modified the second instruction by striking out all after the words "undertook to enter the house where defendant was," and adding "that defendant might use such force as was necessary to repel the assault, and, if necessary to save his own life or prevent great bodily injury, he might slay the deceased. And if the defendant, as a reasonable man, believed that the deceased intended to kill him, or do him great bodily injury, and acting under the influence of such belief, whilst the deceased was so endeavoring to enter the house, and that the danger was so urgent and pressing that in order to save his own life or prevent his receiving great bodily injury, the defendant killed him, then the killing would be justifiable."

The court, having modified instruction number two asked by defendant and numbered it one, then gave, on its own motion number two, as follows:

2. "You are instructed that previous threats or acts of hostility towards the defendant, however violent they may have been, were not, of themselves, sufficient to justify the defendant in killing the deceased. To excuse him, or justify him, he must have acted under an honest belief that it was necessary at the time of the killing to take the life of the deceased, Jones, in order to save his own life. And it must appear that there was reasonable cause to excite this apprehension on his part; so that if you find that the deceased, at the time he was killed, did nothing to excite in the mind of the defendant that the deceased was about to execute said threats, then the threats and bad character of the deceased, whatever you find them to have been, are unavailing, and should not be considered by you. But if the evidence leave you in doubt as to what the acts of the deceased were at the time or immediately before he was killed, you may consider the threats and character of the deceased, and character of the defendant for peace or violence, in connection with all the other evidence in the case, in determining who was probably the aggressor. The jury are instructed that no mere threats made by deceased before or at the time of the killing, unaccompanied at the time of the killing with any attempt to carry the same into execution, are sufficient to justify the killing or reduce it to a lower degree of homicide than murder. And if you believe that defendant shot and killed the deceased on account of said threat, and at the time he shot him he was in no fear of immediate danger, he is guilty of murder; and if the killing was the result of deliberate purpose fixed in his mind to kill, it was murder in the first degree."

The court also gave in charge to the jury sections 1505, 1516-1522, 1530-1533, 1547-8, 1551-1553 of Mansfield's Digest.

Judgment reversed and cause remanded.

R. C. Bullock for appellant.

1. There is no testimony whatever in the entire record, except the expert testimony which was inadmissible, but what shows defendant to have been justifiable in the killing. Defendant was in his castle, and had the right to resist with force any unauthorized entry. Mansf. Dig., sec. 1551; Whart., Cr. Law, sec. 505.

2. Dr. Ruff's testimony as to the position of deceased was not admissible. Whart., Cr. Ev., sec. 418; 17 S.W. 1073; 39 N.Y. 245; 41 Me. 177; 66 Am. Dec., 219; 19 Wend., 569; 1 Denio, 281; 24 Ark. 251.

3. It was error to admit Jeff Worthen's testimony and exclude Mrs. Medlin's.

4. The first instruction should have been given. 1 Whart., Cr. Law (9th ed.), 505. The second instruction was a correct definition of the law, and the court erred in modifying it. Mansf. Dig., sec. 1553.

5. The third instruction is in line with 51 Ark. 553.

W. E. Atkinson, Attorney General, and Chas. T. Coleman for appellee.

1. As to the admissibility of the expert testimony of Drs. Ruff and Kirkscey, see 68 N.C. 443; 3 Brewst., 249.

2. It was not shown that the threats were communicated to Brown. Bish., Cr. Pro., secs. 610-11, 621, 617.

OPINION

MANSFIELD, J.

The defendant sought an acquittal of the charge against him, on the ground that the homicide was justifiable. The theory of the prosecution appears to have been that the killing was an assassination. It occurred at the dwelling house of Mrs Martha Ratliff. She was the mother-in-law of Brown, and he and his wife were there as her guests. He had come into the neighborhood at the request of Mrs. Ratliff for the purpose of removing her and her family to the place of his own residence in the county of Searcy. The deceased resided near her house, and she had been in his employment for ten or twelve years. He had controlled her labor and that of her children during that time, and he objected to the proposed removal. He was displeased at the marriage of the defendant to Mrs. Ratliff's daughter, which took place in the year preceding that of his death, and it was proved that he had frequently threatened to take defendant's life. The latter had been informed of many of these threats, and it was shown that the reputation of the deceased was that of a revengeful and dangerous man. Two witnesses testified that on the day he was killed he declared that he would kill Brown if the latter attempted to effect the removal which Mrs. Ratliff desired to make. Her house contained but one room and had only one door-way. The door opened on to a porch which was four feet wide with its floor twenty inches above the ground. There was evidence tending to show that the deceased was killed by a shot fired from the house through the open door as he was advancing toward the door with an axe drawn in a threatening manner and apparently for the purpose of assaulting Brown. He fell with his head from the porch and with one foot on or against the first step leading to the porch floor. Dr. Ruff was a witness for the State and testified as a medical expert. He had examined the body of the deceased and described the wounds found upon it. One of these was on the left side of the head and was made with a large-bored gun. He stated that the brains had passed from the skull through the opening made by this wound, to such an extent that he could not by probing ascertain the course of the ball; but on separating the head from the body he discovered "the track of the bullet where it had cut its way down the marrow of the neck bone." He was then permitted to give his opinion, as a physician "and from viewing the premises" where the killing was done, "that it would have been impossible for the deceased to have been shot" as he was "if he had been advancing on the defendant with a drawn axe in any sort of a fighting position whatever." He was also permitted to testify that in his opinion the deceased was shot while he was. sitting "on the porch in a reclining position" and that it was not likely that he was killed "in a sudden reencounter." He was also allowed to state his reasons for entertaining these opinions. His...