Duncan v. State

• Decision Date: 19 November 1887
• Citation: 6 S.W. 164,49 Ark. 543
• Parties: DUNCAN v. STATE
• Court: Arkansas Supreme Court

6 S.W. 164

49 Ark. 543

DUNCAN v. STATE

Supreme Court of Arkansas

November 19, 1887

APPEAL from Little River Circuit Court, R. D. HEARN, Judge.

Judgment affirmed.

The appellant pro se.

In all felonious, violent, fierce or murderous attacks, the defendant may stand his ground and take the life of his assailant if necessary to prevent the commission of the felony, or protect his own person from great bodily injury etc., and he need not retreat. But in ordinary cases of simple assault, mutual quarrels or combat, and where the defendant has brought about the conflict, he must in good faith retreat and decline the conflict, and do all things in his power consistent with his safety to avert the necessity of taking life. Cases of Self-Defence, 155, 310, 28, 139 725, 733, 863, 277, 734, 814, etc.; 2 Bish. Cr. Law, sec 632; id., secs. 633, 624 to 639, 4th ed.; Roscoe Cr. Ev., 6th ed., 711, side; Mansf. Dig., secs. 1547-8-9; 29 Ohio St. 186; 23 Am. Rep., 733; 26 id., 52; Thacher's Cr. Cas., 471.

It is only necessary to show a reasonable cause to apprehend death or great bodily harm; it is not necessary that the danger be real; if apparent it is sufficient. Cases Self-Defence, 256, 298, 101, 647, 285, 267.

Reviews the Arkansas cases, and contends that the court erred in modifying instructions, so as to charge that a retreat was necessary under the evidence in this case.

Dan W. Jones, Attorney General, for appellee.

The killing being proved, the onus was on defendant to show justification. Mansf. Dig., sec. 1520.

If defendant was so situated that he could have gone away and thus averted the necessity of killing in order to prevent bodily harm to himself, it was his duty to have done so. 29 Ark. 229, 267; 40 Ark. 459; 36 id., 131; Mansf. Dig., sec. 1553; 32 Ark. 590.

OPINION

BATTLE, J.

The appellant was indicted in the Little River Circuit Court for murdering one N. B. Brooks. The jury found him guilty of murder in the second degree and fixed the term of his imprisonment in the penitentiary at five years. He moved for a new trial, which was denied, and the court pronounced judgment against him according to the verdict, and he appealed.

On the trial the defendant asked the court to give the following, among other instructions, to the jury:

"I. The defendant asks the court to instruct the jury, that justifiable homicide is the killing of a human being in necessary self-defence, or in defence of habitation, person or property against one who manifests, intends, or endeavors by violence or surprise, to commit a known felony; and, if in this case the jury believe from the evidence that the defendant had reasonable cause to believe that the deceased intended to take the life of the defendant, or do him some great bodily harm, by violence or surprise, and the danger was apparently imminent, the jury must acquit."

"II. The defendant asks the court to instruct the jury, that a defendant is justifiable in killing any person who attempts to commit murder, rape, robbery, burglary, or any other aggravated felony, although not specifically named, upon either the person or property of any person; and, if the jury believe from the evidence in this case, that the defendant had reasonable cause to believe that the deceased was approaching him with intent to take his life or commit any aggravated felony on his person, and the danger was imminent, and that he had done all that he could to avoid the difficulty, without retreating, in such case the defendant would not be required to retreat before taking the life of the deceased, and the jury ought in such case to acquit."

"VII. The court instructs the jury that if they believe from the evidence that the defendant had been sick and was weak and unable to enter into a personal conflict, scuffle or fight, in arriving at their conclusions as to the defendant's conduct and action, they will take into consideration his state of health; and if the jury believe the deceased with little or no provocation got out his knife and pursued defendant in such threatening attitude and made such threats toward defendant as to give the defendant reasonable cause to believe that the deceased intended to take his life or do him great bodily harm, and they further believe that the defendant retreated from the fence to the road, and the deceased crossed the fence in pursuit of defendant and the danger was apparently imminent, the jury must acquit."

"VIII. The court instructs the jury that no man is required to retreat if the danger would be increased or his life endangered thereby; and the jury in arriving at their verdict or conclusion, will take into consideration the defendant's state of health and strength and general physical condition; and if the jury believe from the evidence the deceased was advancing on the defendant with a knife drawn and the danger of defendant would have been increased, or his life endangered by retreating, the jury will acquit."

To the first instruction the court added the words: "Provided the defendant had employed all the means reasonably within his power, and consistent with his safety, to avoid the danger and avert the necessity," and gave it as amended; and struck out of the second instruction asked for, the words, "without retreating, in such case the defendant would not be required to retreat before taking the life of the deceased, and the jury ought in such case to acquit," and gave it as amended; and to the instruction numbered 7, which was asked by defendant, added the words, "provided that the defendant used all the means reasonably within his power and consistent with his safety to avoid the danger and avert the necessity of taking life," and gave it as amended; and refused to give the instruction numbered 8, and in lieu thereof gave the following:

"The court instructs the jury that no man is required to retreat if the assault upon him is so fierce that his life would be endangered thereby; and that the jury in arriving at their verdict or conclusion, may take into consideration the defendant's state of health and strength and general physical condition; and, if the jury believe from the evidence that deceased was advancing on defendant with a knife drawn, and the danger of the defendant would have been increased, or his life in as great danger, by retreating, the jury will acquit."

No one in resisting an assault made upon him in the course of a sudden brawl or quarrel, or upon a sudden rencounter, or in a combat on a sudden quarrel, or from anger suddenly aroused at the time it is made, is justified or excused in taking the life of the assailant, unless he is so endangered by such assault as to make it necessary to kill the assailant to save his own life, or to prevent a great bodily injury, and he employed all the means in his power, consistent with his safety, to avoid the danger and avert the necessity of killing. The danger must, apparently, be "imminent, irremediable and actual," and he must exhaust all the means within his power, consistent with his safety, to protect himself, and the killing...