Tanks v. State
| Decision Date | 27 June 1903 |
| Citation | 75 S.W. 851,71 Ark. 459 |
| Parties | TANKS v. STATE |
| Court | Arkansas Supreme Court |
Appeal from Ashley Circuit Court ZACHARIAH T. WOOD, Justice.
Reversed.
Judgment reversed and cause remanded for new trial.
Robert E. Craig, for appellant.
The indictment is insufficient. 2 Bish., Cr. Pro., § 527-534; 55 Ark. 558; 70 Ark. 523; 65 S.W. 249. The argument of counsel was prejudicial. 62 Ark. 133; 58 Ark. 473. It was error to take the pistol to the jury room. 51 Ark. 553. A new trial should have been granted on the ground of surprise. 18 Ark. 570; 20 Ark. 53; 26 Ark. 496.
George W. Murphy, Attorney General, for appellee.
The testimony of the jurors to support the motion for new trial was improper. Sand. & H. Dig., § 2269.
This is an indictment for murder in the first degree, tried at the January term, 1903, of the Ashley circuit court, and resulting in a conviction of the defendant for murder in the second degree. Motion for new trial made and overruled, and judgment upon the verdict, and defendant appealed to this court.
The evidence in the case does not justify the verdict of the jury for murder in the second degree, the offense being murder in the first degree or involuntary manslaughter, if anything. There is absolutely no evidence upon which the charge of murder in the first degree can be supported, since it is not shown that the defendant did the killing, nor is there any evidence whatever that he had deliberated upon or premeditated the killing or designed it in any way, nor was there shown any motive in the defendant to commit such a crime. The facts are that a party of young people had been in attendance upon the session of a debating society, and were returning to their homes in a frolicsome and merry mood laughing and talking good-humoredly as they went. One of the party had a pistol, but, being without a coat in which to carry the pistol, or, more probably, with which to conceal it, gave it to the defendant, who wore a coat, to carry it for him. The defendant was walking abreast with the deceased girl, Emiline Mooney, and another, and the deceased in a playful mood was endeavoring to take the pistol from his pocket, the muzzle being up. The defendant was endeavoring to prevent her getting the pistol. In the struggle between them, the pistol was discharged, apparently by being caught in the pocket, and in the effort of the deceased to draw it out. The ball entered and went through the head of deceased, killing her instantly, the pistol dropping to the ground.
Such was the evidence on the part of the defendant, and the state could adduce none to the contrary, and relied mainly upon inferences and conclusions to be drawn from the act of carrying a pistol in violation of law and other circumstances even of less conclusiveness, and upon the careless manner in which the pistol was carried and handled. If any evidence could have been adduced showing a previous design and present intent to commit the homicide on the part of the defendant, the jury, of course, might have found the defendant guilty of murder, but none such was adduced in the trial.
In this state of case, the trial court failed to instruct the jury on the subject of involuntary manslaughter and to define the same, and this was made a ground of objection by the defendant, especially as the court in instructions had defined the higher grades of homicide. This of itself might not have been greatly prejudicial to the defendant, but the peculiar wording of its definition of manslaughter was calculated to mislead and confuse the jury in their efforts to make an application of it to the facts of this case. That instruction, which is a literal copy of section 1660 of Sand. & H. Dig., reads as follows, to-wit:
"The killing of a human being without design to effect death, in the heat of passion, but in a cruel and unusual manner unless it be [committed] under circumstances that would constitute excusable or justifiable homicide, shall be adjudged manslaughter, and...
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