Byrd v. State

Decision Date08 July 1905
PartiesBYRD v. STATE
CourtArkansas Supreme Court

Appeal from Ouachita Circuit Court, CHARLES W. SMITH, Judge.

Affirmed.

Judgment affirmed.

C. L Poole and J. S. McKnight, for appellant.

Robert L. Rogers, Attorney General, for appellee.

OPINION

RIDDICK, J.

This is an appeal from the judgment of the Ouachita Circuit Court convicting the defendant, Tom Byrd, of murder in the second degree for killing one Mr. Burnsides in Calhoun County, the venue having been changed to the former county before trial.

The evidence shows that on the 4th day of September, 1904, at the town of Woodbury, the defendant, Tom Byrd, became intoxicated from drinking whisky. While in this condition, he met Burnsides on the street. Burnsides was a man of fifty-nine years old, weighed about 115 pounds, and was very weak, even for a man of his age, while the defendant was twenty-eight years old, weighed about 170 pounds, and was a strong man physically. Byrd was cursing at the time he met Burnsides and one of the witnesses testified that Burnsides requested him "to have respect for the ladies, if not for the men." Whereupon Byrd caught Burnsides by the collar, and said to him, "You God damned old son of a bitch, you told a lie on me, and caused me to pay out $ 27, and I am going to kill you." Burnsides asked him not to strike him, but the defendant struck him, and then threw him to the ground, and sat down astride him, and commenced to beat and pound him in the face with his hands and fists, occasionally catching him by the neck or shoulders, and then raising his head from the ground, and pounding it back against the ground. Some moments intervened before any one attempted to interfere and stop the furious and brutal attack of the defendant upon the helpless old man. When they did attempt to separate them, Byrd frustrated their attempt by putting his hand in his pocket as if he was about to draw a pistol and threatening to kill any one who should interfere. After he had pounded Burnsides into unconsciousness some one went to him and told him he had killed the old man, and induced him to desist and leave. Byrd went home. When he reached home, he met his wife, and told her that he had killed Burnsides. Soon after that he left his home, and was a fugitive from justice for several days, when he surrendered to the officers. His victim was also taken home where he lingered from Sunday afternoon, the time of the assault, until early on the morning of the following Wednesday, and then died without having gained consciousness. The only excuse for the assault that caused his death, presented at the trial, was that the defendant was insane. But the testimony on this point shows, in our opinion, nothing more than that the defendant occasionally drank intoxicating liquors to excess, and that when he did so he was more than ordinarily violent and unreasonable, even for a drunken man. When in this condition, he sometimes threatened to kill himself, and acted in a fitful, unreasonable way, as drunken men often do. Several of the witnesses who detailed these acts of the defendant were then asked by his counsel whether they considered him insane or not, but the presiding judge refused to permit these questions to be answered. In this ruling we think the judge erred, for such testimony has often been held to be competent by this court. Green v. State, 64 Ark. 523, 43 S.W. 973; Shaeffer v. State, 61 Ark. 241, 32 S.W. 679.

But, if we assume that these witnesses would have answered that the defendant was insane, this testimony would have shown nothing more than that the use of intoxicating liquors had a very bad effect on the defendant, and that they produced in him a species of temporary insanity; but this kind of insanity is ordinarily no excuse for crime.

"The law," says Mr. Bishop, "deems it wrong for a man to cloud his mind...

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  • Borland v. State
    • United States
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    • March 26, 1923
    ... ... Another objection made to instruction No. 19 is that the ... court limited drunkenness as a defense to the charge of ... murder in the first degree, when he should have extended it ... to murder in the second degree. The objection is not tenable ... The court decided, in Byrd v. State, 76 ... Ark. 286, 88 S.W. 974, that, "as the specific intent to ... kill is unnecessary in murder in the second degree, under our ... statute, if one voluntarily becomes too drunk to know what he ... is about, and then, without provocation, assaults [158 Ark ... 46] and beats another ... ...
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