Johnson v. State
| Decision Date | 04 October 1915 |
| Docket Number | 142 |
| Citation | 179 S.W. 361,120 Ark. 193 |
| Parties | JOHNSON v. STATE |
| Court | Arkansas Supreme Court |
Appeal from Cleveland Circuit Court; Turner Butler, Judge; affirmed.
STATEMENT BY THE COURT.
On the night of April 22, 1914, Frank Armstrong was killed by appellant in Celveland County, Arkansas. Armstrong, after a hard day's work, being very tired, had retired early. Carroll Hopson had heard that Armstrong had been making some derogatory remarks about his (Hopson's) wife. Hopson had married the appellant's sister. Hopson, in company with the appellant, Bud Miller and Coot Childers, on the night of the killing, started to the home of Armstrong for the purpose of seeing him in regard to what he was reported to have said concerning Mrs. Hopson. When they got within one hundred yards of the house, all stopped except Carroll Hopson. He went on up to Armstrong's house. He called to Armstrong stating that he wanted to see him, whereupon, Armstrong arose and dressed and went with Hopson to where others of the party were. This was about 9 o'clock at night. About two hours later Armstrong was found dead in the road near his home. His body was lying near a thicket in a dense part of the woods. His left arm was stabbed, all the muscle on same being cut and the arm was broken above the elbow; it was a smooth break. There was another wound also on the left arm and a wound on the left side and another wound on the ninth rib. The body was badly cut, and was covered with blood.
There was testimony to the effect that on the day before the killing, appellant said that he went over to have a talk with Armstrong about remarks that Armstrong had been making about his (appellant's) people. He said, "I did not hit him but once." Again, he said, "I thought that I hit him only once or twice." Appellant made further statements to the effect that Armstrong had "knifed" him and that he had "knifed" Armstrong.
There was testimony on behalf of appellant tending to prove that he and Armstrong were good friends, and that they were neighbors; that Carroll Hopson, appellant's brother-in-law, told appellant on the night of the killing that he was going to see Armstrong to get him to quit talking about his wife; that appellant told Hopson that he would go with him, and did go; that he and Hopson and Miller and Childers went up near Armstrong's house, and when Carroll Hopson and Armstrong returned to where appellant and the others were waiting, Hopson accused Armstrong of making statements about his wife. Armstrong denied having made the statements attributed to him, and there was some controversy over the matter, in which the appellant participated, and during the conversation appellant said, "Since you admit talking about my people, I want you to quit tagging after my children when you are passing my house, and I don't want you to come on my place any more." To this Armstrong replied: "You God-damned little devil, you must think I am afraid of you," and started at appellant, whereupon the fight ensued, and shortly afterward Armstrong said "Take him off boys, he has cut me to pieces." Appellant then turned and walked away; said he was hurt and was going home. Appellant sustained a severe knife wound in his shoulder, which was about three inches in width under the surface, and as a result of which appellant was confined to his bed several days.
Appellant stated that he did not go over there with murder in his heart or to abuse Armstrong, and was going to let the matter pass if Armstrong would quit talking about his sister. He thought because they were members of the same Woodman lodge, he could get him to quit talking the way he had been doing.
An open knife was found sticking in the ground near Armstrong's head. The knife was a large-sized barlow.
The indictment charged appellant with the crime of murder in the first degree in the killing of Frank Armstrong. No objection is urged to the sufficiency of the indictment. Appellant was convicted of the crime of murder in the second degree and was sentenced to twenty-one years in the State penitentiary. He duly prosecutes this appeal. Other facts will be stated in the opinion as we discuss the assignments of error which appellant urges as grounds for a reversal of the judgment.
Judgment affirmed.
H. S. Powell and Paul G. Matlock, for appellant.
1. The court erred in refusing to grant the peremptory instruction requested by appellant. Proof of the corpus delicti, together with the admissions of the defendant were not sufficient to sustain a conviction for any degree of homicide. The statements made by appellant did not amount to a confession but only an admission of participation in the crime. An admission is distinguished from a confession. See 30 Cal. 157; Greenleaf on Ev., volume 1, page 170; Enc. of Ev., volume 3, page 298.
2. The evidence of witness Mosely was inadmissible as it tended to impeach the testimony of witness Hopson on a collateral matter. 16 Ark. 568; 36 P. 73; 101 Ark. 153.
