Garrett v. State
| Decision Date | 31 May 1926 |
| Docket Number | (No. 27.) |
| Citation | 284 S.W. 734 |
| Parties | GARRETT v. STATE. |
| Court | Arkansas Supreme Court |
Appeal from Circuit Court, Bradley County; Turner Butler, Judge.
R. M. Garrett was convicted of involuntary manslaughter, and he appeals. Affirmed.
Wilson & Martin, of Warren, for appellant.
H. W. Applegate, Atty. Gen., and John L. Carter and Darden Moose, Asst. Attys. Gen., for the State.
Appellant was indicted for the crime of murder in the first degree, alleged to have been committed by shooting and killing one Henry V. Browne, and upon his trial was convicted of involuntary manslaughter, and given a sentence of one year in the penitentiary. It is insisted that the verdict is contrary to the undisputed evidence, and that there was no testimony warranting the submission of the question of involuntary manslaughter.
Upon the question of the sufficiency of the testimony to support the verdict returned it may be said that the following is a brief summary of the testimony. The deceased operated a ferry at Moro Bay, and appellant, who was a fisherman, had a fish dock near the ferry, from which he loaded his fish to carry them to market. Deceased objected to appellant keeping his fish dock near the ferry and the men had quarreled about the matter. Deceased habitually went armed, and on the morning when he was killed was armed with a .45 caliber pistol. Appellant and two companions were at the fish dock early in the morning on the day the killing occurred, and deceased having heard them went down to the ferry. When he came to the ferry he inquired if any one wanted to be ferried across the bay, and when the men who were there answered that they did not he told them to get away from the ferry. Appellant, who was armed with a shotgun, inquired if deceased owned the road. Deceased then told appellant that he would give him a minute to get away, and that if he did not leave he would kill him. Appellant testified that when deceased made this remark he reached into his automobile, which was standing in the road, and got his gun, and when he did so he said to deceased, "Damn you, drop it," referring to the pistol which deceased had in his hand. He saw deceased raise the pistol as if he were going to rest it on his arm to improve his aim, when he fired, and the deceased fell.
The two eyewitnesses besides appellant himself were his friends and associates in the fishing business, and their testimony substantially corroborated that of appellant. The truth of their testimony was, of course, a question of fact for the jury. Appellant was armed with a shotgun with which he killed deceased, and upon the whole case we think the question was presented whether the accused was justified or excused in committing the homicide (section 2342, C. & M. Digest), and we have concluded that the testimony was legally sufficient to support the verdict returned.
It is insisted for the reversal of the judgment of the court below that the court erred in giving and in refusing to give certain instructions; that error was committed in admitting certain testimony; and that the court erred in keeping the jury together for such length of time as to practically coerce the jury to return a verdict.
Exceptions were saved to 19 of the instructions given by the court, but we will discuss only certain objections of a specific character, as the law of the case was declared in a general way under instructions which have often been approved by this court.
An instruction numbered 8 declared the law to be that "the mere fear on the part of appellant that the deceased might attack him would afford no justification to appellant to shoot deceased if deceased at the time was making no demonstration of a hostile nature towards or against the defendant and was making no attempt to inflict upon him any great bodily harm," the objection being that there was no testimony from which the jury could have found that deceased was not making a demonstration of a hostile nature; and a similar objection was made to an instruction numbered 14, which told the jury that appellant would have had no right to fire the fatal shot if he had no reasonable apprehension of immediate and impending injury to himself.
It is not questioned that these instructions are correct declarations of law; the insistence is that there was no testimony upon which to base them, as the undisputed testimony shows the fatal shot was fired in appellant's necessary self-defense. As we have said, the jury had the right to consider and determine the truth of the testimony offered by appellant and his associates, and we do not think the testimony and the inferences legally deducible therefrom are so undisputed that there was no question for the jury, and there was, therefore, no error in giving instructions 8 and 14.
Appellant requested an instruction numbered 2, reading as follows:
"You are instructed that the jury would not be warranted in indulging in any suppositions that would lead to the conclusion of the defendant's guilt; it would not be sufficient if there were grave suspicions or strong probabilities that he might be guilty; moreover, it would not be sufficient if the evidence in the case should strongly preponderate against the defendant and tend to show his guilt; but the evidence must be of such a nature and so conclusive as to impress upon the minds of the jury the fact that he is guilty and beyond a reasonable doubt (and if there are two equally reasonable views of the evidence which can be adopted, one of which leads to the conclusion of guilt, and one of which leads to the conclusion of innocence, it is the duty of the jury to adopt that view of the evidence that leads to the conclusion of innocence and acquit him); and (or) if there should arise in the minds of the jury on the whole case, a reasonable doubt as to whether the defendant be guilty, or innocent, the jury should give him the benefit of the doubt and acquit him."
The court struck out the sentence inclosed in the parentheses beginning with the word "and" and concluding with the word "him," and struck out the word "or" included in the parentheses and inserted in lieu thereof the word "and." Exceptions were saved to the modification of the instruction.
We think no error was committed in thus modifying the instruction. The instruction as given was a correct declaration of the law. It is not proper for the court to tell the jury what inferences should be drawn or deduced from the testimony, as this is the province of the jury. The portion of the instruction which was stricken out was calculated to mislead the jury. The jury might find that a certain view of the testimony was reasonable, but was not true. The duty of the jury is to ascertain, not merely whether certain testimony is reasonable, but whether it is true. The jury should determine what the facts are — what the truth is — and the facts thus found should be the basis of the verdict. If the jury were unable to say that the testimony established beyond a reasonable doubt the truth of certain facts which were essential to support the finding of guilty, the defendant would be entitled to an acquittal, but if this finding were made then a verdict of guilty should be returned. The instruction as given conformed to this statement of the law and was correct.
In the case of Cooper v. State, 145 Ark. 403, 224 S. W. 726, the accused requested an instruction which, if given, would have told the jury that if there were two reasonable constructions which might be placed on the testimony, one tending to establish the defendant's guilt, and the other his innocence, the jury should adopt the construction tending to establish innocence. This instruction was refused, and we held that no error was committed in doing so, for the reason, as was there said, that the question was which witnesses should be believed, and as the court had given appropriate instructions on weighing testimony, and also on the question of reasonable doubt, the instruction was properly refused. See, also, Cummins v. State, 163 Ark. 24, 258 S. W. 622; Barker v. State, 135 Ark. 404, 205 S. W. 805.
Appellant requested an instruction...
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