Jett v. State

• Decision Date: 23 January 1922
• Docket Number: 103
• Parties: JETT v. STATE
• Court: Arkansas Supreme Court

236 S.W. 621

151 Ark. 439

JETT v. STATE

No. 103

Supreme Court of Arkansas

January 23, 1922

Appeal from Craighead Circuit Court; Lake City District; R. E. L Johnson, Judge; affirmed.

Judgment affirmed.

O H. Hurst, J. F. Johnston and E. L. Westbrook, for appellant.

1. The authenticated copy of the record of Gibson's indictment for and plea of guilty to the crime of robbery in the State of Missouri ought to have been admitted. It was a material issue under appellant's plea of self-defense, as to whether he or the deceased was the aggressor, and the general reputation of each for peace and quietude was admissible. 147 Ark. 524.

2. The three instructions requested by the appellant were not covered by any instruction given and should not have been refused. 93 Ark. 313.

J S. Utley, Attorney General, Elbert Godwin and W. T. Hammock, Assistants, for appellee.

1. The authenticated copy of the Missouri record was not admissible. He had the right to show the general reputation of the deceased and show that he was of a violent, turbulent and dangerous character, but that can not be shown by proof of specific acts of law violations. 3 Enc. of Ev. 27; Wharton on Homicide, 3 Ed., § 271; 13 R. C. L. 919-920; 88 Ark. 261; 100 Id. 561.

2. It was proper to instruct the jury to the effect that a private person has no authority to arrest, one charged with a misdemeanor, etc.

The instruction on the law of self-defense was also correct. If the defendant went armed with a deadly weapon to arrest the deceased on a warrant charging him with a misdemeanor, intending to make the arrest by using the weapon if it became necessary to subdue him, and if he shot and killed the deceased for the reason alone that he refused to submit to the defendant and be arrested, defendant was unquestionably guilty of murder in the first or second degree.

Appellant's theory of the case was thoroughly covered by the court's instruction numbered 11, and it was not error to refuse his requested instruction 1, 2 and 3.

Appellant entered only a general objection to instruction 14. If it was ambiguous or misleading, he should have made specific objection. 92 Ark. 237; 131 Id. 487; 59 Ark. 422.

OPINION

SMITH, J.

Appellant was convicted of murder in the second degree, and given a sentence of ten years in the penitentiary, and has appealed.

A warrant of arrest had been issued by a justice of the peace for the arrest of Clyde Gibson on a charge of disturbing the peace. Two officers undertook the service of this warrant, but they failed to find Gibson, and left the warrant with a Mr. Allen with the request that he give it to appellant for service. When the warrant was offered appellant, he at first declined to accept it, for the reason, as stated by him, that he was unarmed, and he knew Gibson to be a dangerous man, but he agreed to make the arrest if provided with a pistol for defensive purposes. A pistol was given appellant, and he accepted the warrant and undertook to serve it. Appellant found Gibson and read the warrant to him. Gibson made the statement that he would not submit to arrest except by a "real officer." The testimony is in conflict as to what happened after the warrant was read. According to the testimony on behalf of the State, Gibson started to walk away after the warrant had been read. Appellant told him to stop or he would kill him. Gibson continued to walk away, and appellant again told him to stop or he would kill him. Gibson continued to walk away, when appellant shot and killed him. According to appellant, he told Gibson to stop, that he had to do his duty, and that Gibson then stopped, turned suddenly around and threw his hand to his hip pocket, when, thinking Gibson was about to shoot him, he fired the fatal shot. It was shown that Gibson was unarmed at the time.

Appellant testified that he attempted to arrest Gibson because he thought it was his duty to do so, but that he used no force to effect the arrest until Gibson-- as appellant thought--attempted to draw his pistol, when he fired to protect himself.

Appellant was permitted to offer testimony to the effect that Gibson bore the reputation of being a quarrelsome, turbulent and dangerous man. But the court refused to permit him to offer in evidence an authenticated copy of the judgment of a circuit court in Missouri sentencing Gibson to the penitentiary upon a plea of guilty to a charge of robbery. Error is also assigned in giving and in refusing to give certain instructions.

No error was committed in refusing to admit the excluded record of Gibson's plea of guilty. Inasmuch as appellant pleaded self- defense, it was competent for him to show Gibson's general reputation for peace and quietude as a circumstance to be considered by the jury in determining who was the aggressor in the fatal encounter. But the testimony was properly limited to proof of general reputation. It is not competent in such cases to prove specific acts of violence or bad conduct. Hardgraves v. State, 88 Ark. 261, 114 S.W. 216; Coulter v. State, 100 Ark. 561, 140 S.W. 719; Campbell v. State, 38 Ark. 498; Palmore v. State, 29 Ark. 248; Carter v. State, 108 Ark. 124, 156 S.W. 443; Trotter v. State, 148 Ark. 466, 231 S.W. 177.

Appellant requested three instructions, all of which were refused. The first of these instructions was fully covered by another instruction given by the court. The second and third instructions requested by appellant read as follows:

"2. You are further instructed that should you find the defendant acting in good faith, fully believing that he was a legal officer and had a right to serve warrant and make arrest, and in so doing killed deceased, acting upon such actions, words or demonstration of deceased as would cause a reasonable person to believe the killing of deceased necessary to protect his own life, then you will find the defendant not guilty.

"3. You are instructed that, should you find the defendant, acting under the belief that he was authorized to serve the warrant on defendant and make the arrest, and in the discharge of what he believed to be his duty, deceased made a demonstration as if to draw a weapon, if you find such demonstration was made by deceased, the defendant, believing he would sustain great bodily harm or loss of life, defendant, without carelessness or negligence on his part, was justified in shooting deceased to protect himself."

Over appellant's objections the court gave instructions to the effect that appellant had no right to serve the warrant on Gibson, which was offered in evidence, and, over appellant's objections, gave instructions numbered 4 and 5 as follows:

"4. It is admitted in the record that the defendant was not an officer, and you are therefore instructed that he had no right or authority to serve the warrant in evidence on Clyde Gibson, deceased.

"5. You are instructed that a man cannot bring about a quarrel or encounter and then justify himself under the law of self-defense unless he in good faith endeavored to abandon the difficulty and did all within his power, consistent with his safety, to avert the necessity of the killing before the mortal injury was inflicted; and, if the jury believes from the evidence in the case that the defendant, being armed with a deadly weapon, went to the deceased for the purpose of arresting him on a warrant, charging him with a misdemeanor, and intended to make the arrest by using such weapon, if it became necessary to subdue deceased, and that deceased did no more than refuse to submit to defendant and be arrested, and that defendant shot and killed him for that reason alone, then you are instructed that defendant is guilty of murder in the first or second degree as defined to you in other instructions given in this case."

In addition, the court gave the usual instructions given in homicide cases where the plea of self-defense is interposed, but in these instructions made no reference to the fact that appellant claimed to have been acting as an officer. In other words, as the case was submitted to the jury appellant was stripped of any protection growing out of the fact that he believed he was discharging his duty and was within his legal rights in attempting to arrest Gibson. The correctness of this theory presents the real question in the case.

Objections were made to certain other instructions given, which we do not set out, as our discussion of the instructions which we do set out answers those objections.

It is conceded that appellant was not an officer, and that the action of the officers in leaving the warrant to be served by him clothed him with no authority to arrest Gibson; and this is, of course, the law. Appellant was a volunteer, and Gibson was under no...