Ford v. State, 4726

• Decision Date: 30 April 1953
• Docket Number: No. 4726,4726
• Citation: 222 Ark. 16,257 S.W.2d 30
• Parties: FORD v. STATE.
• Court: Arkansas Supreme Court

Page 30

257 S.W.2d 30

222 Ark. 16

FORD v. STATE.

No. 4726.

Supreme Court of Arkansas.

April 30, 1953.

Sims & Clarke, Monticello, for appellant.

Tom Gentry, Atty. Gen., and Thorp Thomas, Asst. Atty. Gen., for appellee.

HOLT, Justice.

This case is here on a second appeal, Ford v. State, Ark., 248 S.W.2d 696. On a second trial, a jury again found appellant, Ford, guilty of involuntary manslaughter and fixed his punishment at a term of eighteen months in the State Penitentiary. From the judgment is this appeal.

For reversal, appellant first questions the sufficiency of the evidence. While admitting that he killed Bunyan Wigley, appellant contends that he did so while performing his duty as Town Marshal of Monticello, that Wigley was the aggressor, was drunk at the time, attacked appellant with a knife and that he shot Wigley in his own necessary self defense. The evidence shows that Ford had observed Wigley who seemed to him to be intoxicated and ordered him home. A few minutes later, Wigley accosted Ford and wanted to know his authority for ordering him home. Immediately thereafter, Ford drew his pistol and shot Wigley five or six times, killing him on the spot. Wigley was shot at least three times in the back. While there was some evidence on the part of Ford that Wigley was advancing on him with a knife, it was a question for the jury to determine whether, in the circumstances, Ford was warranted in killing him in necessary self defense. It was all important to determine whether Ford had reasonable grounds to believe that the danger was so pressing that in order to save his own life or prevent bodily harm, it was necessary to kill Wigley. Fowler v. State, 130 Ark. 365, 197 S.W. 568.

On the plea of self defense, the court gave the following instruction which appears to be a fair exposition of the law applicable: 'In ordinary cases of one person killing another in self defense it must appear that the danger is so urgent and so pressing that, in order to save his own life or to prevent himself receiving great bodily harm or injury, the killing of the other person is necessary; and it must appear also that the person killed was the assailant. But if the assault by the person killed is so sudden and so violent as to make it reasonably apparent that it would be as dangerous to retreat as not to retreat, then the killer would not be bound to retreat but to save his own life or prevent himself receiving great bodily harm, may stand his ground and repeal the attack by force, even to the extent of taking the life of the assailant. But if one may safely retreat, at any time during the altercation, without immediately endangering his own life, or his bodily safety, it is his duty to retreat and not to take life; and if he does not, he cannot claim self defense.'

We think the evidence, which we do not detail, while conflicting, when considered in its strongest light in favor of appellee, as we must, was substantial and sufficient to support the verdict. Herron v. State, 202 Ark. 927, 154 S.W.2d 351.

There was no error therefore in the trial court's refusal of appellant's request for an instructed verdict of acquittal at the close of all the evidence for the reason that such verdict may be directed only when the evidence raises no material question of fact for the jury's determination. Ruffin v. State, 207 Ark. 672, 182 S.W.2d 673.

Appellant next contends that he was tried before a jury of only eleven jurors 'contrary to Article 2, Section 7 of the Constitution of the State of Arkansas, and contrary to Sections 43-1901, 43-2108 and 43-2109 of Arkansas Statutes of 1947.'

The answer to this contention is that appellant not only agreed in open court to be tried before a jury of eleven, but made no objections, saved no exceptions and did not assign this as error in his motion for a new trial. The applicable rule is announced in Yarbrough v. State, 206 Ark. 549, 176 S.W.2d 702, 703, in this language: "On appeal from the circuit court, this court only reviews errors appearing in the record. The complaining party must first make an objection in the trial court, and this calls for a ruling on his objection. An exception must then be taken to an adverse ruling on the objection, which 'directs attention to and fastens the objection for a review on appeal.' The matters complained of, together with the objections and the exceptions to the ruling of the court, must be brought into the record by a bill of exceptions; and the motion for a new trial can serve no other purpose than to assign the ruling or action of the court as error."

Next appellant argues that it was error calling for reversal for the trial court and the prosecuting attorney to mention, over his objections, the first trial and reversal of this case. Appellant says: (1) 'The court erred by explaining to the jury, on their voir dire examination, about the case having been previously tried, and, upon appeal to the Supreme Court, had been reversed, and been sent back to the lower court for a re-trial, saying among other things, 'The Supreme Court reviewed the case and, not on the facts, but reversed it because I did not permit a knife, that was found, to be introduced in evidence,'' * * * and 'in allowing the attorney for the State to tell the jury, in his opening statement, that the case had been previously tried, a conviction had, and a reversal on appeal, among other things saying: 'The Supreme Court made a finding contrary to the finding in this case, and, therefore, sent it back for trial. The Supreme Court did not rule on the facts in this case whatsoever, but sent the case back to be tried by a jury of this county.''

In Stanley v. State, 174 Ark. 743, 297 S.W. 826, we held: (Headnotes 2 and 3) 'In a prosecution for murder, it was not error for the prosecuting attorney in his opening statement to tell the jury of a previous conviction and reversal by the Supreme Court. (3) Much discretion as to what may be stated by the prosecuting attorney in his opening statement is given to the trial court, which...