Trotter v. State

• Decision Date: 09 May 1921
• Docket Number: 317
• Citation: Trotter v. State, 231 S.W. 177, 148 Ark. 466 (Ark. 1921)
• Parties: TROTTER v. STATE
• Court: Arkansas Supreme Court

231 S.W. 177

148 Ark. 466

TROTTER v. STATE

No. 317

Supreme Court of Arkansas

May 9, 1921

Appeal from Drew Circuit Court; Turner Butler, Judge; affirmed with modification.

Judgment reversed, and cause remanded.

Henry & Harris, for appellant.

1. The evidence is not sufficient to sustain the verdict. It will not support a verdict of any higher degree of homicide than involuntary manslaughter. 34 Ark. 639.

2. There was error in refusing to admit testimony as to reputation of deceased. 2 Wharton, Cr. Law, § 1099; 2 Duval 328; 1 Metc. 370; 31 Miss. 504; 50 Mo. 357; 25 Mich 405.

3. The court erred in its instructions to voluntary manslaughter. C. & M. Digest, § 2356; 99 Ark. 188; 117 Id. 302.

J S. Utley, Attorney General, Elbert Godwin and W. T. Hammock, Assistants, for appellee.

1. The evidence is sufficient to sustain the verdict. 75 Ark. 246; 110 Id. 402.

2. Testimony as to threats and dangerous character of deceased was admissible. 29 Ark. 248; 139 Id. 446.

3. There is no error in the instructions. C. & M. Digest, § 2345.

WOOD, J. MCCULLOCH, C. J. dissenting. Mr. Justice SMITH joins in this dissent.

OPINION

WOOD, J.

Appellant was indicted for murder in the first degree in the killing of Fannie Read. He was tried and convicted of voluntary manslaughter. From the judgment sentencing him to imprisonment in the State penitentiary for a period of five years, he appeals to this court.

The appellant, a negro eighteen years of age, and Fannie Read, a negress about thirty years old, on the 8th of August, 1920, were living in illicit cohabitation at Tennessee Spur in Drew County, Arkansas. On the night of that day, and near the house in which they were living, a gun was discharged and appellant and Fannie Read were observed running close together for a short distance. They stopped and were scuffling when a gun was fired again and Fannie fell. She was shot in the right groin with bird shot or buck shot and died from the effects of the wound.

It could serve no useful purpose to discuss in detail the testimony. There was evidence to warrant the jury in finding the appellant guilty of voluntary manslaughter. The testimony of appellant was in part as follows: "I had some puppies there, and there was something the matter with the chickens, and I got up (out of bed) to see what the trouble was. Fannie was out there with the gun and said, "You son-of-a- bitch, I told you I was going to get you," and then she shot and ran. I ran after her to take away the gun. While we were tussling over it, it went off and shot her. We were up close together; both of us had hold of the gun; she grabbed my broken arm; I snatched it and it went off. I didn't know the gun was loaded, but I saw her unbreech it while going down the road. She got the gun out of her room. It was my gun--a single barrel shotgun. I didn't shoot her. I could not have shot her. My arm was in a sling and in splints from my wrist to my shoulder and I could not get the gun up to my shoulder." The above testimony, if believed, would have warranted the jury in finding appellant guilty of involuntary manslaughter. The court gave the following instructions on manslaughter:

"8. Manslaughter is the unlawful killing of a human being without malice, express or implied, and without deliberation.

"9. Manslaughter must be voluntary upon a sudden heat of passion, caused by a provocation apparently sufficient to make the passion irresistible. This is voluntary manslaughter.

"10. If the killing be in the commission of an unlawful act, without malice and without the means calculated to produce death, or in the prosecution of a lawful act done without due care and circumspection, it shall be manslaughter. This is voluntary manslaughter.

"11. Under the indictment in this case it is competent, if the proof justifies it, to find the defendant guilty of murder in the first degree, murder in the second degree, voluntary manslaughter or involuntary manslaughter.

"16. If you have a reasonable doubt as to whether it is murder in the second degree or voluntary manslaughter, you should convict only of manslaughter. If you have a reasonable doubt whether it is voluntary or involuntary manslaughter, you should convict only of involuntary manslaughter."

The appellant objected and excepted to the ruling of the court in giving each of the above instructions. While the court told the jury that they might find appellant guilty of involuntary manslaughter, there is no instruction informing the jury as to the punishment prescribed for such offense.

The testimony showed that the gun, from which the fatal shot was fired, was a single barrel shotgun. According to the testimony of the appellant, after Fannie Read fired the gun he ran after her for the purpose of disarming her and was trying to snatch the gun away from her when the same was discharged, causing her death. If the jury believed that such was the intention of appellant, this conduct on his part was not unlawful; but the jury was warranted in concluding that the death of Fannie Read was thus caused without due care and circumspection on the part of the appellant.

The court, in its instruction No. 10, told the jury that, if the killing was in the prosecution of a lawful act done without due care and circumspection, it was voluntary manslaughter. Applying the above instruction to the testimony, if the jury believed and accepted the testimony of the appellant, they had no alternative but to find him guilty of voluntary manslaughter. Instead of telling the jury that such conduct in the prosecution of a lawful act done without due care and circumspection was involuntary manslaughter, the court told the jury just the opposite. This was fatal error and highly prejudicial to the appellant; because, if the jury had been told that if they believed that the killing was done in the prosecution of a lawful act, but without due care and circumspection, they might find the appellant guilty of involuntary manslaughter, the jury under the evidence then would have been authorized to find, and might have found, the appellant guilty of involuntary manslaughter.

The jurors were not lawyers and did not understand the difference between voluntary and involuntary manslaughter. Under their oaths they had to try the case according to the law as declared by the court. The court, in its instructions, made no distinction between voluntary and involuntary manslaughter. The instructions concerning manslaughter were in irreconcilable conflict, and the jury, in attempting to follow them, would be led into inextricable confusion. The mistake of the court in giving conflicting and confusing definitions was not merely one of verbiage or a collateral misprision, which the jurors could themselves observe and correct. The jurors, being laymen, could not correct the mistake of the court. The fact should be noted here that the framers of the Revised Statutes and the Legislature of 1837 which adopted these "Revised Statutes" defining "manslaughter" as set forth in section one, and "voluntary manslaughter" as set forth in section two, do not designate the offense prescribed in section three as "involuntary manslaughter. " Chap. 44, § 3, Revised Statutes. The offense set forth in this section was first designated by our court as "involuntary manslaughter" in Harris v. State, 34 Ark. 469 at 469-79. The first digesters who designated it as such were Crawford & Moses, § 2356, C. &. M. Digest. When the Legislature itself has not undertaken to define "involuntary manslaughter," and only the Supreme Court and digesters have undertaken to do so, how could a jury of laymen know the difference between voluntary and involuntary manslaughter? They could not know, and even if they did know, they are nevertheless bound to take the law from the trial court. The mistake was one which the court alone could correct. The court was not asked by the State to correct it, and did not correct it. The appellant, by his general objection to that particular instruction, called the court's attention to such defects as rendered the instruction fundamentally wrong. The error was one of substance and not of form. It was an inherent defect. Therefore, a general objection to that particular instruction was sufficient to direct the attention of the court to it. Fones v. Phillips, 39 Ark. 17 at 17-40.

2. Appellant complains of the ruling of the court in refusing to give its prayer for instruction concerning the effect...