Reed v. State

• Decision Date: 04 March 1912
• Citation: 145 S.W. 206,102 Ark. 525
• Parties: REED v. STATE
• Court: Arkansas Supreme Court

145 S.W. 206

102 Ark. 525

REED v. STATE

Supreme Court of Arkansas

March 4, 1912

Appeal from St. Francis Circuit Court; Hance N. Hutton, Judge affirmed.

STATEMENT BY THE COURT.

Andrew Reed was indicted, tried and convicted before a jury, of the crime of murder in the first degree, charged to have been committed, by shooting his wife, Mollie Reed. The defendant killed his wife on Monday the 12th day of June, 1911. The defendant and his wife were separated, and had been living apart for some time. On Saturday preceding the killing, the defendant went to where his wife was staying and asked her to return to him. She refused to come, saying that he had treated her so badly she could not live with him any more. On the succeeding Monday she went to defendant's house and asked him if she might have a set of furniture, and he told her that she might have anything in the house she wanted. When she started to go, he told her to sit down, that he had something he wanted to talk over with her. A witness who heard this conversation said that he then left to go and get a bucket of water, and that the killing occurred while he was getting the water. The deceased was standing in the back part of the house with her hands on her hips at the time the defendant shot her. He shot her in the side with a shotgun she fell head over heels down the steps into the yard. She struggled around trying to get up, and said, "Lord, have mercy!" The defendant walked back through the house with the gun in his hand, and went out on the back gallery, and putting his foot on the step, shot her twice more. After he shot her the last time, one of the witnesses says he came back through the house, and his wife's mother asked if her child was dead, and the defendant said: "Yes, you ought to have been here and got your part." The deceased only lived about thirty minutes after she was shot. The homicide occurred in Madison, St. Francis County, Arkansas.

The defendant adduced testimony tending to show that he had a running sore in his head which had been caused by a lick which he had received several years before, and that it pained him considerably, especially in hot weather; that when he drank whisky it caused a loss of memory, and that he did not know or understand what he was doing. He also adduced testimony tending to show that he had been drinking heavily for several days prior to the killing, and that he was so drunk at the time he killed his wife that he did not know what he was doing.

In rebuttal, the State introduced witnesses who testified that they talked with the defendant a short time before and after the killing, that he appeared to be sober and understand what he was doing. Another witness went to see him after he was confined in jail and asked the defendant for some money that he owed him. The defendant told him that he was going to get out on bond, and the witness told him that was foolishness to talk that way, that he could not get out on bond. The defendant then said that he was going to play crazy and get out that way.

From the judgement of conviction the defendant has duly prosecuted an appeal.

Judgment affirmed.

S. H Mann, for appellant.

1. The testimony of Taylor Swift as to what defendant said about going to "play crazy" was incompetent and prejudicial.

2. The court erred in its charge as to the degrees of murder. 21 Cyc. 727, 730, 1044; 7 L. R. A. 1071 (N. S.); 17 Id. 705; 11 Ark. 460; 9 A. & E. Enc. L. 567; 29 Ark. 264.

3. A new trial should be granted for improper remarks made in the hearing of a juror. 73 Ark. 501; 75 Id. 67; 84 Id. 569; 40 Id. 454; 3 Wharton, Cr. Law, pr. 3172; 57 Ark. 1; 44 Id. 115; 34 Id. 341; 12 Cyc. 674 (4).

Hal L. Norwood, Attorney General, and Wm. H. Rector, Assistant, for appellee.

1. Swift's evidence was not prejudicial.

2. The court's charge, as a whole, properly states the law, and could not have misled the jury. 34 Ark. 275; 49 Id. 156; 54 Id. 283; 91 Id. 503.

3. The integrity of the verdict was not impeached. No improper influence was shown by, nor did any prejudice result from, the remark heard by the juror. 84 Ark. 569; 73 Id. 581; 75 Id. 1.

OPINION

HART, J., (after stating the facts).

The defense relied on by the defendant for an acquittal was his alleged insanity at the time of the killing, and this question was submitted to the jury under proper instructions given by the court. The jury by its verdict found against the defendant on that issue. If the defendant was capable of distinguishing between right and wrong when he killed his wife, there can be no doubt but that it was a wilful, deliberate and premeditated killing, and that he was guilty of murder in the first degree.

After the jury had deliberated for some time, they returned into court and asked for further instructions as to the distinction between murder in the first and second degrees. The court them gave them the following instructions: "I have stated to you that the distinction between murder in the first and second degree is a very dim line. In order to convict the defendant of murder in the second degree, it must be clear to the jury from all the facts and circumstances in the case that at the time the fatal shot was fired there was an intent on the part of the defendant to take the life of the deceased. This premeditation and deliberation is necessary in both grades of murder, but in murder in the first degree it is not necessary to exist for any length of time, but it is sufficient if it was the intention of the party to take life. In murder in the second degree the distinguishing line would be if the party at the time he fired the shot did not have the intention to take life--that would be murder in the second degree, and if the intent was there a moment before the killing or the shot was fired, he would be guilty of murder in the first degree."

It is contended by counsel for defendant that this instruction does not properly state the law, and that the defendant was prejudiced by the court giving it. They insist that the instruction told the jury that there was practically no difference between murder in the first degree and murder in the second degree. The instruction is loosely drawn, and the court should have not told the jury that the distinction between murder in the first and second degrees is a very dim line; but we do not think the court's action was prejudicial to the rights of the defendant. All the instructions in the case are to be considered together. Under our statute, one of the main distinctions between murder in the first degree and murder in the second degree, is that to make out the crime of murder in the first degree a specific intent to take life must be shown. Petty v State, 76 Ark. 515, 89 S.W. 465; Byrd v. State, 76 Ark. 286. So that it will be seen that the leading characteristics of murder in the second degree are the presence of malice, distinguishing if from manslaughter, and the absence of premeditation or deliberation. In other instructions, the court told the jury what was necessary to constitute murder in the first degree, and instructed them fully as to the distinction between murder in the first degree and murder in the second degree. The law does not undertake to...