Whit v. State

• Decision Date: 18 March 1905
• Citation: 86 S.W. 284,74 Ark. 489
• Parties: WHIT v. STATE
• Court: Arkansas Supreme Court

86 S.W. 284

74 Ark. 489

WHIT v. STATE

Supreme Court of Arkansas

March 18, 1905

Appeal from Nevada Circuit Court, JOEL D. CONWAY, Judge.

Defendant was indicted for murder, and convicted of voluntary manslaughter. Affirmed.

Defendant's attorney in his argument to the jury said that two witnesses testified that defendant and deceased both began to strike at each other at the same time, and three witnesses testified that deceased did not strike at defendant at all. "Now you do not know, and cannot know, which told the truth. I do not know. I do not know, nor does the prosecuting attorney know, which statement is correct. This state of evidence necessarily raises a doubt in your minds as to whether or not deceased was offering to do violence to the defendant and to do him great bodily harm. Therefore, under this testimony and under instructions of the court (referring to the instructions on reasonable doubt, which he had just read to the jury), there is a reasonable doubt in this case, and you should acquit the defendant." In reply to this argument the prosecuting attorney read to the jury an instruction given on behalf of the State relative to the burden of proof when the killing was proved, being in the exact language of the statute (Kirby's Dig. § 1765), and said, after reading the instruction, that under the evidence in this case, and the law, the burden of the proof is on the defendant to remove the doubt that his attorney referred to. To this statement the defendant objected, and the court told the jury to be governed by the instructions and the evidence in the case, and told the prosecuting attorney to proceed and the defendant excepted.

In the same speech the prosecuting attorney further said: "In this case, the killing being proved, the burden of the proof rests upon the defendant; and therefore the law on reasonable doubt is against him." To this remark the defendant at the time objected, and the court told the prosecuting attorney to proceed with his argument, and the defendant excepted.

Judgment affirmed.

J. O A. Bush, for appellant.

On a plea of self-defense when the defendant offers proof in support of his plea in quantity and quality sufficient to raise in the minds of the jury a reasonable doubt as to his guilt, he is entitled to the benefit of that doubt. 23 Mont. 163; 1 McClain, Cr. Law, §§ 179, 316.

Robert L. Rogers, Attorney General, for appellee.

OPINION

HILL, C. J.

Tom Whit was indicted by the grand jury of Nevada County for murder in the first degree, charged with the...