Burton v. State
Decision Date | 06 May 1907 |
Citation | 102 S.W. 362,82 Ark. 595 |
Parties | BURTON v. STATE |
Court | Arkansas Supreme Court |
Appeal from Clark Circuit Court; Jacob M. Carter, Judge; reversed.
STATEMENT BY THE COURT.
At the August term, 1906, of the Clark Circuit Court the grand jury returned an indictment against one Tom Burton for the crime of murder in the second degree. At the January term, 1907, he went to trial under a plea of not guilty, was convicted and sentenced to six years' imprisonment in the penitentiary.
The appellant admitted that he killed one L. D. Crews. He was the only witness present when the killing occurred, and his testimony as to what took place at the time of the killing is as follows:
There was testimony to the effect that appellant told a witness a short time after the shooting that he, appellant, approached Crews and asked him about some lies he had told on appellant and then Crews called him a son-of-a-bitch and reached for his gun, when appellant ran under the gun. Appellant denied that he told this witness any such thing.
The appellant asked certain witnesses if they had heard Crews make any threats against appellant. The prosecuting attorney objected, the court sustained the objection, and appellant excepted to the ruling sustaining the objection, and preserved his exceptions in the seventh and eighth grounds of the motion for new trial. The Attorney General confesses error in the ruling of the court on these grounds.
Judgment reversed and cause remanded.
Hardage & Wilson, for appellant.
Threats are admissible for the purpose of showing who was the probable aggressor. 29 Ark. 248; 55 Id. 593; 69 Id. 149; 72 Id. 436; 55 Id. 604; 76 Id. 493; 22 Id. 574; Rice on Ev. vol. 3, p. 594; Wigmore on Ev. vol. 1, § 110; vol. 3, Id. § 1732. The State must show beyond a reasonable doubt who was the aggressor. 83 Ala. 33; 76 Id. 1. Before the jury can be justified in rendering a verdict contrary to the testimony of a defendant, they must have some evidence upon which to hinge a verdict. 58 Ark. 473; 67 Id. 416; Rice on Ev. vol. 3, p. 559. A plea of self defense is one to which the prosecuting attorney should not undertake to prejudice the jury against such defense. 74 Ark. 256; 75 Id. 246.
William F. Kirby' Attorney General, for appellee.
When it becomes necessary to determine who was the aggressor evidence that will throw light upon the subject and aid the jury in a correct solution thereof should be admitted. The learned trial judge erroneously refused to...
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