Rogers v. State

• Decision Date: 15 December 1894
• Citation: 29 S.W. 894
• Parties: ROGERS v. STATE.
• Court: Arkansas Supreme Court

29 S.W. 894

ROGERS v. STATE.

Supreme Court of Arkansas.

December 15, 1894.

Appeal from circuit court, Yell county; Jeremiah G. Wallace, Judge.

A. L. Rogers was convicted of manslaughter, and appeals. Reversed.

The appellant, Rogers, was indicted by the grand jury of Johnson county for the crime of murder. The indictment alleged that he killed and murdered one M. L. Kernoodle in said county by shooting him with a pistol. A change of venue was taken to Yell county, and the case was there tried. The evidence showed that Rogers and Kernoodle became engaged in a combat in the town of Clarksville, near the barber shop in which Kernoodle worked; that they had only struggled a moment before Rogers drew a pistol from his pocket, and shot Kernoodle. Kernoodle turned, and ran into his shop, screaming, "Murder!" As he entered, or was about to enter, the door of the shop, which was only a few steps away, Rogers fired again. Kernoodle staggered to the back part of the shop, sank down on the floor, and expired almost instantly. The ball from the first shot entered the front part of the body, near the left nipple; and that from the second entered the back, near the spine. Both balls passed entirely through the body, and both, in the opinion of the medical experts, were fatal wounds, though they did not feel quite so certain that the last wound would have destroyed life as they did that this result would have followed from the first wound alone. There was a conflict in the evidence as to whether Rogers or Kernoodle was the aggressor in the combat. From some of the evidence, one might conclude that the killing was premeditated on the part of Rogers; that he armed himself, and, going to the shop where Kernoodle worked, beckoned him to come out, and then, having willingly entered into a combat with him, deliberately killed him. There is other evidence which contradicted this, and tends to show that Kernoodle was the aggressor, and that, being a large and powerful man, he walked up to Rogers, and, after some words, without provocation struck Rogers a violent blow with his fist, pushed him against the wall, and was about to throw him down, when Rogers fired the first shot. There was some proof tending to show that at the time Kernoodle struck Rogers he was armed with a razor, although this was contradicted by other proof. The other facts will sufficiently appear from the opinion. The jury found the defendant guilty of the crime of voluntary manslaughter, and assessed his punishment at five years in the penitentiary.

J. E. Cravens, Martin & Murphy, and A. S. McKennon, for appellant. James P. Clarke, Atty. Gen., and Chas. T. Coleman, for the State.

RIDDICK, J. (after stating the facts).

We need not consider the objections urged against the definitions of the words "willfully" and "deliberately" contained in instruction No. 1, given by the court. The object of those definitions, we suppose, was to inform the jury concerning the distinctions between the different degrees of homicide. As the defendant was only convicted of manslaughter, it is plain that, whether erroneous or not, they did him no harm. We find no error in either of the instructions numbered 2, 9, and 11, given by the court on its own motion, and to which defendant excepted. When taken in connection with the other instructions, we think they state the law as favorably to appellant as he had the right to demand.

