Vance v. State

• Decision Date: 15 March 1902
• Citation: 68 S.W. 37,70 Ark. 272
• Parties: VANCE v. STATE
• Court: Arkansas Supreme Court

68 S.W. 37

70 Ark. 272

VANCE v. STATE

Supreme Court of Arkansas

March 15, 1902

Appeal from Perry Circuit Court, GEORGE M. CHAPLINE, Judge, on exchange of circuits.

Reversed.

Judgment affirmed and cause remanded.

Pugh & Wiley, for appellant.

The evidence will not sustain a verdict of murder in the first degree. Cf. 11 Ark. 455; 29 Ark. 248; 36 Ark. 221; 56 Ark. 8; 60 Ark. 564; 20 Tex. 522. As to meaning of "deliberation" required in murder in the first degree, see: 3 Kan. 450, 483; 6 Neb. 136; 23 Ind. 231, 263; 28 Ia. 522; 60 Ark. 572; 25 Tex. 33; 20 Tex. 522; 43 Tex 322; 70 Mo. 599; 10 Yerg. 551-2; 69 Mo. 451; 15 Nev. 407; 6 Neb. 136; 3 Kan. 450, 483; 1 Whart. Crim. Law, § 381; 30 Tex. 466; 36 Tex. 523. If the intent is brought about by a provocation received at the time of the act, or so recently before as to afford time for reflection, it is not murder in the first degree. It is immaterial whether or not the provocation is justifiable. It is purely a question of the state of mind. Whart. Crim. Law, § 379; 69 Mo. 451-2; 66 Mo. 13; 64 Mo. 192; 15 Nev. 407; 74 Mo. 222. The indictment was defective in that it did not describe the manner of the killing. 26 Ark. 323; 27 Ark. 493; 34 Ark. 263. It was error to permit one of the state's witnesses to illustrate the killing and the quarrel by placing the attorneys in the relative positions of the defendant and deceased, because of the disparity between the size of the man selected to represent the defendant and the one who represented the deceased. 113 Ala. 70, 83-4; 1 Greenl. Ev. § 469d. The court erred in suppressing the deposition of Bud Lindsey on the ground of his conviction of larceny, because there was no record of his conviction offered in evidence. 58 Ark.277. The court erred in its fourth instruction to the jury. Whart. Crim. Ev. §§ 329-30; 59 Ark. 422, 427; 62 Ark. 478. The court erred in refusing appellant's ninth prayer for instruction. 55 Ark. 592, 602; 49 Ark. 543; 2 Comst. 193; 9 Am. & Eng. Enc. Law, 593; Whart. Crim. Law, § 484. The judgment is the only competent evidence of the conviction and none other is admissible, when objected to in time. I Greenl. Ev. §§ 375, 372; 58 Ark. 277, 279; 49 Ark 156, 158; Sand. & H. Dig. § 2959. But, had the evidence of his conviction been competent, it would have gone only to the impeachment of his testimony, and not to his competency as a witness. See connection in which said section appears in Kentucky Code, from which it is taken. Myers' Ky. Code, 170; id. 661. See, also 1 Greenl. Ev. (16th Ed.), 378a; Appleton, Ev. c. 3; 1 Greenl. Ev. (16th Ed.) Appendix 1. The exclusion of the deposition was prejudicial to appellant. 1 Bish. New Crim. Proc. § 1276; Whart. Crim. Pl. & Pr. § 802; 15 B. Mon. 539, 547; 22 Tex. 400; 2 Humph. 78, 82; 16 Ore. 419; 14 Tex.App. 388; 44 Ala. 32, 40. It was error to refuse to charge the jury on the law of manslaughter. 3 Kan. 450, 485; Whart. Cr. Law, § 480; 11 Ia. 350; 28 Ia. 522, 526; 32 Ia. 581.

George W. Murphy, Attorney General, and F. T. Vaughan, for appellee.

Since the instructions of the court fully covered every phase of the case, it was not error to refuse other cumulative instructions. 35 Ark. 585; 45 Ark. 539; 13 Ark. 314. The killing having been malicious, no instruction on manslaughter was proper. 30 Ark. 340; 34 Ark. 469; 36 Ark. 242; 37 Ark. 239-254; 29 Ark. 17; 50 Ark. 506; 52 Ark. 345; 59 Ark. 431; Hughes, Crim. Proc. § 3271; 7 Am. Crim. Rep. 439-442. There is no conflict between instructions Nos. 2 and 15. Hughes, Crim. Proc. §§ 2423, 2438, 2439, 3269; 84 Ala. 485; 72 Ala. 385; 70 Ala. 33. The twenty-fourth instruction asked by appellant was properly refused. Rogers, Exp. & Opinion Ev. §§ 197-207; 21 Ark. 350-4; 50 Ark. 511-520; 29 Ark. 117; 49 Ark. 147-8; 15 Ark. 492; 23 Ark. 115-116; 37 Ark. 581-591; 34 Ark. 469; 44 Ark. 115; 34 Ark. 696; 49 Ark. 439; Hughes, Crim. Proc. § 3254; 52 Ark. 263; 54 Ark. 621; 55 ib. 244. Lindsey could have refused to answer the question as to his former conviction. 48 Wis. 647-655; 13 Ark. 362. When he did answer it affirmatively, such answer dispenses with record evidence. 67 Ark. 278. It is allowable on cross-examination to ask the witness concerning former convictions, without producing the record thereof. 28 S.W. 12-14; Whart. Crim. Ev. § 274; 124 Mo. 513; Abb. Trial Brief, 171, 200; 8 Enc. Pl. & Pr. 118, 119; 16 Mich. 40; 19 Mich. 170; 94 N.Y. 137-144; 95 N.Y. 541; 38 S.W. 331; Bradner, Ev. p. 21, n. 12; 18 S.W. (Ky.), 1011; 38 S.W. 331; 93 Am. Dec. 203; 59 Kan. 404; 34 Ill.App. 84; 34 S.C. 16; 12 S.E. 619; 71 Cal. 195; 107 Pa.St. 486; 5 Gray, 578; 13 N.H. 92; 74 Ia. 310. Our statute (Sand. & H. Dig., § 2959) being taken from the Kentucky statutes (Carr, Ky. Code, § 597), we are bound by the construction placed thereon by the courts of that state. 93 Ky. 78; 18 S.W. 1011. If this ruling was erroneous, it was not prejudicial, and constitutes no ground for reversal.

