Carpenter v. State

• Decision Date: 18 April 1896
• Citation: 36 S.W. 900,62 Ark. 286
• Parties: CARPENTER v. STATE
• Court: Arkansas Supreme Court

36 S.W. 900

62 Ark. 286

CARPENTER v. STATE

Supreme Court of Arkansas

April 18, 1896

Appeal from Drew Circuit Court WILLIAM F. SLEMMONS, Special Judge.

Judgment affirmed.

Geo. W Norman, Robert E. Craig, and Wells & Williamson, for appellant.

1. The court erred in striking out the word "threats" in instruction No. 1, asked by defendant.

2. The court erred in refusing No. 3, asked by defendant; and in refusing Nos. 4 and 5.

3. Also in refusing Nos. 7, 8, 9, 10 and 11 asked by defendant.

4. The court erred in giving No. 5, asked by the state; and in giving Nos. 8 and 9.

5. Also in refusing Nos. 3, 4, 5, 6, 7, 8, 9, 10 and 11 as asked by defendant, and not of its own motion giving proper instructions in lieu of them.

6. It was error to refuse a continuance.

7. And to overrule the plea of former jeopardy as to the murder in the first degree.

8. Also to overrule defendant's motion to quash.

9. The court erred in not permitting defendant to prove, by Ben Burgess, a member of the grand jury which found the indictment, evidence given by Sallie Hannibal before said grand jury, and that it was different from her evidence read in the trial of this cause.

10. The court erred in this: After granting a subpoena duces tecum to the clerk of Ashley county to produce the grand jury book of 1892, and after it had been produced, in permitting the prosecuting attorney to say that said book should not see the light of day in this court, and in not allowing defendant's counsel to see and examine the evidence of Sallie Hannibal reduced to writing in said book, and to prove her evidence by Ben Burgess.

11. The court erred in refusing to allow defendant to introduce the evidence of Sallie Hannibal, as contained in the grand jury book, for the purpose of contradicting her testimony, as taken before the examining court.

12. It was error to permit the state to prove by R. L. Cone what the verdict of the coroner's jury was.

13. It was error to permit the state to introduce what purported to be an affidavit made by D. L. Moore on a former trial, on motion for new trial for said cause.

14. The transcript filed in the Drew circuit court does not show that the court had jurisdiction.

15. The special judge had no power to open and adjourn court in the absence of the regular judge.

16. The court erred in refusing to permit D. L. Moore, J. P. Clark and others to testify as to what W. O. and B. L. Carpenter stated to them as to the manner of the killing and who did the shooting, etc.

17. It was error to allow the verdict to be amended by inserting the words "murder in the first degree."

18. The court erred in permitting the state's attorney to argue that if defendants, B. L. and W. O., formed a design previous to the homicide to go and kill Hannibal, and in pursuance of such design did go to the premises of Hannibal for that purpose, then B. L. is guilty of murder in the first degree although W. O. did all the shooting, if Ben L. was present consenting thereto and ready to assist.

E. B Kinsworthy, Attorney General, for appellee.

1. The exceptions to the instructions are in mass, 54 Ark. 16. But, taking the instructions together, they contain no error. In order to justify on the ground of self-defense, it must appear that defendant, at the time he caused the death of deceased, was acting under a reasonable belief that he was in imminent danger of death or great bodily harm from deceased, and that it was necessary for him to strike the fatal blow in order to avoid death or great bodily harm, which was apparently imminent. Sand. & H. Dig., sec. 1676; 49 Ark. 543. If one is attempting to commit an aggravated felony upon either the person or property of another, he is justified in taking life; otherwise not. Sand. & H. Dig., sec. 1672. A man cannot set up self-defense until he has done everything reasonable in his power to prevent the killing. He cannot bring on a fight or difficulty, and then set up self-defense. 40 Ark. 459; 32 id. 585. The court's instructions as to reasonable doubt are the law. 29 Ark. 266. The 9th instruction given by the court is certainly the law. Sand. & H. Dig., sec. 1452; 42 Ark. 94.

