Carlton v. State

• Decision Date: 20 October 1913
• Parties: CARLTON v. STATE
• Court: Arkansas Supreme Court

161 S.W. 145

109 Ark. 516

CARLTON v. STATE

Supreme Court of Arkansas

October 20, 1913

Appeal from Newton Circuit Court; George W. Reed, Judge; affirmed.

STATEMENT BY THE COURT.

Carlton was a constable in Newton County, Arkansas. One night in December, 1912, there was a box supper at a schoolhouse for the purpose of raising funds to purchase Christmas presents for the children. Some women requested Carlton to be present to keep the peace, as they had heard that a number of young men in the neighborhood had said they had ordered whiskey and had also said they were going to "can" the box supper. Carlton was at the schoolhouse. He told the brother of the deceased and a companion that if any one drunk came into the house amongst the women and children, he would arrest them. Carlton then went into the schoolhouse, and after he had gone, the deceased remarked, "B G , he could not arrest him."

Roscoe Barr, a brother of the deceased, entered the schoolhouse in a drunken condition, and approached the stove, around which the women and children were gathered. Carlton went to him and took him by the shoulder and led him or pushed him out of the room. The deceased followed Carlton and his brother out of the house. When deceased got outside, he shoved appellant loose from his brother with the statement, "No G d man could arrest his brother." Deceased put his hand either in his right hip pocket or into the opening of his bib overalls, with the remark, "You G d s of a b , you can't arrest me."

Carlton drew his revolver and commanded him to take his hands out of his pocket or to put up his hands. Deceased repeated the statement that he had made to Carlton, and made a motion as though to draw a weapon. The revolver that Carlton had was a borrowed one, with which he was not very well acquainted. The pistol was out of repair and would not stand cocked. Carlton had cocked the pistol with his right hand, but, believing that it had not caught, he took hold of the barrel with his left hand and cocked it again. This time he felt it catch and, thinking it was safely cocked, he took his thumb off the hammer. The hammer immediately fell, firing the pistol, the ball of which passed through appellant's finger and struck the deceased in the temple, killing him instantly. Some one grabbed or jerked the appellant around, and the pistol was again discharged, the ball entering the foundation of the school building back in the opposite direction from where appellant had been facing.

When the deceased was picked up and carried in the house, his knife was found lying upon the ground near his right hand. There was some dispute as to whether the knife was open or closed. Appellant stated immediately after the pistol was fired that it went off, but that he would have had to shoot the deceased anyway. The next day the appellant went to the county seat and voluntarily surrendered himself to the sheriff.

The above are substantially the facts as they were developed at the trial by the testimony for the appellant.

There was testimony on behalf of the State which tended to show that Carlton said to the deceased, "Hands up;" that Carlton drew his revolver and brought it up, holding it with both hands, when the same was fired. He said that he didn't aim to do it. Deceased's right hand, at the time, was on his brother's left shoulder, his left hand hanging down by his side, and not in his pocket. Witness didn't see him making any effort with his hands.

It was shown that Carlton said that he shot deceased accidentally. It was also shown that he stated that he shot him because he thought he had to do it to save his own life. He stated that he shot him because he didn't take his hands out of his pocket; that he thought he was going to draw something.

The appellant was tried for murder in the first degree, and the above is substantially the testimony upon which he was convicted of involuntary manslaughter and sentenced to two years' imprisonment in the State penitentiary.

Among other instructions, the court gave the following:

"The killing being proved, the burden of proving circumstances of mitigation that justify or excuse the homicide shall devolve on the accused, unless by the proof on the part of the prosecution it is sufficiently manifest that the offense committed only amounted to manslaughter, or that the accused was justified or excused in committing the homicide."

The appellant objected to the giving of the instruction, and also requested the court to modify it by adding the words "however, if, in the whole case, you have a reasonable doubt of the defendant's guilt, you will acquit him," which the court refused.

The appellant objected to the court's reading the section of the digest pertaining to voluntary and involuntary manslaughter, and at the time specifically requested the court to give a correct charge to the jury as to the law of involuntary manslaughter, which request the court refused further than the reading of the section of the statute, to which the appellant duly excepted.

The appellant requested the court to charge the jury as follows "I charge you that the indictment constitutes no evidence against the defendant; it is simply the means by which he is brought into court, and should not be considered by you even a circumstance against him. Upon the interposition of defendant's plea of not guilty to the charge, there arises the legal presumption that he is innocent, and this presumption is, within itself, sufficient to warrant an acquittal at your hands, unless overturned by the proof, and remains with the defendant as a complete defense until it is overcome by legal evidence that satisfies your minds beyond a reasonable doubt of his guilt."

The court refused this prayer for instruction, to which appellant excepted. The court, of its own motion, gave the following:

8. "The indictment is no evidence of the defendant's guilt. It is only the means of bringing the defendant into court, and when this is done, it has served its purpose."

9. "The defendant is presumed to be innocent, and this presumption clings to him through every material step of the trial until overcome by competent testimony sufficient to convince you beyond a reasonable doubt of the defendant's guilt."

Appellant complains that it was error to permit the prosecuting attorney to ask one of the State's witnesses with reference to what he testified before the grand jury, and to read to him in the presence of the trial jury from a book purporting to be the minutes of the grand jury, and asking the witness if he did not testify as was therein written.

The record shows that during the examination of the witness Walter Waters because of a rain and hail storm, the trial was suspended temporarily, and during the time of such suspension, one of the jurors, towit, J. N. Davis, without the knowledge or consent of the defendant, left the court room, and was gone for some length of time, and was not present in the court room when the court was ready to resume the trial and the further examination of the witness, and did not come back into the court room until after a wait of some minutes. Whereupon the court adjourned until the next morning at 7 o'clock, and, the jury being held together, were placed in charge of J. M. Brisco, special deputy sheriff, who was specifically sworn, as required by law.

The appellant makes the above one of his assignments of error in the motion for a new trial.

Judgment affirmed.

Troy Pace, for appellant.

Under the evidence, the offense at most amounted only to manslaughter, and it was prejudicial error to give an instruction which submitted any other question to the jury. Instruction No. 4, section 1765, Kirby's Digest, is only applicable where the evidence shows murder in one of the degrees, and was prejudicial in this instance. 71 Ark. 459. The modification requested, as to reasonable doubt, should have been given. 76 Ark. 489; Ib. 110; Ib. 517.

It was error for the court to refuse to give, at the specific request of appellant, a correct charge as to what constituted involuntary...