Prewitt v. State

• Decision Date: 24 October 1921
• Docket Number: 185,208
• Citation: 234 S.W. 35,150 Ark. 279
• Parties: PREWITT v. STATE
• Court: Arkansas Supreme Court

234 S.W. 35

150 Ark. 279

PREWITT v. STATE

No. 185, 208

Supreme Court of Arkansas

October 24, 1921

Appeal from Lincoln Circuit Court; W. B. Sorrels, Judge; reversed.

Judgment reversed.

Arthur Johnson and Williamson & Williamson, for appellant.

1. The verdict is not supported by the evidence. This court is committed against the scintilla rule, and the rule calling for a refusal of a new trial where there was any evidence whatever, however weak, to support the verdict. 34 Ark. 632; 85 Id. 360-362; 97 Id. 156, 159; 56 Id. 8, 17; 49 Id. 364.

2. Any declaration of law which will permit a conviction of murder in the second degree without proof of malice is reversible error. 141 Ark. 57; 82 Id. 545. No killing can be murder unless done with malice. 35 Ark. 585; 141 Id 63. It must be proved by substantial evidence and beyond a reasonable doubt. The State cannot rely upon inferences or conclusions to establish malice. 100 Ark. 354; 71 Id. 460; 49 Id. 364; 96 Id. 52; 119 Id. 85; 69 Id. 189; 76 Id 515; 141 Id. 57; Id. 11, 12; 38 Id. 221. Implied malice can only arise where no considerable provocation appears, or where all the circumstances of the killing manifest an abandoned and wicked disposition. C. &. M. Dig. § 2341; 34 Ark. 640; 17 Cyc 754; Id. 817; 100 Ark. 354. Express malice, see C. &. M. Dig. § 2340. Must be proved. 66 Ark. 646; 9 Am. & Eng. Enc. of L. 587; 1 Bishop, Crim. Law § 868; 1 McClain, Crim. Law § 340; 73 Ark. 315, 319; 110 Id. 402; 75 Id. 142; 74 Id. 262.

3. The absence of any motive for the killing save that of self defense alone, is a strong circumstance in favor of innocence which must be considered if justice is to be done. 93 Ark. 323; 109 Id. 391; 138 Id. 517; 71 Id. 117.

4. Proof of what the conversation was between appellant's wife and the mother of deceased, which led to the difficulty between appellant and deceased, was relevant and material to appellant's defense, and it was reversible error to exclude Mrs. Harding's testimony. 1 Wharton on Evidence, §§ 20, 21; 49 Ark. 542; 58 Id. 233; 241; 71 Id. 112, 117; 43 Id. 99; 114 Id. 275; 109 Id. 391; 29 Id. 262; 14 Id. 555, 561; 43 Id. 99, 104.

It was likewise error to exclude the testimony of the witness Spyker concerning the appearance of the appellant immediately following the shooting, and also the testimony of Dr. Hutchinson on that point.

5. The court erred in excluding testimony offered to show the actual character and disposition of the deceased. Wigmore on Evidence, §§ 52, 53, 1908-1986; 3 Id. pp. 2627, 2629, 2630, 2644, 2645-46; 29 Ark. 262-263; 34 Id. 372; 47 Id. 187; 69 Id. 149; 72 Id. 439; 79 Id. 601; 82 Id. 597; 85 Id. 381; 108 Id. 129; 100 Id. 564; 115 Id. 501; 98 Id. 430; 95 Id. 241; Carr v. State, 147 Ark. 524; 132 Id. 504.

6. Instructions 1 and 3, to the effect that the burden was on the State to prove every material allegation of the indictment beyond a reasonable doubt, etc., undoubtedly stated the law, and should have been given. 109 Ark. 516. It constitutes reversible error to omit a definition of reasonable doubt, in charging the jury. 69 Ark. 449. Instructions 10 and 17 on the issue of self defense is in accordance with the law as declared by this court in Palmore v. State, 29 Ark. 267. Also instruction 12, to the effect that if the fatal shot was fired under the belief, although a mistaken belief, that it was necessary in order to protect himself from serious bodily harm, defendant should be acquitted, was the law as declared by this court. 131 Ark. 538. Instruction 16 as to the purpose for which proof was admitted as to the reputation of deceased, should have been given. 85 Ark. 380.

7. The court erred in its charge to the jury in giving § 2374, C. & M. Digest, in part only. 85 Ark. 48; 13 Id 360; 54 Id. 588; 55 Id. 397.

Instructions on the subject of justifiable homicide which are not qualified so as to show the right of the accused to act upon the circumstances as they appeared to him, as a reasonable person, are erroneous. 67 Ark. 594, 599. Instruction No. 9, given by the court, amounted to a peremptory instruction to convict, the effect of it being to tell the jury to disregard all the evidence save the actual fact of the shooting. 85 Ark. 52; 67 Id. 599. Correct instructions given at appellant's request, did not cure the error. 55 Ark. 393; 57 Id. 203; 59 Id. 52; 85 Id. 52; Id. 214, 217; 93 Id. 564, 573.

