Magness v. State

• Citation: 50 S.W. 554,67 Ark. 594
• Parties: MAGNESS v. STATE
• Decision Date: 04 March 1899
• Court: Supreme Court of Arkansas

50 S.W. 554

67 Ark. 594

MAGNESS v. STATE

Supreme Court of Arkansas

March 4, 1899

Appeal from Independence Circuit Court RICHARD H. POWELL, Judge.

Reversed and remanded.

J. C Yancey and W. S. Wright, for appellant.

The first instruction of the court was misleading, in that it told the jury that a specific intent "might be conceived in a moment." 25 Ark. 407; 36 Ark. 132; 51 Ark. 189. The court erred in so modifying the fourth and sixth instructions, asked by defendant, as to make them tell the jury that, to justify defendant in acting in self defense the acts and conduct of deceased had to be such as appeared to the jury to be sufficient "to induce a reasonable person to believe that they had a murderous intent." The danger is to be viewed from the standpoint of the defendant at the time, and the honesty, not the reasonableness, of his belief is to be weighed. 59 Ark. 132; Clark Cr. Law, 152. It was also error to exclude the evidence of witness Miller as to declarations made to him by one Freeze, a witness for the state, who was with deceased at the time of the killing because: (1) It tended to affect the credit of Freeze. 37 Ark. 85. (2) It tended to show animus. 12 Ark. 800, 30 Ark. 340; 34 Ark. 480; 24 S.W. 413; 28 S.W. 817; 42 Ark. 70; 10 Ia. 568; 37 Miss. 383; 6 N.Y. 345; 44 Ill.App. 27; 16 Ark. 534; 17 S.W. 366; id. 425; 16 N.Y.S. 748; 1 S.W. 459; 42 O. St. 426; 52 Ark. 274. (3.) It tended to show a conspiracy between witness and deceased. 1 Ros. Cr. Ev. 573; 64 Ark. 251. (4.) It tended to prove a threat against defendant. 55 Ark. 593. (5.) It was part of res gestae. 13 Ark. 236; 20 Ark. 216; 59 Ark. 422. (6.) It tended to contradict the evidence of Freeze. 8 Cox, C. C. 44; 3 Russ. Cr. 559 n.; 24 Ark. 620; 40 Ark. 487. It was error to refuse to allow counsel for defendant to tell the jury that the fact that defendant was a negro should not weigh against him.

Jeff Davis, Attorney General, and Chas. Jacobson, for appellee.

No particular length of time is required for the formation of a specific intent. 51 Ark. 189. The killing must appear to defendant, as a reasonable and prudent man, to be necessary to justify on the ground of self-defense. 29 Ark. 248. The evidence fails to show any conspiracy between deceased and Freeze. Hence evidence of latter's declarations was properly excluded.

BATTLE J. Absent HUGHES, J., WOOD, J.

OPINION

BATTLE, J.

George Magness was indicted by a grand jury of the Independence circuit court for murder in the first degree, committed by killing one Joe Owen. He was convicted of murder in the second degree, and his punishment was assessed at twenty-one years' imprisonment in the state penitentiary.

To sustain the indictment, the state introduced only one witness who was present when Magness struck the fatal blow. He was Dempsey Freeze, who testified as follows: "I come into Newark on the 11th day of December, 1897, and met up with Joe Owen there. He was drinking or drunk, and I commenced at him to go home. I got his as far as the railroad below Mr. Tom Magness' cotton seed house. There was a boarding car there on the side track. And when we come to the car, we crawled under a part of the car, and this man Magness was coming up the track with a wrench in his hand. Just before he got to us, Owen fell down. Magness remarked: 'He is pretty full, ain't he?' I said 'No; not much.' Owen said: 'If you don't like me, you don't have me to kiss.' The negro said: 'What's that?' and Owen said: 'Go to hell,' and Magness turned back, and struck Owen on the side of the head with the wrench. I was helping Mr. Owen up. He had fallen down, and that was all that was said. I had Owen about half up, and he was making no effort to strike defendant. After defendant struck him, he turned and went the other way up the track." On cross-examination he further testified that he saw John Miller, a short time before he and Owen went to the railroad track, in front of Bud Sturdevant's drugstore, but did not tell him that "no d d African could keep him off the track," and never had any such conversation with him.

