Selden v. State

• Decision Date: 30 January 1892
• Citation: Selden v. State, 18 S.W. 459, 55 Ark. 393 (Ark. 1892)
• Parties: SELDEN v. STATE
• Court: Arkansas Supreme Court

18 S.W. 459

55 Ark. 393

SELDEN v. STATE

Supreme Court of Arkansas

January 30, 1892

APPEAL from Miller Circuit Court, RUFUS D. HEARN, Judge.

Judgment reversed and cause remanded.

No counsel for appellant.

W. E Atkinson, Attorney General, and Chas. T. Coleman for appellee.

OPINION

HUGHES, J.

The appellant was convicted of murder in the second degree and sentenced to the penitentiary for twenty-one years.He appealed to this court.

The facts are substantially as follows: Appellant and his wife Ann had been separated and were living apart.The deceased Tama was the daughter of Ann and stepdaughter of the appellant.On the day of the killing the appellant went to the house of Gilbert Boykin, riding and carrying his gun.When he reached Boykin's house, he found Tama and her mother, the appellant's wife, there.He endeavored to persuade his wife to return and live with him, but she refused to do so.Tama about this time made some remark whereupon appellant went to her and said: "I understand you said you wanted to kill me."He had his gun in his right hand, and she said to him, "Shoot."A bystander interfered and stopped the difficulty.While this was transpiring, Gilbert Boykin, who was a justice of the peace, was writing.The appellant inquired what he was doing, when Boykin informed him that his wife wanted to put him under bond to keep the peace.Appellant said he was not doing anything, that he only wanted his wife; and went to where she was and began talking to her, trying to get her to go home with him.Tama again spoke to appellant and dared him to come out into the yard.She asked her mother twice to come with her, when the appellant told her to let his wife alone.Appellant and Tama went out into the yard, and she cursed him.Appellant still had his gun.A witness caught Tama; the appellant went into the house where his wife was, and Tama followed him.His wife started to go, when appellant said she should not go.Tama said "Come on," and started with her little brother.Ann, the appellant's wife, told Tama and her brother to go on; she would stay there that night and come tomorrow.The boy came back towards his mother, when the appellant commanded him to go on, and asked him who he was going to mind, his mother or Tama, and pushed and kicked him.Tama then rushed upon the appellant and cut at him four or five times with a knife, cursing all the while.She cut him on the shoulder and head.While she was cutting at him, Ann ran up and caught the appellant around the body with her arms from behind, and thus held his arms.They were separated, and Tama went to the rear of the house.Appellant went into the house to get his gun, but Gilbert Boykin secured it and hid it.Appellant then got some sticks, which were taken from him.He went into the house with his knife in his hand; a person tried to stop him, whom he threatened to cut if he did not get out of his way; he jumped out at the window, rushed up to Tama, who was in the back yard in the act of picking up a hoe.He stabbed her once with the knife he had, ran and attempted to jump the fence, but was caught on the palings.

In obedience to the command of the constable he went toward him at the front gate, whither Tama also went.As appellant went to the gate, he picked up a piece of plank with which to strike Tama, but was prevented from doing so by the constable.Tama reached the front gate, fell and, expired in a short time.It was but a few minutes, says one of the witnesses, and another stated that it was twenty minutes, from the time the appellant and Tama were separated, when she was cutting him with a knife, till she was stabbed by the appellant.As the appellant went into the house when he jumped out at the window, he exclaimed "There's my life's blood," alluding to the blood flowing from the wounds inflicted by Tama.Tama was a very tall and stout young woman.The appellant was an old man.

The court gave for the State, amongst others, the following instruction, which was excepted to by the appellant; and the giving of same was made a ground in his motion for a new trial:

"8.You are told that when a person voluntarily and unlawfully enters into a difficulty, or unlawfully assaults another that then they are denied the privilege of taking advantage of the law of self-defense.So, in this case, if you find from the evidence beyond a reasonable doubt that the defendant and deceased, Tama Thurman, engaged in a difficulty, and were separated or separated themselves, and that the deceased had in good faith abandoned the contest, and defendant unlawfully renewed the contest and difficulty, that he cannot avail himself of the law of self-defense; and should you believe that, at the time or just previous to striking the fatal blow, the deceased was in the act of striking or attempting to strike the defendant with a hoe or...