McGough v. State

• Decision Date: 31 May 1915
• Docket Number: 16
• Citation: 177 S.W. 398,119 Ark. 57
• Parties: MCGOUGH v. STATE
• Court: Arkansas Supreme Court

177 S.W. 398

119 Ark. 57

MCGOUGH v. STATE

No. 16

Supreme Court of Arkansas

May 31, 1915

Appeal from Drew Circuit Court; Turner Butler, Judge; affirmed.

Judgment affirmed.

Knox & Knox and Williamson & Williamson, for appellant.

1. There is absolutely no evidence tending to prove involuntary manslaughter, nor any evidence to sustain such a verdict. 71 Ark. 459; 99 Id. 188; 32 Id. 552; Kirby's Digest, § 1779; 21 Cyc. 760-2.

2. It was error for the court to instruct the jury on involuntary manslaughter. The error was not invited by appellant. 71 Ark 86; 80 Id. 225; 82 Id. 25; 95 Id 104; 74 Id. 262; 75 Id. 142; 73 Id. 262; 173 S.W. 852; 102 Ark. 266; 85 Id 514; 103 Id. 505; 88 Id. 448; 77 Id. 464; 36 Id. 293; 156 U.S. 51. The error was prejudicial. 15 S.Ct. 294; 130 S.W. 1107; 131 Id. 551; 46 Wis. 516; 43 Tex.Crim. 407.

3. Especially was it prejudicial error without defining the crime of involuntary manslaughter. 71 Ark. 367, 372; Const., art. 7, § 23.

4. The court erred in giving the seventh instruction requested by the State, as to threats, and in the manner in which it permitted Walter Cruce's memory to be refreshed.

Wm. L. Moose, Attorney General, and Jno. P. Streepey, Assistant, for appellee.

1. The evidence was sufficient not only to sustain a verdict for involuntary manslaughter, but for a higher degree of homicide, and hence the instruction as to the lower degree was not prejudicial. 100 Ark. 330, 335. By its verdict the jury found defendant guilty of some degree of homicide, and he can not complain because the verdict was too favorable to him. 68 Ark. 310-314; 71 Id. 86; 68 Id. 225; 82 Id 25-27; 95 Id 100; 96 Id. 58; 40 Ark. L. R. 303-307.

2. Instruction No. 7, requested by the State as to threats, has been approved by this court in many cases.

3. There is nothing in the record to show that witness Cruce was taken from the court room and "coached" as to how he should testify, but it is shown that the record from which he refreshed his memory was properly identified.

OPINION

MCCULLOCH, C. J.

Appellant was placed on trial in the circuit court of Drew County under the charge of voluntary manslaughter, and the jury returned a verdict finding him guilty of involuntary manslaughter. He is charged with killing his brother-in-law, one Guy Ferguson, and he admits the killing but pleads self-defense. Appellant is a farmer in Drew County and Ferguson was a tenant on appellant's farm. They had not gotten along well together at all times, there being some evidence of altercations occurring between them, and there is also proof of violent threats against appellant on the part of deceased.

Ferguson lived only a few hundred yards from appellant's house, where the killing occurred early one morning shortly after daylight. Ferguson went up to the house to get a wagon and team with which to do some hauling. No one was present except those two parties and appellant's wife, who, of course, did not testify in the case. Ferguson's wife testified about hearing the shot and finding the dead body of her husband when she went up to the house. She states that the body was lying on the ground outside the gate, his head being about ten feet from the gate. Other witnesses testified that when they reached the scene they found the body lying about fifteen or twenty feet from the gate. Other testimony tends to show that the gate was about ten steps from the gallery of the house. Defendant admitted that he shot Ferguson with a Winchester rifle, and undertook to detail the altercation which led up to the killing. He said that he had another use for the wagon and team that morning and so informed Ferguson when the latter came up there to get them, and that Ferguson used vile epithets toward him and started toward the gate, and had one hand on the gate and was thrusting the other hand into his bosom when he (appellant) fired the shot. Appellant stated that he was standing on the gallery, and when Ferguson started toward the gate he stepped back in the door for the rifle and then walked out on the porch and fired the shot just as deceased put his hand on the gate. The following is the identical statement of the facts made by appellant:

"I went and told him that I would have to use them (the team of mules) and to let them alone. He said that I ought to let him use it and said, 'You son-of-a-bitch, I will go get my gun and kill you.' And I told him to go get it, and he said, 'No.' That he had gun enough here to kill me, and said, 'You son-of-a-bitch, I will kill you.' I went and got my gun and shot and he run to the tree and stood there a little and lay down."

Further on he explained about stepping back into the room or into the door to get the gun when deceased first made the statement that he would get his gun or had a gun. He stated also that when deceased thrust his hand into his bosom as he started to open the gate, he thought that deceased was going to shoot, and that that was the reason why he fired the shot. There was only one shot fired, and that was from the Winchester rifle, and the ball penetrated deceased's neck. He bled very freely, the blood being found scattered about on the dry leaves. A physician was immediately summoned and his testimony was that death was produced almost immediately from the result of the shot. His testimony also tends to show that there was no blood farther away than about three feet from the body. Deceased had no weapon except a common pocket knife which was in his pocket and unopened at the time the body was found. Appellant left the house by another gate as soon as he fired the shot and went over to one of his neighbors. He testified that he didn't learn until some time afterward that the shot had killed deceased. According to the testimony of appellant himself, deceased was standing outside of the gate a distance of about ten steps, and according to the testimony adduced by the State the jury might have found on account of the situation of the body of deceased, and the distance of the blood stains, that deceased was several steps away from the gate on the outside at the time he received the fatal shot.

The only issue of fact in the case was whether or not appellant was justified in believing that his life was in danger so that the homicide may be excused. It is not contended that the evidence was not sufficient to have sustained a verdict of guilt of the crime of voluntary manslaughter, but it is insisted that there was no evidence to sustain a verdict of guilt of involuntary manslaughter and that the court erred in submitting that degree of homicide to the jury. The court gave correct instructions defining the crime of voluntary manslaughter, and also gave proper instructions on the doctrine of self-defense. No definition of the crime of involuntary manslaughter was given, but after the attorneys had concluded the argument of the case, the court, in giving final instructions to the jury concerning the form of the verdict, stated the form of verdict and extent of the punishment of both degrees of manslaughter, voluntary and involuntary. The record shows that appellant's counsel objected to the instruction of the court as to the form of the verdict as to involuntary manslaughter.

There is no element of involuntary manslaughter in this case, and the verdict was not responsive to the evidence nor to the instructions of the court which undertook to state the law applicable to the case. Involuntary manslaughter is defined by the following statute: "If the killing be in the...