The evidence adduced in the trial by the state showed that Owen died within a few days from the effect of the blow struck by Magness.

The defendant offered to prove by John Miller that he met Freeze about fifteen minutes before he heard that Owen was killed, near Bud Sturdevant's drugstore; that Freeze hit him a glancing lick with his shoulder, and said, "No African can butt me off the track;" but the court refused to permit him to do so; and defendant excepted. The defendant is a negro. He adduced evidence tending to prove that Freeze and Owen were under the influence of intoxicating liquor at the time they approached him; that they denounced him as a "black son of a bitch;" that Owen advanced toward him, and, threatening to kill him, placed his hand to his pocket as if in the act of drawing a weapon; and while Owen was in that position, Magness struck him, knocking him down; and while Owen was down, Freeze took something from his (Owen's) pocket, and placed it in his own.

The defendant asked, and the court refused to give, the following instruction: "The jury are instructed that if you believe from the evidence in this case that the defendant was first assaulted by deceased and his comrade with a murderous intent, defendant was not bound to retreat, but might stand his ground, and, if need be, kill his assailant; and if he struck the fatal blow believing that this was the intention of his assailants, that he was justifiable." But the court modified and gave it as follows: "You are instructed that if you believe from the evidence in this case that the defendant was first assaulted by deceased and his comrade with a murderous intent, defendant was not bound to retreat, but might stand his ground, and if need be, kill his assailant; and if he struck the fatal blow, believing that this was the intention of his assailants (and the acts and conduct of the deceased were such as to induce a reasonable person to believe that they had a murderous intent), then he was justifiable."

The defendant also asked, and the court refused to give, the following instruction: "You are instructed 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 the 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 prevent great bodily injury." And the court modified and gave it as follows: "You are instructed 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 the 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 prevent great bodily injury, (and the acts of the deceased were such as to induce a reasonable prudent person to believe the necessity existed.")

The court estopped the counsel of the defendant, in his argument before the jury after the close of the testimony, when he was referring to the fact that "the defendant was a negro, and that this fact should not be weighed against him by the jury," and told the jury that the argument was improper, and that "they had nothing to do with the question as to whether the defendant was a negro or not, and that they must try him as they would a white man."

The appellant, Magness, insists that the judgment of the trial court should be reversed, and a new trial granted to him, for the following reasons:

Because the court erred in excluding the testimony of John Miller.

Because the court erred in refusing to give the instructions as asked by him, and in modifying them as given.

And because the court erred in interfering with the argument of defendant's counsel.

His first contention is correct. The testimony of Miller should have been admitted. It was competent to impeach the credit of Freeze as a witness, and to show that he was biased against the defendant by prejudice against his race, and to strengthen the testimony of appellant's witnesses by showing that he was in that condition or "frame of mind" their testimony, if true, shows he was in when they testified that he participated with Owen in the attack upon Magness by vilifying him on account of his race.

The court erred in modifying the instructions asked by the defendant and copied in this opinion in the manner it did. Our statutes say: "In ordinary cases of one person killing another in self defense, it must appear that the danger was so urgent and pressing that, in order to save his own life, or to prevent his receiving great bodily injury, the killing of the other was necessary." But to whom must it appear that danger was urgent and pressing?

In Clark's Criminal Law it is said: "The authorities are overwhelmingly to the effect that it need only be apparently imminent, and that whether or not it was so in any particular case is to be determined by looking at the circumstances from the standpoint of the accused taking into consideration the relative strength of the accused and his assailant, and all the other circumstances. If to the accused there was a reasonably apparent necessity to kill to save himself, he will be excused, though to some one else there might not have seemed to be any such necessity, and though in fact there was no such necessity. Most of the cases are to the effect that the circumstances must have been such as to excite the fears of a reasonable man, and the accused must have acted as an ordinarily cautious and reasonable man would have acted; or, in other words, there must have...