Kinman v. State

• Decision Date: 19 November 1904
• Citation: 83 S.W. 344,73 Ark. 126
• Parties: KINMAN v. STATE
• Court: Arkansas Supreme Court

83 S.W. 344

73 Ark. 126

KINMAN v. STATE

Supreme Court of Arkansas

November 19, 1904

Appeal from Crawford Circuit Court, JEPTHA H. EVANS, Judge.

Appeal from a conviction of manslaughter. The facts are stated in the opinion. Affirmed.

The instructions mentioned in the opinion as having been given by the trial court were as follows:

"5. At common law, and under the statutes of this State, no one, in resisting an assault made upon him in the course of a sudden brawl or quarrel, or upon a sudden rencounter, or in a combat on a sudden quarrel, or from anger suddenly aroused at the time it is made, or in a mutual combat, is justified or excused in taking the life of the assailant, unless he is so endangered by such assault as to make it necessary to save his own life, or to prevent a great bodily injury, and he employed all the means in his power, consistent with his safety, to avoid the danger and avert the necessity of killing. He cannot provoke an attack, bring on the combat, and then slay his assailant, and claim exemption from the consequences of killing his adversary on the ground of self-defense. He cannot invite or voluntarily bring upon himself an attack with the view of resisting it, and, when he has done so slay his assailant, and then shield himself on the assumption that he was defending himself. He cannot take advantage of a necessity produced by his own unlawful or wrongful act. After having provoked or invited the attack or brought on the combat, he cannot be excused or justified in killing his assailant for the purpose of saving his own life, or preventing a great bodily injury, until he has in good faith withdrawn from the combat, as far as he can, and done all in his power and consistent with his safety to avoid the danger and avert the necessity of killing. If he has done so, and the other person pursues him, and the taking of life becomes necessary to save life or prevent a great bodily injury, he is excusable. But the rule is different where a man is assaulted with a murderous intent. He is then under no obligation to retreat, but may stand his ground, and, if need be, kill his adversary.

"7. If deceased and his brother were at the time of the killing then immediately about to kill defendant or do him great bodily harm, and defendant, in order to save his own life or prevent great bodily harm to himself at their hands, shot and killed deceased, then he should be entirely acquitted. But if deceased and his brother were, at the time of the killing, then immediately about to do some bodily harm to defendant, but not to take his life or do him great bodily harm, and defendant shot and killed deceased to prevent his receiving some bodily harm less than great bodily harm or death, he cannot be acquitted as having acted in self-defense upon real danger; in such latter case, although the real danger would not justify defendant to kill deceased on the ground of real danger yet he might be justified on the ground of apparent danger as explained in the other instructions, if the evidence, in the judgment of the jury, warranted it. But if there was no danger, real or apparent, as explained in these instructions, the defendant cannot be acquitted on the ground of self-defense.

"8. If defendant was plowing in a field, and the deceased and his brother came along and acted in such a way as to induce the reasonable belief in the mind of the defendant, without fault or carelessness on his part in coming to such belief, that the...