Harris v. State

Decision Date31 May 1915
Docket Number19
Citation177 S.W. 421,119 Ark. 85
PartiesJIM HARRIS v. STATE
CourtArkansas Supreme Court

Appeal from Lafayette Circuit Court; George R. Hayhie, Judge reversed.

STATEMENT BY THE COURT.

The facts are substantially as follows: The appellant is a negro. On the 10th of February, 1915, there was at his house what the witnesses designate in the record as a festival, to which the negroes in the neigborhood were invited, and where they had a supper and dance. Along about 2 or 3 o'clock in the morning, as the witnesses say, there was a "considerable fuss in the house."

One of the witnesses for the State, describing it, says: "Mr Johnnie (referring to John Daniels, the deceased), said 'This is Uncle Johnnie Daniels talking; now come and let's dance.' A woman told him not to call her name. He replied he was not scared of her. Jim Harris (appellant) was standing in the middle of the door, and met the woman. He had his pistol in his hand and commenced to shoot and shot five times. Daniels fell in the floor. He had nothing in his hand."

Another witness stated that Daniel came to the festival late in the night, and there was a big crowd in the house.

Another describes the fuss as follows: "There was a squabble among some girls. John Daniels (the deceased) stepped on a girl's foot, and told her to go ahead. She started toward Harris, who met her half-way. Harris come up to Daniels and commenced to talk. He cussed and shoved and shot him."

Another witness stated that John Daniels, "Spoke there to Mitchell Marlowe, and they were squabbling, and he said there wasn't no use in that. At that time Jimmie (Harris) walked over and says, 'John, what's the matter?' and Johnnie says, 'Nothing; I just told these fellers about there was no use squabbling,' and he (John Daniels) says, 'Mr. Daniels is around here.' Jim Harris says 'Yes, and Mr. Jimmie is around here,' and that time Jimmie said, 'John, you get out of here,' and Johnnie spoke and said, 'You give this festival and opened the doors for everybody to have a good time,' and Jimmie spoke up and says, 'You get out of here; don't there'll be hell and a whole lot of it,' and John spoke and said, 'Let it be hell and a whole lot of it,' and that time Jimmie commenced shooting. John Daniels, at the time of the shooting, had his right hand out and his left hand in his pocket."

Another witness details the occurrence as follows: "Mr. Mitchell and Sue and Dude was in the corner. Mitchell and Sue was fussing, and Mr. John walked up and spoke to Mitchell about fussing with a little girl, and told him he ought to be ashamed to be fussing with her, and Mitchell talked about knocking her head off, and Mr. John told him he ought to be ashamed to be talking about knocking a little girl's head off, and that time Willie Taylor come over there in the corner, and what she said to Mr. Johnnie, I don't know and he says, 'Go on, I am not talking to you,' and she went over to cousin Jimmie (Harris) and cousin Jimmie (Harris) come over there and says, 'What is the trouble?' and Mr. John (Daniels) says, 'Nothing,' and cousin Jimmie (Harris) says, 'Go on out, and Mr. John (Daniels) had his side to him and I just put my hand on his shoulder and tom him to go on out; and cousin Jimmie (Harris) says, 'Go on out, hurry, go out, there'll be hell and plenty of it,' and Mr. Johnnie (Daniels) says, 'Let it be hell,' and that time he shot him." This witness, on cross-examination, stated that John Daniels asked him for a knife to open some whiskey with.

Another witness stated that "they danced two sets while I was there, and after that they all got up in the corner, and that was when the fuss commenced. " This witness stated that he did not hear any cursing at all before the shooting commenced. He also stated that John Daniels told him after he was shot that Harris shot him for nothing.

Another witness stated, "I don't know how it started, but when I knowed anything they was over there in the corner squabbling, and I heard somebody say there was going to be shooting, to get out of here, there was going to be shooting, and I looked over there and they was standing up in the corner squabbling and cussing one another, and Mr. Jimmie shoved him and shot him twice, then stepped back about three steps and shot him three times more. I didn't see John (the deceased) with nothing."

Witnesses for the State testified that they did not see any pistol, and that John Daniels, the deceased, did not have a pistol.

The testimony by the appellant and several witnesses in his behalf tended to show that he gave a supper and dance to the negroes on the night of the fatal rencounter, and that the deceased, John Daniels, just before he was killed, was creating a disturbance in the house, and that the appellant protested, asked him to desist and to get out of the house, whereupon he refused and attempted to shoot appellant, and thereupon appellant fired upon him and killed him.

