Hoard v. State

• Decision Date: 23 July 1906
• Citation: 95 S.W. 1002,80 Ark. 87
• Parties: HOARD v. STATE
• Court: Arkansas Supreme Court

95 S.W. 1002

80 Ark. 87

HOARD v. STATE

Supreme Court of Arkansas

July 23, 1906

Appeal from Ouachita Circuit Court; Charles W. Smith, Judge affirmed.

Judgment affirmed.

H. P Smead, for appellant.

Robert L. Rogers, Attorney General, and G. W. Hendricks, for appellee.

RIDDICK J. BATTLE, J., not participating.

OPINION

RIDDICK, J.

The defendant, W. H. Hoard, was indicted by the grand jury of Ouachita County for murder in the first degree for killing Ely Ford by shooting him with a pistol. On a trial he was convicted of voluntary manslaughter, and his punishment assessed at two years in the penitentiary. From this judgment he appealed.

The defendant and Ford were negro barbers, working in the same shop. Some altercation having arisen between them, Ford, who was the larger man of the two, started towards the defendant with a stick in his hand, and defendant shot him twice with a pistol. At the time the shots were fired Ford was some seventeen or eighteen feet away with two of the chairs of the shop between him and defendant. The first shot missed Ford, and the witnesses say that he stopped and seemed to be trying to get behind a chair when the second shot was fired. This shot entered his head, and produced almost instant death.

The defendant asked the court to instruct the jury that if "it appeared to defendant without fault on his part that he was in danger of losing his life or receiving great bodily harm, then in that event he was not required to wait until the deceased got in reach of him with the stick before defending himself." The court modified this instruction by inserting therein the words, "acting as a reasonable person." The law, as thus declared, was that the defendant had a right to defend himself if it appeared to him "acting as a reasonable person, without fault on his part, that he was in danger of losing his life or receiving great bodily harm." Counsel for defendant contends that the trial court erred in modifying the instruction in that way. But if it appeared to defendant without fault on his part that he was in danger, that is to say, if defendant acted with caution in coming to the conclusion that he was in danger, he then acted as a reasonable person in coming to such conclusion. So it seems to us that the words added to the instruction did not change the sense of it, the phrase added being only a repetition in other words of what was said before. The only error committed by the court on adding these words was the rhetorical one of tautology, which in itself is not prejudicial, for the meaning of the instruction is not thereby altered.

If it had been shown that the defendant was a weak-minded person bordering on idiocy, then such a reference to a reasonable person might have been prejudicial, for the law is not so unreasonable as to require that one bordering on idiocy should in defending himself act as a reasonable person. But, when nothing is shown to the contrary, the law presumes the defendant to be a person of ordinary reason, and holds him accountable as such. In such cases our statute, as well as the decisions of this court, show that the trial court did not err in telling the jury that the defendant must act as a reasonable person. In other words, he must not only believe, but he must have reasonable cause to believe, that he is in immediate danger of loss of life, or of receiving great bodily harm, before he can lawfully slay his assailant. Kirby's Digest, § 1797; Palmore v. State, 29 Ark. 248; Brown v. State, 55 Ark. 593, 18 S.W. 1051; Velvin v. State, 77 Ark. 97, 90 S.W. 851; Allen v. United States, 164 U.S. 492, 41 L.Ed. 528, 17 S.Ct. 154. This is the law in most of the States, and is thus stated in a recent work: To justify taking life in self-defense, "it should appear that the circumstances in which the slaver was placed were such as would have produced the fear of death or great bodily harm in the mind of a reasonable man--one reasonably prudent, courageous and self-possessed. To justify the taking of human life, the law makes no discrimination in favor of a coward or a drunkard or any particular individual, but the circumstances must be such as to justify the fears of a reasonable man." 25 Am. & Eng. Enc. Law (2 Ed.), 262, 263.

Mr. Wharton, in his work on Criminal Law, makes a labored argument to show that this test of a reasonable man is inadequate. But, while we can agree to much that he says, some of his questions and illustrations indicate that he had an erroneous conception of the rule he is combating. For instance, to quote his language, after stating that some of the courts hold that the danger must be such as would move the fears of a reasonable man, he proceeds as follows: "But who is the 'reasonable man' who is thus invoked as the standard by which the apparent danger is to be tested? What degree of reason is he supposed to have? If he be a man of peculiar coolness and shrewdness, then he has capacities which we rarely discover among persons fluttered by an attack in which life is assailed; and we are applying, therefore, a test about as inapplicable as would be that of the jury who deliberate on events after they have been interpreted by their results. Or, if we reject the idea of a man of peculiar reasoning and perceptive powers, the selection is one of pure caprice, the ideal reasonable man being an undefinable myth, leaving the particular case ungoverned by any fixed rule. And that this ideal reasonable man is an inadequate standard is shown by a conclusive test. Suppose the ideal reasonable man would at the time of the conflict have believed that a gun aimed by the deceased was loaded, whereas in point of fact the defendant knew the gun was not loaded; would the defendant be justified in shooting down an assailant approaching with a gun the defendant knows to be unloaded, simply because the ideal reasonable man would suppose the gun to be loaded? No doubt that in such case no honest belief of the ideal reasonable man would be a defense to the defendant who knew that the belief was false and that he was not really in danger of life. And if the belief of the ideal reasonable man be not admissible to acquit, a fortiori it is inadmissible to convict." Wharton on Crim. Law (10 Ed.), § 489. Now, this argument and illustration of the learned author have often been quoted to show the fallacy of the rule which tests the conduct of the defendant by that of a reasonable person, but it does not seem to us to be of much force. First, his questions as to who is the reasonable man by whose conduct that of the defendant is to be judged, and what degree of reason must he possess, are answered by his own statement in the previous section that he must be a man of ordinary reason. This is the law both in civil and criminal procedure. When, in order to determine whether one has been guilty of negligence or not, it becomes necessary to test his conduct by comparing it with what we should expect of a reasonable person under the same circumstances, the reference is always to a person of ordinary reason and prudence. To quote the words of another author on this point, "the standard of duty is not the foresight and caution which this or that particular man is capable of, but the foresight and caution of a prudent man--the average prudent man, or as our books rather affect to say, a reasonable man standing in this or that man's shoes." Webb's Pollock on Torts (Am. Ed.), 540.

Second the illustration which Mr. Wharton makes in order to show that the test of a reasonable man is inadequate seems to be based on the erroneous assumption that the "reasonable man" referred to in the rule is some bystander who might have knowledge of material facts of which the defendant is ignorant, or be ignorant of facts of which the defendant had knowledge. But it is impossible, under the rule, to make such an assumption, for under the rule the...