RIDDICK, J. BUNN, C. J., concurred.

OPINION

RIDDICK, J.

The appellant, Reedy Vance, was indicted, tried and convicted of murder in the first degree for the killing of Lee Yick by shooting him with a pistol. He brings this appeal to reverse the judgment and obtain a new trial.

The circumstances of the killing were substantially as follows: Lee Yick, a Chinaman, kept a restaurant on Fifth street, in this city. On the 4th day of June, 1901, Vance went into this restaurant, and ordered a bowl of soup. After he had eaten his soup he started to leave the restaurant without paying the nickel he owed for it. Yick followed him, and asked him for the money. Vance, who had reached the sidewalk, and was walking away, waved his hand back at Yick, and this, it seems, made the impression on Yick that the money had been left in the restaurant. He thereupon stepped back into his restaurant, but returned at once and again asked for the money, saying: "Me see no money. Give me my money." Vance was some twenty feet from Yick and still going away. When Yick again asked him for the money, he turned, took a step or two towards Yick, threw at him some crackers which he had brought in his hands from the restaurant, then, drawing a pistol from his bosom, said, "Here's your money!" and fired. Yick fell to the sidewalk, mortally wounded, and died about an hour afterwards. This seems to us to be the truth of the matter, though there seems to be some conflict of evidence in reference thereto, which we shall notice further along.

Counsel have discussed quite a number of questions in reference to the rulings of the presiding judge on the trial, which, under the facts as we see them, we deem it unnecessary to determine. To eliminate these questions, we will say that, after a careful consideration of the evidence, we find nothing that would have justified the jury in acquitting Vance on account of insanity at the time he shot Yick. There is, it is true, evidence to show that during several years past Vance had acted at times in a peculiar manner; that he had both talked and acted in an irrational way. But we think it is conclusively shown that this was while he was more or less under the influence of intoxicating liquors. Drunkenness is, itself, a species of insanity, and a man who had for years been in the habit of indulging in occasional drunken sprees, who on one or two occasions had delirium tremens, was certain to have often spoken or acted irrationally, and more or less like an insane man. There is nothing strange about that. It is what we should expect of one who had used alcoholic drugs to that extent. But Vance was not suffering from delirium tremens or so much under the influence of strong drink at the time he killed Yick as to be unconscious of his acts or unable to control himself. He may have taken alcoholic drinks on that day, and may have been to some extent under the influence thereof, but he was not even drunk, much less in a condition to be irresponsible for his acts. This is conclusively shown, not only by the witnesses for the state, but by the testimony of Vance himself. Though the statement he gave of the tragedy was more or less favorable to himself, it agreed in many respects with the evidence on the part of the state, and shows that he had a clear recollection of the events leading up to and including the tragic act. Reading this testimony and the testimony of other witnesses concerning the conduct of Vance on that day, we entertain no doubt that Vance was sane at the time he killed Yick, and that an acquittal on that ground would have been a clear miscarriage of justice. This conclusion is also fully supported by the testimony of Dr. Illing, a medical expert, who had exceptional opportunities for judging of Vance's condition, and whose testimony is clear and emphatic to the effect that Vance was not insane.

Again we feel equally certain that the killing of Yick was not done in necessary self-defense. This is apparent from the testimony of Vance himself. He stated that after partaking of the soup he found that he had no money to pay for it, and started to go and get it, first explaining to the Chinaman that he would return soon and pay him. Thereupon he said that the Chinaman picked tip a long knife and followed him to the door, abusing him and calling to him to give him his money. He then continues his testimony as follows: "I moved my hand at him without stopping, and told him that I would bring him his money at once. He rushed frantically back into the restaurant. I walked on down the street to get away from him, but he returned to the sidewalk in front of his door at once. I felt sure, from what had occurred in the restaurant, that he had gone inside for a better weapon. I had seen a pistol lying on the shelf behind the counter, and I thought he meant to shoot me or throw a...