The twelfth instruction given by the court, and to which the defendant objected, is as follows: (12) "If the jury believe that the defendant inflicted upon the body of the deceased two mortal wounds; that both wounds were necessarily fatal, and either of which, independent of the other, would have produced and resulted in the death of the deceased within a short time, of which two wounds the jury believe the deceased died; and the jury further find that the deceased had in good faith declined all further contest with defendant, and that, while deceased was fleeing from him, defendant inflicted the second fatal wound upon the body of the deceased by shooting him a second time; although the jury might believe the defendant fired the first shot in self-defense, — the killing would not be justifiable, but would amount to manslaughter only." It is said by Mr. Bishop that "whenever a blow is inflicted under circumstances to render the party inflicting it criminally responsible, if death follows, he will be deemed guilty of the homicide, though the person beaten would have died from other causes, or would not have died from this one had not others operated with it; provided the blow really contributed either mediately or immediately to the death in a degree sufficient for the law's notice." 2 Bish. Cr. Law (New) § 637. To same effect, see Kee v. State, 28 Ark. 160. If the defendant fired the first shot in necessary self-defense, and then afterwards, when Kernoodle had abandoned the contest, and was fleeing, he again fired upon him, inflicting another wound, when the circumstances were not such as to make a reasonable man in his situation believe that he was then in immediate danger of great bodily injury, he would be guilty either of some degree of homicide, or of an unlawful assault, depending upon the question whether or not the wound inflicted by the last shot either caused, contributed to, or accelerated his death. In other words, if the last shot was not fired in necessary self-defense, and the wound inflicted by it either caused his death, or contributed to or hastened it, the defendant would be guilty of some degree of homicide, even though the first shot was fired in self-defense, and though at the time the last shot was fired the deceased was already so severely wounded that his death would have followed in a very short time. On the other hand, if the first shot was fired in self-defense, and the last shot neither caused his death nor contributed to nor hastened it, then he could not properly be convicted of any degree of homicide, but might be convicted of an assault. Davis v. State, 45 Ark. 464. The court, in giving instruction No. 12, doubtless had these rules of law in his mind, and the instruction, abstractly considered, is nearly correct, if not entirely so; but we doubt if in this case it presented the question in such a way as to let the jury understand that, in the event the first shot was fired in self-defense, then it became material for them to determine whether the last shot contributed to or hastened his death. Instruction No. 4, asked by the defendant, substantially covered the law on this point, but it was rather long, and also stated that, if the second shot did not contribute to the death of deceased, the jury must acquit, whereas they might still have found defendant guilty of an assault.

Another question raised by counsel is concerning the meaning of the phrase "great bodily injury." One of the counsel for defendant, in the course of his argument before the jury, stated that the law books did not define such phrase; whereupon the court interrupted him, and said that the law books did define it, and that its meaning was "a felony committed on the person." To this remark of the court defendant excepted at the time, and now contends that it was not a correct statement of the law, and that, even if correct, it should have been reduced to writing. It was held in Reg. v. McNeill, 1 Craw. & D. 80, that to constitute a grievous bodily harm, under a statute of Geo. IV., it was not necessary to show that the wound be on a vital part, or that the injury be of a permanent nature, or that life be endangered thereby; but that proof that the prisoner committed an assault with a deadly weapon, whereby a severe wound was inflicted, was sufficient to sustain an indictment for an assault to inflict grievous bodily harm. In the case of Lawlor v. People, 74 Ill. 230, the court said that the phrase "serious bodily injury" meant substantially the same as "great bodily injury," and that the meaning of both was "a high degree of injury, as opposed to a slight injury." The phrase "great bodily injury" is difficult to define, for the reason that it well defines itself. It means a "great bodily injury," as distinguished from one that is slight or moderate, such as would ordinarily be inflicted by an assault and battery with the hand or fist without a weapon. To put one in danger of great bodily injury from an assault, something more than an attack with the hand or fist would usually be required, and it would rarely happen that one might lawfully take the life of another to avoid an assault with the fist only. But cases might be supposed when it would be justifiable to do so; for an assault and battery by a powerful man with his fist upon a weak one might be carried to such extreme severity as to produce great bodily injury, and not be accompanied by such circumstances as to make it a felony. One who intentionally commits a great bodily injury upon the person of another may or may not be guilty of a felony, depending upon the circumstances; but, as such an injury may under some circumstances be committed and still the offender not be guilty of a felony, it is therefore not accurate to define "great bodily injury" as "a felony committed on the person." What constitutes a great bodily injury, and whether the circumstances in any case are such as to justify one in believing that such an injury is about to be committed upon him and in defending himself against it, are matters which must be left to a great extent to the judgment of the jury.

It is also contended that the court, before making this remark concerning the meaning of the phrase, "great...