Johnson v. State

• Decision Date: 01 July 1893
• Citation: 23 S.W. 7,58 Ark. 57
• Parties: JOHNSON v. STATE
• Court: Arkansas Supreme Court

23 S.W. 7

58 Ark. 57

JOHNSON v. STATE

Supreme Court of Arkansas

July 1, 1893

Appeal from Faulkner Circuit Court, ROBERT J. LEA, Judge.

Judgment reversed and cause remanded.

J. H Harrod for appellant.

1. The instruction given for the State was erroneous. The question of the degree of the offense was for the jury to determine. It was not accompanied by an explanation of the degrees of homicide, and was not so guarded as to allow the jury to infer an abandonment of the purpose to kill, from the circumstances of the homicide. 29 Ark. 248. It was erroneous because it was based upon and recited facts not in evidence. 36 Ark. 127; 54 id. 336.

2. The ninth instruction should have been given as asked by defendant, and its modification was error. It ignored entirely the question of abandonment of the difficulty in good faith.

3. The tenth instruction should have been given. 52 Ark. 45.

4. The modification of the twelfth was error and prejudicial.

5. It was error to modify the fourteenth and especially so to modify it verbally. 51 Ark. 177.

6. The verdict is not sustained by the evidence.

James P. Clarke, Attorney General, for appellee.

1. There is no prejudicial error in the instruction given for the State. 49 Ark. 543; 54 id. 4.

2. It is true the ninth instruction is open to criticism because as modified it does set forth the theory of abandonment of the conflict by defendant in good faith; but the instruction was predicated upon another phase, and the court modified so that it would correctly state the law applicable to that phase. As the court was not asked to instruct on the theory of abandonment of the attack, the objection fails. The court gave sec. 1553, Mansfield's Digest.

3. The fourteenth instruction is not very clear in itself, and it may be conceded that it is not very accurate as a declaration of law. The proposition asserted had no bearing upon the issue before the jury. Appellant's plea was self defense--not that he was an officer attempting to make an arrest. If incorrect, the jury were not misled.Thompson Charging the Jury, sec. 123; 22 Ark. 207.

OPINION

HUGHES, J.

The appellant, J. S. Johnson, was convicted of murder in the second degree for the killing of one Williams, and has appealed to this court. The killing was not denied, but the defendant contends that it was done in self defense. The defendant was, at the time of the killing, the constable of the township in which the killing occurred, and contends that, at the time he killed the deceased, the deceased was advancing upon him with a drawn stick and striking at him because the defendant, as constable, had told him he would arrest him, and had told him to consider himself under arrest for an assault, which he contends the deceased had made upon Manning, a brother-in-law of the defendant, to prevent the said Manning from taking from the possession of the deceased a plow that belonged to the defendant, the possession of which he contends the deceased had taken without right and without his consent.

So much of the evidence only as will throw light upon the declarations of law given and refused by the court at the trial, will be stated in substance as it appears in the abstract of appellant, which is admitted by the State to be correct.

Williams, the deceased, was a share-cropper on the place of J. F. Johnson, the father of the appellant, whose contract with Williams was that he would furnish him with team and tools to cultivate his land. J. S. Johnson, the appellant, was also cultivating land on the farm, and owned his tools. The deceased had taken the defendant's plow without the defendant's consent. The defendant had gone to the deceased and got his plow, and informed the deceased that he would need the plow for several days. On returning to his field early the next morning, the defendant found that his plow had been taken away, and thought, from tracks he saw, that the deceased had taken it again. He returned to his father's house and told him that the deceased had his plow, and requested his father to get the plow, reminding him that it was his duty to furnish the deceased with tools. The father of the defendant thereupon requested his son-in-law, Manning, to go and get the plow, saying that the deceased was friendly to Manning. Manning, who was on a visit with his wife and child to his father-in-law, and was about ready to start home, said he would not go if there was to be any trouble, but, being assured by the defendant that there would be no trouble upon his part, consented to and did go to the field where the deceased was plowing, which was perhaps about one hundred yards from the residence of J. F. Johnson. The defendant followed behind Manning, and there is evidence tending to show that Wash Johnson, the brother of the defendant, also went along with them.

They approached the deceased as he came to the end of a cotton row, in which he was plowing, as it appears, with the defendant's plow. They spoke to the deceased, saying "Good morning;" and Manning said, "You are plowing her out," to which the deceased replied, "Yes." Manning then said to Williams that Mr. Johnson sent him over to get the plow, and to say to him that he would get him another plow, if he wanted another. Williams replied that he would not let the plow go till he got another. Manning thereupon stepped forward, according to the testimony of Williams' wife, who states that she was present, and said, "My name is Manning, don't you know me," and, as he said this, stooped to unhitch the horse of the deceased from the plow, and Williams then drew a stick, and, Mrs. Williams says, "then Jim and Wash Johnson drew their pistols. (The defendant was called, familiarly, "Jim Johnson.") Manning picked up the plow, and Jim said to him, 'Put down the single tree,' and Manning did it. Manning then started off with the plow, and the defendant told him to put down the plow and take the stick away from Williams. Jim said to Mr. Williams, 'Consider yourself under arrest;' and Mr. Williams said, 'I will not be arrested by you;' and then Jim, the defendant, fired."

Mrs. Williams, who was the only person present, save the deceased, Manning, Jim and Wash Johnson, says that when the second shot was fired, her husband, the deceased, was falling, and was upon the ground when the last shot was fired, and that he expired immediately; that at the first shot they were ten feet apart.

It appeared that there had previously been some bad feeling between the defendant and Williams, the deceased, and that the defendant, some time previous to the killing, had been told that Williams had threatened his life, and that Johnson had said that he did not want any trouble and would mind his business, but that he was on his own premises, and did not propose to be run off.

The defendant, in his testimony, states that when Manning stepped up to the plow next to the horse, "Williams picked up a stick and stepped toward Manning," that he told Williams to lay the stick down, that he was not going to have any trouble, and for him to behave himself. He said: "I told him if he did not put his stick down, I would arrest him. He said, 'You will have to call in some of your neighbors to help you.' I told him again, if he did not lay down his stick, I would arrest him. He started toward me with his stick drawn, and advanced toward me, and I told him to stop, but still he came on. He came very close, striking at me with his stick, when I shot the first time. He struck again, and I shot the second time. I was preparing to shoot again when I saw he was hit. * * * I was constable of the township, and carried my pistol all the time because I thought I had a right to do so. My brother Wash did not go over with Manning and myself."

There was some testimony tending to contradict Mrs. Williams, and to show that she was not...