McGaha v. State
| Decision Date | 28 November 1949 |
| Docket Number | 4580 |
| Citation | 224 S.W.2d 534,216 Ark. 165 |
| Parties | McGaha v. State |
| Court | Arkansas Supreme Court |
Appeal from Mississippi Circuit Court, Chickasawba District; Zal B Harrison, Judge.
Affirmed.
Claude F. Cooper, for appellant.
Ike Murry, Attorney General, and Jeff Duty, Assistant Attorney General, for appellee.
Appellant was charged with murder in the first degree in the killing of H. G. Blanchard. The jury found him guilty of murder in the second degree and fixed his punishment at eight years in the penitentiary. This appeal is from the judgment rendered on the jury's verdict.
There is little dispute in the evidence. Appellant and deceased were carpenters who worked out of the E. C. Robinson Lumber Co. at Blytheville, Arkansas. Appellant came to the company's place of business in the afternoon of June 19 1948, where he engaged in a quarrel with deceased. Appellant accused deceased of "double-crossing" him by employing another man to help deceased on a $ 60 construction job, when he had promised to give the job to appellant. After saying, "I ought to slap your damned head off -- I believe I'll do it," appellant slapped at deceased and missed him. He then slapped deceased in the face knocking him backward eight or ten feet. Deceased called to Boyne Haywood, an employee of the lumber company, who was standing nearby and said, "Haywood -- don't let him hit me." Haywood intervened and said to appellant, "Don't hit a man 30 years older than you are," and walked back to the carpenters' shop with appellant.
Deceased's nose was bleeding as he left and went to the city hall where he made complaint to the police and a warrant was issued for appellant's arrest. The Chief of Police telephoned the lumber company and appellant was told to report to the city hall. After deceased had been gone about an hour, he returned to the lumber company where appellant had remained.
Deceased stood in a driveway between two buildings of the company talking to a painter and another carpenter. When appellant saw deceased, he threw off his hat, ran and lunged at him and threw or knocked deceased down on some platform scales as he started into the company office in an attempt to avert the attack. Bystanders pulled appellant off deceased and escorted him into the office. Appellant then remarked, "By God, I think I'll go back and finish him up," and rushed back through the office door and struck deceased in the mouth with his fist knocking him down on the concrete floor of the driveway where he lay unconscious and motionless. Appellant then said, "Now, I guess that's the end of it," and walked into the office and said: "There he is, Haywood." Appellant was arrested at his home about an hour later.
Deceased was taken to a hospital where he died the following morning. The doctor attributed death to a cranial cerebral hemorrhage resulting from a fracture at the base of the skull. There was a laceration at the back of the head and blood from the nose was diluted with spinal fluid indicating the skull fracture. There was also evidence that the left side of deceased's face was bruised and swollen; that his lips and mouth were black and swollen and his nose was mashed flat. Deceased was 69 years of age and in good health prior to the killing. He made no hostile demonstration toward appellant and sought to avoid any difficulty with him at the time of each of the three assaults. Appellant was drinking, but was not visibly intoxicated.
The first three assignments of error in the motion for new trial challenge the sufficiency of the evidence to support the verdict. We think it proper to consider these assignments in connection with assignments 11, 12 and 14 which allege error in the court's refusal to give appellant's Requested Instructions Nos. 2, 3, and 5. The requested instructions would have in effect told the jury that appellant, under the evidence adduced, would be guilty of no greater offense than manslaughter.
It is argued that, since no weapon was used and the parties had previously been on good terms, there is insufficient evidence to sustain a conviction for any offense greater than involuntary manslaughter. Appellant relies on the cases of McClendon v. State, 197 Ark. 1135, 126 S.W.2d 928, and Bone v. State, 200 Ark. 592, 140 S.W.2d 140, where convictions for the crime of murder were reduced to seven years imprisonment for voluntary manslaughter. It is true that the defendant in each of the cases cited used a weapon, but the evidence further disclosed that the killing resulted from a sudden fight provoked by the deceased who was the aggressor and was armed with a pistol.
Since death is not the natural or probable result of a blow with the fist, it seems that no intent to kill will, under ordinary circumstances, be presumed though death results from an assault thus committed. But it has been held in many cases that an assault without a weapon may be attended with such circumstances of violence and brutality that either malice or an intent to kill will be implied. Anno. 15 A. L. R. 675, 24 A. L. R. 666. In State v. John, 172 Mo. 220, 72 S.W. 525, 95 Am. St. Rep. 513, the defendant struck deceased once on the jaw with his fist causing deceased to fall, striking his head on the pavement and resulting in his death. The court sustained the conviction for murder in the second degree and said: "The court properly instructed the jury that a man is presumed to intend the natural and probable consequences of his acts. . . . . A strong, brawny man will not be allowed to approach an unoffending citizen in a public highway and deal him a deadly blow with his fist in a vital part, and when death, the natural consequence of his act, ensues, be heard to say that he merely intended to punish him, and not to kill him."
In Ballentine v. State, 198 Ark. 1037, 132 S.W.2d 384, also cited by appellant, the defendant knocked deceased down with his fists and then kicked and stamped him to death. A conviction for murder in the second degree was sustained and it was held that the evidence was sufficient to have supported a conviction for murder in the first degree. The court said:
Since a specific intent to kill is not an essential element of second degree murder under our decisions, the real question here is whether the killing was done with malice, express or implied. The trial court fully instructed the jury on all degrees of homicide and upon the issue of malice, which is a question of fact to be determined by the jury from all the circumstances in the case. Wharton on Homicide (Third Ed.) § 104. The jury was warranted in finding that appellant made repeated violent attacks upon a much older man who offered no resistance whatsoever, but attempted to avoid each...
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Cooper v. Campbell, 78-1534
...§§ 41-2205, 41-2206 (1964 Repl.). Malice was an essential element of both first and second degree murder. McGaha v. State, 216 Ark. 165, 224 S.W.2d 534 (1949); Ballentine v. State, 198 Ark. 1037, 132 S.W.2d 384 (1939). Manslaughter was defined generally as the unlawful killing of a human be......
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...3 (1965), shows the danger of giving new or repeated instructions after jury deliberations have begun. However, in McGaha v. State, 216 Ark. 165, 224 S.W.2d 534 (1949), the court said: The trial court did not err in reinstructing on the degrees of homicide after the jury reported agreement ......