3. Instruction 5 is erroneous in that it tells the jury that notwithstanding the mitigating circumstances proven by the State, the burden was on defendant to establish his innocence. 76 Ark. 113; 101 Ark. 153.
4. Instruction 12 was erroneous in that it gave the jury the right to say whether or not appellant's danger was urgent and pressing, whereas they should have been told that if the defendant believed at the time of the killing that he was in danger of death or receiving great bodily harm, that the killing was justified. 67 Ark. 594; 59 Ark. 132. This instruction is in conflict with defendant's instruction No. 3. An erroneous instruction is not cured by a correct one on the same subject. 85 Ark. 52; 93 Ark. 573.
5. Instruction 14 was error, because it told the jury that they might disregard the testimony of a witness which they believed to be true, if they found that such witness had testified falsely in part. 82 Ark. 545.
6. Instruction 15 is error because it leaves out of consideration the defense of apprehension of danger.
7. The integrity of the jury was violated in that two of the jurors were prejudiced against appellant, and the State, after attacks on their competency, only had these jurors deny the statements attributed to them.
8. The verdict is not sustained by the evidence.
Wm. L. Moose, Attorney General, and Jno. P. Streepey, Assistant, for appellee.
1. Instructions 1-6, inclusive, are copies of sections 1761-1766, Kirby's Digest, and instructions 11 and 12 are copies of sections 1797, 1798, of Kirby's Digest.
2. Instruction 14 on credibility of witnesses was approved in 85 Ark. 64-70.
3. Instruction 15 has been approved in following cases: 68 Ark. 268; 95 Id. 428-431; 99 Id. 576-580; 104 Id. 394-408; 110 Id. 410-415; 117 Ark. 233.
Instruction No. 3 for appellant was correctly modified. 104 Ark. 345; Kirby's Digest, 1797.
5. There was no error in admitting the evidence of witnesses Mosely et al., as by instruction No. 6, asked by appellant, their testimony was limited to the purpose of impeachment.
6. There was no error concerning the bias of jurors. 85 Ark. 64.
7. The judgment should be affirmed.
OPINIONWOOD, J., (after stating the facts).
The appellant contends that the court erred in not instructing the jury, at the close of the evidence on behalf of the State, to return a verdict of not guilty. The court did not err in this ruling.
The testimony on behalf of the State tended to show that Armstrong was killed on the night of April 22, 1914, and that he was killed by a knife in the hands of some third party. The identity of the appellant was established by his admission to the effect that on that night he had cut Armstrong with a knife. The circumstances adduced on the part of the State tending to show that Armstrong, after he had retired for the night, was called from his bed and requested to go to the place where he was killed, and the manner in which he was killed as indicated by the numerous wounds he had received, were sufficient of themselves to warrant the jury in finding that there was an unlawful killing. The corpus delicti being thus established and appellant having admitted that he was the one who "knifed" Armstrong, it then devolved upon him to prove circumstances of mitigation, that justified or excused the homicide, there being no proof on the part of the State which made it sufficiently manifest that the offense committed only amounted to manslaughter, or that the accused was justified or excused in committing the homicide. Kirby's Digest, section 1765; Brock v. State, 101 Ark. 147, 141 S.W. 756.
Carroll Hopson, a witness on behalf of the appellant, was asked on cross-examination, this question: "Do you know a negro named John Mosely?" and answered, "Yes." He was then asked: "What did you want with his pistol the day before the killing?" and answered, "I didn't have it." He further testified, in answer to questions, that Mosely did not get any pistol from him the day after the killing; that he did not have Mosely's pistol a day or two before the killing, nor any time that year.
John Mosely testified in rebuttal that on the night that Armstrong was killed, Carroll Hopson had his (Mosely's) pistol; that he brought it home the next morning. The appellant moved the court to exclude the testimony of John Mosely. The court overruled the motion.
The court did not err in this ruling. The testimony of Mosely was competent as original evidence. It tended to establish the fact that on the night of the killing, Hopson was armed with a pistol. Now, the jury were warranted in inferring that appellant and Hopson, on the night of the killing, had entered into a conspiracy to see Armstrong, and in case he did not make satisfactory explanation in regard to the alleged...
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