Several of the witnesses stated that John Daniels was cursing and that Harris told him that if he wanted to fight anybody to go out in the road and fight it out, that he didn't want any fighting done in his house. A witness stated that John Daniels was cursing, and exclaimed that he was "the baddest son-of-a-bitch in the house." This witness also stated that he heard John say he "would kill him, God damn him."

One of appellant's witnesses described what took place as follows: "He (John Daniels) was walking around there in the house cussing among them before they commenced fussing. He was dancing before he commenced fussing. After he quit dancing he commenced walking around the house cussing, with a pistol in his hand. When I saw him he was walking around there in the floor with his pistol in his hand kinder down to his side, and when Mr. Jimmie Harris went to ask him to stop cussing, and if he wanted to fight to go out doors, John spoke and said he was a God damned man; couldn't nobody make him do nothing, and he throwed his hand toward Mr. Jimmie Harris and Mr. Jimmie knocked his hand back and commenced shooting."

Appellant testified in his own behalf that deceased and a whole crowd of people came to the supper and dance. "About an hour after they started to dancing, two women got to scrapping around there, and I told them to hush, or they would have to get out of the house, and the women hushed and went on dancing; and they come to the bar and commenced drinking, and about fifteen or twenty minutes afterward they all got over in the corner, and John Daniels commenced cursing over there, and I went over there and asked him what the matter was, and he said 'God damn it, they have been raising hell all night,' and he was the baddest man in the house, and he was going to do some fighting, and I says, 'No, John, don't fight; I give this supper for the people to have a good time,' and I told him if he wanted to fight to go outdoors, and when I told him that he run right out of the corner with a pistol in his hand, and it scared me, and I commenced backing away from him and jerked my pistol out so he could see it; thought maybe that would keep him off of me, and he commenced cursing me, and says, 'God damn you, I will kill yon before I get out of here; and he commenced coming up on me, and I shoved him back, and he come up on me again and grabbed me, and I shoved him back and commenced shooting. I was scared he was going to shoot me, and I shot him to keep him from shooting me."

The court gave instructions on the law concerning the different degrees of homicide and self-defense. No objection is urged to any instruction except No. 10, given at the instance of the State, which is as follows:

"10. If you believe from the evidence in this case that the defendant, armed with a deadly weapon, sought the deceased with a felonious intent to kill him, or sought or brought on, or voluntarily entered into the difficulty with the deceased with the felonious intent to take his life, then the defendant can not invoke the law of self defense, no matter how imminent the peril in which he found himself placed."

The jury returned a verdict finding appellant guilty of murder in the first degree, and from the judgment of the court sentencing him to be electrocuted he prosecutes this appeal.

Judgment reversed and cause remanded.

Allen H. Hamiter, for appellant.

1. The facts and circumstances testified to by the witnesses did not justify the giving of instruction 10. They show that appellant, as host to the persons invited to his house, was acting, not in an unfriendly manner toward the deceased, but in accordance with his rights and his duty toward his guests in trying to preserve the peace. No malice, deliberation or premeditation is shown, and this instruction excluded appellant's plea of self-defense. 73 Ark. 399.

2. The evidence does not sustain a conviction either of murder in the first degree or murder in the second degree, because it is not sufficient to show premeditation, nor deliberation nor malice aforethought. Wharton on Homicide, 167; 118 N.C. 1145; 24 S.E. 722; 11 Ark. 455; 56 Ark. 8; 35 Ark. 585; 20 Ark. 250; 38 Ark. 221; 3 Kan. 450; 6 Neb. 136; 71 Mo. 218; 20 Tex. 522; 1 Tex. 159; 40 Ark. 511; Anderson's Dict. 334; Black's Dict. 348; 2 Bouvier Dict. 363-4.

3. Where the evidence is not sufficient to sustain a conviction for the degree of murder found by the jury, this court has often exercised the right to reverse and remand the case for new trial, or, at the election of the State, with directions to enter judgment for a lesser degree of murder. That principle ought to apply here. 69 Ark. 189; 21 L. R. A. (N. S.) 20, and note; 82 Ark. 97; 56 Ark. 8, 19; 70 Ark. 272; 29 Ark. 248; 76 Ark. 615; 73 Ark. 315; 34 S.W. 262.

Wm. L Moose, Attorney General, and...

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