Mabry v. State

• Decision Date: 15 October 1906
• Citation: 97 S.W. 285,80 Ark. 345
• Parties: MABRY v. STATE
• Court: Arkansas Supreme Court

97 S.W. 285

80 Ark. 345

MABRY v. STATE

Supreme Court of Arkansas

October 15, 1906

Appeal from Sebastian Circuit Court, Greenwood District; William L Moose, Judge, on exchange of circuits; affirmed.

Judgment affirmed.

T. B Pryor, for appellant.

1. The court erred in its instructions numbered 17 and 18. There is no authority, either in the statute or decisions of this court, for the use of the words "in the act" of killing, etc. It is sufficient if the danger appeared to the defendant to be urgent and pressing. Kirby's Digest § 1798; 68 Ark. 310; Hoard v. State, ante, P. 87; 69 Ark. 658; 21 Cyc. 800.

2. The jury should have been instructed that what constitutes great bodily injury was for them to determine. 60 Ark. 82. Instructions 3 and 4 asked for by defendant should have been given. 21 Cyc. 1050; Ib. 1057; 73 Ark. 126; 140 Ala. 1; 67 Ark. 594.

Robert L. Rogers, Attorney General, and G. W. Hendricks, for appellee.

OPINION

BATTLE, J.

Serf Mabry was indicted by the grand jury of Sebastian County, at the July term, 1906, of the Sebastian Circuit Court for the Greenwood District, for murder in the first degree, committed by killing Grant Smith by striking him on the head with a hammer. At the same term of the court he was arraigned, pleaded not guilty, was tried, found guilty of voluntary manslaughter, and his punishment was assessed at two years in the penitentiary. He moved for a new trial, his motion was overruled, and he appealed to this court.

The evidence tended to prove the following facts: On the morning of the 13th of April, 1906, the father of the defendant ordered him to take a horse and go down to the place on the railroad right of way they had cultivated the year previous, and to "break it up." He was proceeding to do so when he reached the place where he had the year before taken the fence down for the purpose of taking the horse in and out of the field, and saw Grant Smith in a field plowing. When he commenced knocking the staples out of the post which held the wire that constituted the fence, Grant Smith ordered him away, and threatened him with violence if he brought the horse on the inside. He hitched the horse to the fence, and returned to his father and informed him of what had occurred, and they went to the place where he undertook to enter the right of way at the time he was ordered away, and his father ordered him to tear down the fence, which he proceeded to do by knocking the wires from the posts with a hammer which he had brought with him for that purpose, when Smith again interfered and forbade his doing so. Words followed. Smith approached the father, who was at the time attempting to lead the horse into the field, at the same time picking up two rocks, one in each hand. As he approached near where the defendant and father were, he dropped the rocks, but the defendant testified that he did not see him do so. When he came within reach, or striking distance, of the father, he drew back his hand and arm for the purpose of striking the father with his fist. As he did so, the defendant struck him on the head with the hammer, and from this blow Smith died within two days afterwards.

The court gave to the jury the following instructions over the objections of the defendant:

"17. If the jury believe from the evidence that the defendant honestly believed, without fault or carelessness on his part, that, at the time he struck the blow that killed the deceased, deceased was in the act of killing the father of defendant or of inflicting upon him great bodily injury, and that the danger appeared to the defendant to be urgent and pressing, then the defendant was justified in assaulting and striking the deceased to prevent his father from being killed or from receiving great bodily injury.

"18. But the defendant would not be justified in assaulting and striking the deceased unless it appeared that deceased was in the act of killing defendant's father or inflicting upon him great bodily injury. If deceased was in the act of assaulting and beating defendant's father, with no manifest intention of killing him or inflicting upon him great bodily injury, the defendant would be guilty of some degree of unlawful homicide; and this would be true, although deceased was in the wrong in his assault upon defendant's father."

And the court refused to instruct the jury, at the request of the defendant, as follows:

"1. You are instructed that if the defendant believed, at the time that he struck Smith, that Smith was in the act of inflicting upon defendant's father serious bodily injury, or if the defendant believed that Smith was about to inflict upon his father serious bodily injury, then the court tells you that the defendant would under such circumstances be justified in assaulting and striking the deceased to prevent serious bodily injury being inflicted upon his father, and you should acquit.

"2. What constitutes serious bodily injury, and whether the circumstances in any case are such as to justify one in believing that such an injury is about to be inflicted, are matters to be determined by the jury.

"3. The defendant, under the law, is entitled to every reasonable doubt; and if there is a reasonable doubt in your mind as to whether defendant believed his father's life was in danger. or that his father was in danger of receiving great bodily injury at the time he struck Smith, then you should give him the benefit of the doubt and acquit him.

"4. In a case of this kind the question for the jury to determine is not whether the life of a person was in danger, or whether he was in danger of receiving bodily injury, but whether under all the circumstances it appeared to the defendant that his father's life was in danger, or that his father was in danger of receiving great bodily injury at the time he struck Smith. If so, then the court tells you that he was justifiable in striking him."

The appellant's objections to the instructions copied in this opinion are: they told the jury that the appellant was not justified in assaulting and striking the deceased, Grant Smith, to prevent his father from being killed or receiving great bodily injury, unless the deceased was in the act of killing the father of the defendant or inflicting upon him great bodily injury; and were calculated to lead the jury to believe that it must appear to them that the deceased was about to kill the father or inflict upon him a great bodily injury before they could lawfully find the defendant not guilty. We do not so understand the instructions. The first clearly told the jury that if the defendant, not the jury, "honestly believed, without fault or carelessness on his part, that...