2. There was no error in refusing appellants instructions. It was proper to strike out the word "threats" in the 1st. Sand. & H. Dig., sec. 1670; 2 Thompson on Trials, secs. 2160-2173. Threats alone, without any overt act or indication of intention to follow up the words with an assault, are not sufficient for the reasonable belief of imminent danger which is necessary to sustain the plea of self-defense. 77 Ala. 471; 36 Ark. 653; 62 Cal. 468. The 3rd, 4th, and 5th are abstract. W. O. Carpenter was not on trial. One in defense of his property must not kill the aggressor, but must find redress in the courts. 1 Bish. Cr. L. sec. 875. The slayer must be without fault. Appellant was not on his premises--he was not defending his castle. He did not use every means to avoid the killing. He used the first opportunity to bring it on. 1 Bish. Cr. Law. secs. 844, 869; Clark, Cr. Law. pp. 144, 146, and authorities. The 6th, 7th, 8th, 9th, 10th and 11th are not law. When a dwelling is assailed with intent to take life, or inflict great bodily harm, the owner or occupant may lawfully use such fatal means to protect himself and family as may be necessary. He is not bound to retreat, but may kill his assailant, if it reasonably appear to be necessary for the protection of the dwelling; but the killing of another to prevent a mere trespass upon property other than the habitation, and not to prevent a felony, is not justifiable or excusable. Sand. & H. Dig., sec. 1670; 1 Bish. Cr. Law, sec. 875; 71 Ala. 329; 59 Ala. 1; 89 Mo. 667; 60 Cal. 2. These instructions are all too general and unqualified. 29 Ark. 267; 29 id, 226. Appellant's theory of the homicide was covered by the 1st and 2nd instructions given for appellant. When the court has covered the law, it is useless to multiply instructions on the same point. 34 Ark. 649.

3. The using the word "February" for "January" was a mere clerical error, in no wise prejudicial. He made no objections to the grand jury. Mere slight irregularities in selecting and impaneling the grand jury, where no substantial right of the accused is affected, do not affect the validity of the panel. 9 Am. & Eng. Enc. Law, p. 3, note 17. These irregularities are waived by plea to the indictment. 29 Ark. 165; 42 id. 94; 40 id. 488.

4. No foundation was laid for the impeachment of Mrs. Hannibal. 37 Ark. 324. Contradictory statements cannot be used to impeach a witness after death has placed him beyond the power of explaining. 29 Am. & Eng. Enc. Law, p. 788.

5. The writs of certiorari cure all defects in jurisdiction charged by appellant.

6. The statements of the Carpenters to Moore and others, long after the killing, were no part of the res gestae. 3 Rice on Ev., sec. 80; 50 Ark. 397; 61 Ark. 52.

7. The record does not bear out appellant's objections as to the amendment of the verdict, or the remarks of the counsel for the state.

Robert E. Craig, for appellant in reply.

1. Defendant's theory was that he and W. O. armed themselves, and went to repair the fence of W. O., and, while on his own premises repairing his fence, which was a lawful act, deceased, seeing him there, left his house, crossed the public road, and went to where he was, and attempted to drive him away, drew his pistol, and attempted to shot W. O.; that W. O. or appellant shot and killed deceased to save the life of W. O. from imminent, pressing, and urgent danger, and that it made no difference which fired the fatal shot; both or either were justifiable. There was conflict of evidence, and this theory should have been presented to the jury under proper instructions. 29 Ark. 248; 47 id. 196; 50 id. 545; 52 id. 45; 58 id. 241; 8 Cal. 341; 19 S.W. 975.

2. It was impossible to lay any foundation to impeach Mrs. Hannibal. She was dead. Sand. & H. Dig., secs. 2959-60, are taken from the common law. Gr. Ev., vol. 1, 461-2-3. The rule is confined solely to cross-examination. It was error to refuse Burgess' testimony. Sand. & H. Dig., secs. 2042-3, 2054, 2055.

3. There was no such term as the "February" term, and the action of the commissioners was a nullity. 21 Ark. 200; Sand. & H. Dig., secs. 4265 to 4272, 4280, 4284, 4291; 58 Ark. 37.

BATTLE, J. Wood, J. , did not sit in this case.

OPINION

BATTLE, J.

Ben L. Carpenter was indicted in the Ashley circuit court for murder in the first degree; was tried, after a change of venue, in Drew county; and was convicted of the crime of which he was accused. He now brings the record of his trial and conviction to this court, and asks for a reversal of the judgment against him, and for a new trial.

The indictment was filed in open court by the grand jury on the 19th of January, 1892. The defendant was tried and convicted in August, 1893. The judgment of conviction was reversed by this court on appeal , and the cause was remanded for a new trial. After this, on the 24th of September, 1895, the defendant filed a motion to set aside the indictment because the commissioners who selected the grand and alternate grand jurors for the January term, 1892, of the Ashley circuit court (at which term this indictment was filed), stated in their indorsement on the same that the lists were for the February term, 1892, when they should have said that they were for the January term, 1892. The motion was denied.

On the 24th of September, 1895, the defendant filed a plea in which he alleged that, in a former trial of the issues in this prosecution, he had been convicted by a jury of the charge alleged in the indictment, but they failed to specify the degree of homicide of which they found him guilty in their...