Rayburn v. State
Citation | 63 S.W. 356,69 Ark. 177 |
Parties | RAYBURN v. STATE |
Decision Date | 25 March 1901 |
Court | Supreme Court of Arkansas |
Appeal from Crawford Circuit Court JEPTHA H. EVANS, Judge.
Judgment affirmed.
Mechem & Bryant, for appellant.
The Sixth instruction was erroneous. 11 Ark. 456, 548, 460; Sand. & H. Dig., § 644. The indictment did not properly submit to the jury the question of appellant's guilt of murder in the first degree, committed in the perpetration of or attempt to perpetrate robbery. Sand. & H. Dig., § 2674; 26 Ark. 330; 2 Ark. 497; 1 Bish. Cr. Proc. § 589. The burden was not on appellant to show his absence at the time of the commission of the crime. 55 Ark. 248; 105 Mass. 451; 100 Mass. 487; 39 Oh. St. 315; 93 Mich. 641; 18 Neb. 154; 64 N. Car. 56; 16 Ore. 534; 47 Ala. 356; 94 Ala. 76; 72 Cal 623; 117 Ill. 35; 40 Kans. 482; 111 Mo. 248; 87 Mo. 668; 86 Pa.St. 54; 7 S.C. 63; 30 Tex.App. 341. The ninth instruction was erroneous, in that it suggested to the jury the court's view of the value of the testimony. Const. 1874 art. 7, § 33; 49 Ark. 439; id. 147; 37 Ark. 590; 43 Ark 294; 45 Ark. 172; 55 Ark. 247; 2 Th. Tr. § 2301; 34 Ark. 703; 110 U.S. 582; 65 La. 500, 511; 25 Ala. 235.
Geo. W. Murphy, Attorney General, for appellee.
Mechem & Bryant, for appellant, on motion for re-consideration.
The indictment was insufficient to charge murder in the first degree, committed in the perpetration of crime. Cf. 27 Ia. 402, 409; 4 Gr. 500; 21 Kans. 47; 2 Bish. New Cr. Proc. 569, 570, 573, 574, 576, 577, 579, 580, 581, 585, 588, 589; 60 Ark. 571.
OPINION
Appellant was convicted of murder in the first degree upon an indictment charging that he "did unlawfully, wilfully, 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:
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 at 393-400, 34 N.W. 177; Com. v. Flanagan, 7 Watts & Serg. 415; State v. Hopkirk, 84 Mo. 278; 10 Enc. Pl. & Pr. 150; People v. Giblin, 115 N.Y. 196, 4 L. R. A. 757, 21 N.E. 1062.
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. 451, 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 offence, 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 on 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...
To continue reading
Request your trial-
Horn v. State
... ... W., 361; State v. Myers (Wash.), 40 P. 626; ... State v. Hosack (Ia.), 89 N. W., 1080; Lackey v ... State (Ark.), 55 S. W., 213; Weaver v. People, ... 132 Ill. 536; Carlton v. People, 150 id., 189; ... Keating v. People, 160 id., 484; Harvey v ... People, 125 Ala. 47; Rayburn v. State, 69 Ark ... 177; State v. Cohen, 108 Ia. 209; State v ... Hayden, 45 Ia. 11; Smith v. State, 85 N. W., ... 49; State v. Glass, 5 Ore., 82; State v ... Crane, 15 S. E., 231; Bressler v. People, 117 ... Ill. 422; Faulkner v. Ter., 30 P. 905; Mullins v ... People, 110 ... ...
-
State v. Farnam
... ... It exposed the ... defendant to danger of conviction from a course of which he ... had no notice, and invited the jury into the realm of fancy ... and speculation upon visionary theories with no testimony to ... support them ... Rayburn v. State, 69 Ark. 177, 63 S.W. 356, was a ... case where the defendant was charged with murder in that: ... He "did unlawfully, willfully, feloniously, and of his ... malice aforethought, and after premeditation and ... deliberation, kill and murder one A. T. Carpenter." ... ...
-
Williams v. State
... ... It is ... conceded by the Attorney General that the part stricken from ... the instruction is the law, and might properly have been ... given for the jury. Blankenship v. State, ... 55 Ark. 244, 18 S.W. 54; Ware v. State, 59 ... Ark. 379, 27 S.W. 485; Rayburn v. State, 69 ... Ark. 177, 63 S.W. 356; and Allen v. State, ... 70 Ark. 337, 68 S.W. 28 ... The ... Attorney General however contends that instruction No. 6, as ... modified and given, taken in connection with instruction No ... 2, given by the court, cures any error in ... ...
- Cranford v. State