Johnson v. State

• Decision Date: 10 July 1911
• Citation: Johnson v. State, 139 S.W. 1117, 100 Ark. 139 (Ark. 1911)
• Parties: JOHNSON v. STATE
• Court: Arkansas Supreme Court

139 S.W. 1117

100 Ark. 139

JOHNSON v. STATE

Supreme Court of Arkansas

July 10, 1911

Appeal from Jackson Circuit Court, R. E. Jeffery, Judge; affirmed.

STATEMENT BY THE COURT.

Appellant George Johnson, was indicted by the grand jury of Jackson County for the crime of murder in the second degree, the indictment charging him, in proper form, with the killing of one John Duncan. The appellant himself testified as follows "Was out in Richwoods looking for some fellows that had been doing some fighting, and had a bench warrant for Horace Luster, charging him with the crime of carrying a pistol. Luster and the deceased had been in a fight out there at Richwoods, and had come back over here together. They had been running together. I drove up in front of the Duncan house, and when I got out of the buggy the deceased ran out of the back way, and I saw him and his brother in there together, and I thought it was the Luster boy. They (the people) told me they were over there together. I did not pay any attention to John Duncan, at least, I thought I wasn't, but he ran out of the back way and through a cotton field and through some sorghum cane, and I followed him. I was a right smart piece behind him, and as I ran into the cotton field I think I fired three shots into the ground trying to stop him--just fired to scare him. When he got to the fence to go into the big road, he seemed to be trying to get a gun or something, and I told him not to pull any gun on me. He pointed the gun at me, and I holloed to him to drop the gun, but he never did it, and I shot at him across the top of the cotton. I did not try to kill him. I tried to hit him in the leg. He didn't throw the gun down, and I shot a second time, when he threw the gun down at the end of the cotton row and then went over the fence and down to the house 75 or 80 yards. He was standing 60 or 80 feet from the fence when I shot. I got him at the house and put the handcuffs on him.

Don't remember just what he said; I think he said wait until his father came. I thought all the time it was Luster that I was after; didn't know Luster; had a description of him, and they told me he was the bigger of the two. Had a bench warrant for Luster. Didn't shoot him for the purpose of making the arrest; shot him because he drew a gun on me; saw the pistol; gave it to Mr. Neal, the sheriff. At the time all this happened, I was deputy sheriff of Jackson County. I was told that Luster was at Mr. Duncan's, the father of the deceased. That is the reason I drove down in front of Duncan's and stopped my horse. I holloed at the fellow that was running to halt; took my pistol out about a hundred yards from the house; shot twice at him. I didn't keep the handcuffs on him long."

The jury returned a verdict against appellant finding him guilty of voluntary manslaughter, and assessing his punishment at three years' imprisonment in the State penitentiary. Judgment was pronounced accordingly, and this appeal has been duly prosecuted.

Judgment affirmed.

Jones & Campbell, for appellant.

The evidence concerning transactions after the shooting was prejudicial. 66 Ark. 499; 69 Ark. 558; 79 Ark. 85. The defendant was denied a substantial right by not permitting all of his statement to go to the jury. 69 Ark. 599. The argument of State's counsel was highly prejudicial. 93 Ark. 443; 48 Ark. 106; 41 Wis. 282; 77 Ark. 64; 63 Ark. 174. The court has no discretion to withhold instructions appropriate to any theory of the cause sustained by competent evidence. 82 Ark. 499; 57 Ark. 57; 29 Ark. 248; 80 Ark. 439.

Hal L. Norwood, Attorney General, and W. H. Rector, Assistant Attorney General, for appellee.

The appeal should be dismissed because the transcript was not filed within the time prescribed by law. Kirby's Dig., sec. 2596.

The argument of counsel, complained of was nothing more than the expression of an opinion, and could not result in prejudice. 88 Ark. 62; 84 Ark. 131; 95 Ark. 548; 71 Ark. 62; 72 Ark. 461. Appellant can not complain of any action of the court in excusing or refusing to excuse any of the talesmen, because the record does not show that he had exhausted all of his challenges. 93 Ark. 168; 91 Ark. 585; 50 Ark. 492; 69 Ark. 322.

OPINION

WOOD, J., (after stating the facts).

Various assignments of error were contained in the motion for a new trial, but we deem it unnecessary to discuss any of these, because, in our opinion, the testimony of appellant himself, which states the case in the most favorable light that it can be considered in his behalf, makes him guilty of murder in the second degree, and he therefore cannot complain of a verdict of the jury that convicts him of manslaughter. According to appellant's testimony, he was seeking to arrest one Luster, and through mistake killed John Duncan, under the circumstances detailed by him, because he believed that Duncan was Luster, and that Luster was attempting at the time to shoot him. But, if the deceased, Duncan, had been Luster in fact, still appellant, under the facts stated by him, could not have set up the plea of self-defense in taking the life of Luster, but would have been guilty of murder in the second degree in so doing. Through appellant's own negligence and violation of the statute, he brought on the necessity for the shooting which he says he did in order to prevent the deceased from killing him. Appellant says: "I didn't shoot him for the purpose of making the arrest; shot him because he drew a gun on me." A peace officer can only make an arrest for a misdemeanor where a warrant is...