Hulsey v. State

• Citation: 164 S.W. 273,111 Ark. 510
• Parties: HULSEY v. STATE
• Decision Date: 23 February 1914
• Court: Arkansas Supreme Court

164 S.W. 273

111 Ark. 510

HULSEY v. STATE

Supreme Court of Arkansas

February 23, 1914

Appeal from Phillips Circuit Court; J. M. Jackson, Judge; affirmed.

Judgment affirmed.

Fink & Dinning, for appellant.

In its instruction on the question of insanity the court laid down a wrong test for the guidance of the jury, when it stated "Before the defendant can be excused on the ground of insanity, the jury must believe from the evidence that the defendant was at the time of the killing without sufficient reason to know what he was doing, or had not sufficient reason to know right from wrong, or that, as a result of mental unsoundness, he had not then sufficient will power to govern his acts by reason of some insane impulse which he could not resist or control." 54 Ark. 588; 186 U.S. 413 46 L.Ed. 1225; 55 Ark. 259.

Wm. L Moose, Attorney General, and Jno. P. Streepey, Assistant, for appellee.

If the instruction errs in not confining the jury to the particular act charged against appellant, that error was cured by the court's giving at appellant's request a correct instruction covering this point and no prejudice resulted.

Moreover, a general exception was not sufficient to call the court's attention to the defect. 106 Ark. 362; 109 Ark. 138.

OPINION

MCCULLOCH, C. J.

Appellant, W. C. Hulsey, shot and killed one Frank Stewart on September 3, 1913, in Phillips County, Arkansas, and the grand jury of that county returned an indictment against him for the crime of murder in the first degree. He was convicted of murder in the second degree and prosecutes an appeal to this court from the judgment.

There is no denial of the fact that appellant killed Stewart. It was done in the presence of several witnesses, and appellant tried to justify on the ground that he shot Stewart in necessary self-defense.

It is also claimed that there was evidence tending to show that he was insane at the time the killing occurred.

Both of these questions were submitted to the jury by instructions.

It is conceded that all of the instructions upon self-defense and other questions in the case, except that of insanity, were correct and that the verdict of the jury is conclusive. A reversal of the judgment is sought on the ground that the court erred in its instruction on the question of insanity.

It may be conceded that the instruction on that subject was incorrect according to the law announced by this court. Bolling v. State, 54 Ark. 588, 16 S.W. 658.

But we are convinced, after careful analysis of the testimony, that there was nothing to justify the submission of the question of insanity to the jury. There is no testimony tending to show that appellant was insane at the time of the killing, or at any other time. Appellant's wife was the stepdaughter of Stewart, and she lived with Stewart and his wife (her mother) at the time she intermarried with appellant. That was about two years before the killing occurred. They lived together for a time, and then separated, the wife returning to the home of her parents, where she lived for a considerable time. Three or four months before the killing occurred, appellant and his wife began living together again and moved to West Helena, a suburb of the city of Helena. Stewart lived seven or eight miles out in the country from Helena. There was ill-feeling between appellant and Stewart and wife on account of the separation of appellant from his wife. During the period of separation and while appellant's wife was living at Stewart's house, he (appellant) went to Stewart's house to visit his wife and baby, and Stewart drew a gun on him, struck him over the head and otherwise mistreated him. It appears, from the testimony, that appellant charged Stewart, not only with causing his wife to leave him, but also with having illicit relations with her. Appellant frequently spoke to his...