Lee v. State

• Decision Date: 28 May 1904
• Citation: 81 S.W. 385
• Parties: LEE v. STATE.
• Court: Arkansas Supreme Court

81 S.W. 385

LEE v. STATE.

Supreme Court of Arkansas.

May 28, 1904.

Appeal from Circuit Court, Polk County; Gibson Witt, Special Judge.

J. S. Lee was convicted of manslaughter, and appeals. Reversed.

Scott & Head, for appellant. Geo. W. Murphy, Atty. Gen., for the State.

HUGHES, J.

The appellant, J. S. Lee, was indicted by the grand jury of Little River county at the January term of the Little River circuit court for manslaughter committed by feloniously and willfully killing H. McGough by shooting him with a pistol loaded with powder and leaden balls, against the peace and dignity of the state of Arkansas. On motion of appellant the venue was changed to the circuit court of Polk county, where, at the September term, 1903, the appellant was tried before a jury, and convicted, and sentenced to two years in the penitentiary. Appellant filed a motion in arrest of judgment, which was overruled, and he then filed a motion for a new trial, which being overruled, he appealed to this court.

There are many questions raised by the motion for new trial, which relate mainly to alleged errors in the instructions as to the law given the jury in the cause. Without discussing here all of these, we notice such as we think erroneous and prejudicial, after careful consideration of the whole record in the case.

The court gave to the jury the following instruction No. 8, to which the appellant excepted, and makes the giving of it a ground of his motion for a new trial, to wit: "(8) The jury are the judges of the credibility of the witnesses from the manner of testifying, their means of observation, and their general conduct on the stand; and if they should believe that any of the witnesses have sworn falsely to any material fact in the case they are at liberty to disregard the whole statement of the witness so testifying." In the case of Bloom v. State, in 68 Ark. 336, 58 S. W. 41, this court said of a similar instruction: "The instruction is erroneous and prejudicial, according to the decision in Frazier v. State, 56 Ark. 244, 19 S. W. 838, which holds that, before you can disregard the testimony of a witness for false swearing, the false swearing must be willfully done." The error in this instruction is not cured by any other instruction given, and on account of the error in giving it over the objection of the appellant the judgment in this case must be reversed.

The appellant objects to instruction No. 10, because, he says, "it does not submit to the jury whether it appeared to the defendant that deceased was making an attack upon him," etc.; and he cites Smith v. State, 59 Ark. 132, 26 S. W. 712, 43 Am. St. Rep. 20, which is to the effect that, "to justify a killing in self-defense, it is not essential that it should appear to the jury to have been necessary; it is sufficient if defendant honestly believed, without fault or carelessness on his part, that the danger was so urgent and pressing that the killing was necessary to save his own life or to prevent great bodily injury." But we are of the opinion that this was covered by instruction No. 4, given by the court. No. 10 is as follows: "The court charges the jury that if they believe from the evidence in this case, beyond a reasonable doubt, that...