Harris v. State
Decision Date | 31 May 1915 |
Docket Number | 19 |
Citation | 177 S.W. 421,119 Ark. 85 |
Parties | JIM HARRIS v. STATE |
Court | Arkansas 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:
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:
Another witness stated that John Daniels,
Another witness details the occurrence as follows: 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,
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:
Appellant testified in his own behalf that deceased and a whole crowd of people came to the supper and dance.
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:
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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