Rayburn v. State
Decision Date | 23 March 1901 |
Citation | 63 S.W. 356 |
Parties | RAYBURN v. STATE. |
Court | Arkansas Supreme Court |
Appeal from circuit court, Crawford county; Jeptha H. Evans, Judge.
Love Rayburn was convicted of murder in the first degree, and he appeals. Affirmed. The defendant files motion for a rehearing, which is granted, and judgment reversed.
Mechem & Bryant, for appellant. Geo. W. Murphy, Atty. Gen., for the State.
Appellant was convicted of murder in the first degree upon an indictment charging that he "did unlawfully, willfully, feloniously, and of his malice aforethought, and after premeditation and deliberation, kill and murder one A. T. Carpenter," etc. The record shows that the state introduced several witnesses, "whose testimony tended to show by facts and circumstances that the defendant was guilty, as charged in the indictment, of murder in the first degree." On behalf of defendant several witnesses testified to facts tending to establish an alibi. We are asked to reverse because the court gave the following instructions: "(6) If you find from the evidence beyond a reasonable doubt that defendant, in the perpetration of, or in the attempt to perpetrate, the robbery of A. T. Carpenter, shot and killed Carpenter, then defendant is guilty of murder in the first degree, and you will so find."
1. The indictment was good for murder in the first degree. It was not necessary for it to set forth the facts and circumstances constituting the crime. That was matter of proof. Any proof which showed the defendant to be guilty of murder in the first degree as defined by our statute was competent. It was not necessary to charge specifically in the indictment that the murder was committed in the attempt to perpetrate robbery in order to admit proof of that fact. State v. Johnson, 72 Iowa, 393, 400, 34 N. W. 177; Com. v. Flanagan, 7 Watts & S. 415; State v. Hopkirk, 84 Mo. 278; 10 Enc. Pl. & Prac. 150; People v. Giblin, 115 N. Y. 196, 21 N. E. 1062, 4 L. R. A. 757. The record shows affirmatively that the facts and circumstances tended "to prove the murder as charged in the indictment." In the absence of any proof tending to show that the homicide, although committed in the attempt to perpetrate robbery, was unintentional, it must be held that it was as stated to be shown in the record. The court's charge, so far as the record shows, was but based upon the proof.
2. Instruction 9 is a literal copy of an instruction approved by this court in Ware v. State, 59 Ark. 379, 27 S. W. 485. That case was well considered, and the conclusion we then reached was sound. Learned counsel for appellant, we think, misapprehend the purport of the instruction. It does not shift the burden upon the defendant to prove his innocence. The burden is still upon the state to prove beyond a reasonable doubt, upon the evidence in the whole case (which would include evidence of alibi), that the defendant was present when the crime was committed. In Com. v. Choate, 105 Mass. 456, the court passed upon an instruction which told the jury: "That, where the defendant sought to establish the fact that he was at a particular place at any given time, and wished them to take it as an affirmative fact proved, the burden of proof was upon him, and, if he failed in maintaining that burden, the jury could not consider it as a fact proved in the case; that the burden, however, was upon the government to show that the defendant was present at the time of the commission of the offense, and, as bearing upon that question, the jury were to consider all the evidence offered by the defendant tending to prove an alibi; and if, upon all the evidence, the jury entertained a reasonable doubt as to the presence of the defendant at the fire, they were to acquit." The court said of this: "The substance of the whole ruling was that, if the evidence of the defendant which tended to prove an alibi was such that, taken together with the other evidence, the jury were left in reasonable doubt as to whether the defendant was present at the alleged fire, they should acquit him." The instruction in the form given in the Massachusetts case is, perhaps, a preferable statement of the law. But the instruction under consideration, fairly construed, is of exactly the same purport. The burden to show the defendant's presence and participation in the crime is still upon the state, when the evidence is considered as a whole, including that introduced by the defendant on the question of alibi. But as to the particular defense of alibi set up under the general plea of not guilty, the defendant, if he relies upon it as an affirmative fact, must show that particular fact. The state could not be expected to prove that he was not present. That would be to devolve upon the state the duty of proving a negative; i. e. that defendant was not present, and not guilty. The state must prove its charge — the guilt of the accused — beyond a reasonable doubt, notwithstanding the testimony tending to prove an alibi, or the defendant must be acquitted; but it is the province of the defendant to introduce evidence tending to show an alibi when relied upon as an affirmative matter of defense, and as to this the burden rests upon him.
3. The court also gave the following: During the argument to the jury of J. C. Byers, of counsel for defendant, he said, in substance: After this statement of counsel, and while he was addressing the jury, the court prepared, and, after counsel for defendant concluded his address, gave, in writing, instruction marked "a," as follows: The court offered to allow defendant's counsel further time to address the jury on the instruction. The court having used a metaphor to characterize the evidence, counsel for appellant seized upon this in argument, and by literal adherence to it was perverting the well-established rule that each circumstance in cases of circumstantial evidence does not have to be proved beyond a reasonable doubt, it being sufficient, if, upon the whole case, the evidence convinces the jury beyond a reasonable doubt. Thus the argument of counsel was inconsistent with the principle which the court...
To continue reading
Request your trial-
State v. Thorne
... ... convicted of murder in the first degree upon proof that the ... shooting and the unlawful killing were done, whether ... intentionally or unintentionally, in the perpetration of, or ... attempt to perpetrate, a robbery. Upon this question the ... authorities divide. In the case of Rayburn v. State , ... 69 Ark. 177, 63 S.W. 356, and perhaps others, the negative of ... the proposition is held, but we think the weight of authority ... is to the contrary. (Wharton on Homicide, section 119; 1 ... McClain's Crim. Law, section 653; State v ... Meyers , 99 Mo. 107, 12 S.W. 516; ... ...
-
Sloan v. State
... ... himself, or counsel, or both, to demand the nature and cause ... of the accusation against him.' ... These ... contentions seem to be supported by the courts of the state ... of Arkansas in Cannon v. State, 60 Ark. 564, 31 S.W ... 150, 32 S.W. 128, and in Rayburn v. State, 69 Ark ... 177, 63 S.W. 356. But the courts of Arkansas seem to stand ... alone in so holding. All of the other states whose courts ... have passed upon the question hold the reverse of the ... Arkansas doctrine ... In ... State v. Meyers, 99 Mo. 107, 12 S.W. 516, it is ... ...
- Rayburn v. State
-
House v. State
... ... deliberate and premeditated killing, and, under well-settled ... rule of decisions in this State, it was entirely proper to ... submit to the jury the question of the deliberate and ... premeditated murder. Powell v. State, 74 ... Ark. 355, 85 S.W. 781; Rayburn v. State, 69 ... Ark. 177, 63 S.W. 356; McCabe v. State, 149 ... Ark. 585, 233 S.W. 771; Spear v. State, 184 ... Ark. 1047, 44 S.W.2d 663. It must follow therefore that the ... court did not err in giving instruction No. 3 complained of ... by the defendant, which ... [92 S.W.2d 871] ... ...