8. No definition of murder in the second degree, with instruction thereon, was given. 38 Ark. 221.

On appeal from the order, nunc pro tunc, correcting the record:

The proceeding to correct the record was material to the appellant, and he was entitled to be present at the time in person. The court ought to have continued the hearing on the motion on account of his illness, and to proceed in his absence was reversible error. 143 Ark. 543; 103 Id. 4; 21 Id. 226; 35 Id. 118; Id. 588; 50 Id. 499.

J. S. Utley, Attorney General, Elbert Godwin and W. T. Hammock, Assistants, for appellee.

1. The evidence supports the verdict. Malice, an essential element of murder in the second degree, may be either express or implied. C. & M. Digest, § 2340. Actual intent to take life is not a necessary element in the crime. 55 Ark. 556. There was no legal provocation for the killing. Abusive words will never justify taking human life. 70 Ark. 272; 77 Id. 464; 131 Id. 487. Motive for the killing was clearly shown.

2. Mrs. Harding's testimony was not admissible. The alleged conversation between Mrs. Hastings and appellant's wife was not in his presence, and it is not claimed that any threats by either deceased or appellant towards the other were communicated by that conversation.

3. The testimony as to appellant's appearance after the shooting was not competent.

4. There was no error in refusing to permit witnesses to testify as to their personal knowledge relative to the character of the deceased. Reputation was the proper inquiry, and whether it was known to the accused. 1 Greenleaf on Ev. § 14, p. 42; Underhill on Ev. §§ 324, 325; 1 Wharton, Crim. Ev., 246; 29 Ark. 248; 100 Id. 561; Trotter v. State, 148 Ark. 466.

5. We do not think the instructions 4 and 20, to the refusal of which the appellant objects, gave a clear definition of a reasonable doubt. The court is not required to instruct as to reasonable doubt on its own motion. 86 Ark. 456.

It is not obligatory upon the court to instruct upon the credibility of witnesses. 109 Ark. 383.

Instructions 10 and 17 were properly refused, as they omitted the necessary element that the accused must have thought the killing necessary in order to protect his own life or to save himself from great bodily harm. 93 Ark. 409. Moreover instruction 17 was not applicable to the testimony in the case. Appellant's objections to instructions were general. He should have made specific objections. 101 Ark. 95.

SMITH, J. MCCULLOCH, C. J., dissenting.

OPINION

SMITH, J.

Appellant was tried under an indictment charging him with the crime of murder in the first degree, alleged to have been committed by shooting one Morris Hastings. He was convicted of murder in the second degree, and given a sentence of ten years in the penitentiary, and has appealed.

The facts in regard to the killing are substantially as follows: The appellant, who will hereinafter be referred to as the defendant, and Hastings, who will be referred to as the deceased, had always been on friendly terms and had frequently hunted together. Defendant was thirty-eight years old, and at the time of the killing was under treatment by a physician for hernia, and was a much smaller man than deceased, who was twenty-three years old, six feet tall, and of athletic build. The killing occurred about nine o'clock Thursday morning, February 17, 1921, in the little town of Grady, in Lincoln County, where both parties had lived for a number of years.

According to defendant, he had bought a bird dog the day before, in payment of which he had given a check on his local bank, and, not being certain that he had enough money in the bank to pay the check, he had gotten $ 25 from his bookkeeper that morning and was hurrying to reach the bank before the check was presented for payment. On the way to the bank and while near the depot, he met deceased and told him that he had just bought a stud pup, whereupon deceased said, "I have been looking for you, you son-of-a-bitch; you had better be thinking about your neck instead of dogs." Defendant asked, "What is the matter, Morris?" when, according to defendant, deceased "said something about what my wife told his mother." According to defendant, he assured deceased there was some mistake, that he had said nothing disrespectful about his mother, and that if she had taken offense at anything he had said he would be glad to explain or apologize. The deceased did not accept the explanation and grew more angry as the discussion progressed, and, after frequently cursing defendant in angry tones and with violent language, finally said, "I am going to stamp your God damn guts through your eyes," and as he said this deceased lunged at defendant and put his hand in his pocket; whereupon defendant jumped back a step or two, drew his pistol and fired twice in rapid succession. Deceased fell between the rails of the railway track with a bullet through his heart, from which he died in a very short time.

Witnesses saw the parties standing together and knew that a violent quarrel was in progress, but the testimony shows that defendant made only one gesture--that with his hands--during the conversation; while deceased was seen to shake his finger in defendant's face. A witness named Bittinger, who saw the beginning of the occurrence, heard deceased apply indecent epithets and threats to defendant, and...