Ellis v. State

• Decision Date: 23 April 1962
• Docket Number: No. 5035,5035
• Citation: 234 Ark. 1072,356 S.W.2d 426
• Parties: Marsellis ELLIS, Appellant, v. The STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 426

356 S.W.2d 426

234 Ark. 1072

Marsellis ELLIS, Appellant, v. The STATE of Arkansas, Appellee.

No. 5035.

Supreme Court of Arkansas.

April 23, 1962.

Rehearing Denied May 21, 1962.

Kenneth Coffelt, Little Rock, for appellant.

J. Frank Holt, Atty. Gen., by Jack Holt, Jr., Asst. Atty. Gen., Little Rock, for appellee.

BOHLINGER, Justice.

A first degree murder information was filed against the appellant in the Saline Circuit Court on October 17, 1960. In that information appellant was charged with the murder of Pedro Rabb, alias Smiley Brown.

Upon a trial in the Saline Circuit Court, a jury found the appellant guilty of manslaughter and fixed his punishment by imprisonment in the State Penitentiary for seven years. To reverse this finding and judgment the appellant has appealed and for reversal relies upon the following points:

'1. The trial court erred in giving State's Instruction No. 9 over the general and specific objections of the appellant.

'2. The trial court erred in giving State's Instruction No. 10 over the general and specific objections of the appellant.

'3. The trial court erred in refusing to declare a mistrial at the request of the appellant because of the misconduct of the Prosecuting Attorney in his examination of defense witness, Jessie Johnson.'

In addition to these points, the appellant has argued in his brief that he was convicted of manslaughter when there was no proof of manslaughter ever introduced by the State and that the jury should have either found him guilty of first or second degree murder or acquitted him. With this theory we do not agree. Manslaughter is one of the degrees of murder and the act of the appellant in pleading self-defense placed the issue of manslaughter before the court.

In Bruder v. State, 110 Ark. 402, 161 S.W. 1067, this court said:

'* * * This court has held that where a jury believes that the defendant shot under the belief that he was about to be assaulted, but that he acted too hastily and without due care, and was therefore not justified in taking life under the circumstances, he is guilty of manslaughter. Allison v. State, 74 Ark. 444, 86 S.W. 409; Brooks v. State, 85 Ark. 376, 108 S.W. 205.'

In Middleton v. State, 158 Ark. 642, 240 S.W. 413, this court found there was evidence sufficient to make out a case of voluntary manslaughter notwithstanding the fact that the jury might, from the testimony, have convicted appellant of a higher degree of homicide. The appellant cannot complain if he is found guilty of a lesser offense than the evidence justifies because that finding inures to his benefit.

Among other matters, the appellant contends that the trial court erred in giving State's Instruction No. 9 which was as follows:

'You are instructed that manslaughter is the unlawful killing of a human being without malice, express or implied and without deliberation. Manslaughter must be voluntary upon sudden heat of passion, caused by a provocation apparently sufficient to make the passion irresistible. That is voluntary manslaughter.'

Instruction No. 9 should be read in conjunction with State's Instruction No. 10 which was as follows:

'You are instructed in this connection that if you have a reasonable doubt as to the degree of the offense, you must give the defendant benefit of the doubt and find him guilty only of the lower degree. In other words, if he is guilty and you have a reasonable doubt as to whether it is murder in the first or murder in the second degree, you must convict only of murder in the second degree. If you have a reasonable doubt as to whether it is murder in the second degree or manslaughter, you should convict him only of manslaughter.

'As I have stated to you, the burden of proof is upon the State to prove all the allegations in the indictment and that beyond a reasonable doubt. The killing being proved, the burden of proving circumstances of mitigation that justify or excuse the homicide shall devolve on the defendant. Unless by proof on the part of the State, it is sufficiently manifest that the offense amount to only manslaughter, or that the accused was justified or excused in committing the homicide.'

Instruction No. 10, above, is not the same instruction that was given by the trial court in Mode v. State, 231 Ark. 477, 330 S.W.2d 88. The instruction in the Mode case was as follows:

'The defendant, * * *, interposes a plea of self-defense, that the killing of * * * under the circumstances, constituted justifiable homicide. The burden of proof is upon the defendant, * * *, to prove such defense by a preponderance of the evidence.'

The error in the Mode case, supra, was the statement that the defendant in that case was required to prove such a defense by the preponderance of the evidence. We do not have that in the case before us. In this case the court instructed:

'The killing being proved, the burden of proving circumstances of mitigation that justify or excuse the homicide shall devolve on the defendant. Unless by proof on the part of the State, it is sufficiently manifest that the offense amount to only manslaughter, or that the accused was justified or excused in committing the homicide.'

This instruction follows the statute and a similar instruction has been approved by this court in Covey v. State, 232 Ark. 79, 334 S.W.2d 648; Brown v. State, 231 Ark. 363, 329 S.W.2d 521; Hogue v. State, 194 Ark. 1089, 110 S.W.2d 11, and Tignor v. State, 76 Ark. 489, 89 S.W. 96.

In the Brown case, supra, we said:

'* * * Appellant contends this instruction is misleading, in that the jury could feel that if there was a reasonable doubt of the guilt of Brown on the murder charge, they could still convict him of manslaughter. The instruction is copied from the statute (Ark.Stats. § 41-2246). In Tignor v. State, 76 Ark. 489, 89 S.W. 96, this court said: 'Again, the court gave section 1765 of Kirby's Digest [Ark.Stats. 41-2246], to the effect that, the killing being proved, the burden of proving circumstances that justify or excuse the homicide devolves upon the accused, etc. Now, this instruction is taken from the statute, and is the law; but it should have been accompanied with an instruction that on the whole case the guilt of the defendant must be proved beyond a reasonable doubt, so that...