Forehand v. State

• Citation: 11 S.W. 766
• Parties: FOREHAND <I>v.</I> STATE.
• Decision Date: 08 June 1889
• Court: Supreme Court of Arkansas

11 S.W. 766

FOREHAND

v. STATE.

Supreme Court of Arkansas.

June 8, 1889.

Appeal from circuit court, Pope county; G. S. CUNNINGHAM, Judge.

This was an appeal by defendant, Forehand, from a conviction of murder.

E. B. Henry and J. G. Wallace, for appellant. W. E. Atkinson, Atty. Gen., for the State.

PER CURIAM.

If the defendant's statement of what took place at the branch is true, then the killing was in self-defense, after the defendant had really and in good faith abandoned the pursuit of his victim. The jury's misconduct in taking the deceased's pistol and cartridges to the jury-room, and there experimenting with them, apparently for the purpose of testing the truth of the defendant's statement, was prejudicial to him. It was evidence taken by the jury out of the court, in the defendant's absence, which is prohibited by the statute, and contrary to the idea of fair and orderly proceedings. For this error the judgment must be reversed. The testimony of D. D. Wortham, W. H. West, and Mrs. J. T. Simpson, and that of James Fry, in so far as it related to the statements made by the defendant's wife, had no tendency to prove the issue, and should have been excluded from the consideration of the jury. The testimony of R. C. Bowden could become competent only to rebut some theory developed by the evidence for the defense; as, that the killing was done in a sudden heat of passion brought about by information of the wrong the deceased had done him. There is no serious question as to the sufficiency of the eighth instruction to put the law of self-defense fully before the jury, and give proper qualification to the sixth instruction. There was no error in the refusal of the court to give the seven instructions asked by the defendant. Reverse the judgment, and remand the cause for a new trial.