Lamb v. State, 4650
| Decision Date | 02 April 1951 |
| Docket Number | No. 4650,4650 |
| Citation | 238 S.W.2d 99,218 Ark. 602 |
| Parties | LAMB v. STATE. |
| Court | Arkansas Supreme Court |
E. J. Butler, Forrest City, for appellant.
Ike Murry, Atty. Gen., R. Ben Allen, Sp. Asst. Atty. Gen., for appellee.
Appellant was convicted of second degree murder for the admitted homicide of John L. Gage. The motion for new trial contains five assignments.
I. Sufficiency of the Evidence. Assignments 1, 2, and 3 in the motion for new trial are embraced in this topic. Appellant and deceased, both mature men, had a dispute concerning cultivation of a six acre tract, and appellant claimed his life was threatened. He consulted his brother and others; and the next morning armed himself with a shotgun and went to his work in the field near the disputed tract. He and deceased soon met, and appellant shot the deceased, causing instant death. Appellant testified that he fired in necessary self-defense, and his witnesses tended to support his claim.
The witnesses for the State--none being an eye witness--testified to facts and circumstances tending to show that the killing was murder: deceased was shot twice in the head; the shots entered the skull behind the right ear and emerged from the skull near the left eye socket; two shots were fired some minutes apart; deceased, at most, had only a tractor crank handle and pocket knife as weapons; there was no struggle, fight or encounter at close range; appellant admitted deceased was at a distance of ten or eleven feet when the shots were fired; appellant had armed himself with a single barrel shotgun before leaving his home, and had sufficient time to reload the gun between the shots. One witness testified as to what the appellant told him about the killing: '* * * he (appellant) told us he got up that particular day and carried his gun to the woods with him, or to the thicket, and he left his gun there and went out where Mr. Gage was; he also stated that they finally resumed the argument they had the previous day, and Mr. Gage jumped off the tractor and grabbed the crank and that he (appellant) ran to the woods and got his gun and shot him.' Another witness testified that appellant gave him this version of the killing: '* * * he (appellant) said Mr. Gage took after him with a knife and the crank and he stayed out of his way and he said when he picked up the gun Gage said, 'You can kill me, Lamb, if you want to, but you will go to the electric chair,' and he (appellant) said he turned and he shot him.'
Considering all the testimony and all the facts and circumstances, including the course of the bullets through the skull of the deceased, it is clear that a question of fact was presented as to whether the appellant committed murder or acted in self-defense. When we view the evidence in the light most favorable to the jury verdict, as we do when the defendant appeals from a verdict of guilty, 1 we reach the conclusion that the evidence supports the verdict.
II. Refusal to Give an Instruction Requested by Appellant. This is Assignment No. 4 in the motion for new trial. The requested and refused instruction reads: 'The Court instructs the jury, that if any reasonable view of the evidence is or can be adopted which admits of a reasonable doubt of the guilt of the defendant, A. T. Lamb, then it is your duty to adopt such view and acquit him.' Appellant says that the instruction should have been given and cites Price v. State, 114 Ark. 398, 170 S.W. 235, as authority. The reason the trial court did not give the Instruction No. 3 was not because of any claimed vice or defect in it but because the trial court said the point had been covered by other instructions. In this we hold the trial court was correct:
(A) The Court told the jury: 'The burden in the whole case is on the State; and when evidence is introduced either on the part of the State or the defendant which tends to justify or excuse the act of the defendant, then if such evidence in connection with the other evidence in the case raises in the minds of the jury a reasonable doubt as to the guilt of the defendant, the jury must acquit.'
(B) Also, the Court told the jury: 'Under the law he is presumed to be innocent and that presumption attends and protects him throughout the trial or until such time as it is overcome by legal and competent evidence upon the part of the State.'
(C) Again, the jury was instructed:
(D) And, finally, the Court gave an instruction of several pages stating the various verdicts that the jury could render--i. e., first degree murder, second degree murder, manslaughter, and not guilty--and the instruction concluded in this language: ...
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