Wilson v. State

• Decision Date: 11 December 1916
• Docket Number: 34
• Citation: 190 S.W. 441,126 Ark. 354
• Parties: WILSON v. STATE
• Court: Arkansas Supreme Court

190 S.W. 441

126 Ark. 354

WILSON v. STATE

No. 34

Supreme Court of Arkansas

December 11, 1916

Appeal from Columbia Circuit Court; Chas. W. Smith, Judge; affirmed.

Judgment affirmed.

C. W McKay and Walker Smith, for appellant.

1. The court erred in giving instruction No. 5 for the State. It was misleading. 71 Ark. 459; 21 Cyc. 633; 67 Ark. 605.

2. The remarks of the prosecuting attorney were prejudicial and should have been excluded. 110 Ark. 528.

Wallace Davis, Attorney General, and Hamilton Moses, Assistant, for appellee.

1. There was no prejudicial error in the State's instruction No. 5. 71 Ark. 459; 71 Id. 459; 95 Id. 106; 96 Id. 629; 76 Id. 493; Ib. 517, 110, 489; 85 Id. 358; 98 Id. 436; 100 Id 183; 109 Id. 514; 120 Id. 200.

2. There was no error in the remarks of the prosecuting attorney. 110 Ark. 543; 74 Id. 259; 74 Id 256; 95 Id. 326; 94 Id. 518; 69 Wisc. 32; 100 Minn. 396; Thompson on Trials, § 964.

OPINION

WOOD, J.

At the August term, 1916, of the Columbia circuit court, appellant was convicted of the crime of murder in the second degree and sentenced to imprisonment in the State penitentiary for a period of ten years.

The indictment charged him with having committed the crime of murder by killing his wife, Maud Wilson, by giving her strychnine. It was a question for the jury, under the evidence, as to whether or not Maud Wilson died as the result of strychnine administered by the appellant for the purpose of killing her, or whether she died from Bright's Disease, with which she had been afflicted for some two years.

The evidence tending to prove that appellant poisoned his wife was circumstantial, but sufficient to sustain a verdict of guilty.

Among other instructions, the court gave the following: "The killing being proved, the burden of proving circumstances of mitigation that justify or excuse the homicide shall devolve on the accused, unless by proof on the part of the prosecution it is sufficiently manifest that the offense amounted only to manslaughter, or that the accused was justified or excused in committing the homicide provided the burden of the whole case is on the State, to show the defendant guilty beyond a reasonable doubt."

Appellant specifically objected to the giving of the instruction on the ground among others, that the instruction was abstract, and that it assumed that the killing by the defendant was proved, and that it cast the burden of proving circumstances of mitigation upon the defendant, and thus placed the burden upon him to show circumstances that justified or excused him in administering the poison.

The instruction is wholly abstract in a case where the killing is done by poison, or in any other case of wilful, deliberate, malicious and premeditated killing, such as to constitute only murder in the first degree. The case of Easter v. State, 96 Ark. 629, 132 S.W. 924, was such a case. There, as here, the court gave the instruction in connection with other instructions on the law of homicide, and of reasonable doubt, and the burden of proof in such cases. In that case, in commenting upon the ruling of the court in giving the instruction as set out above, we said: "It is contended that this instruction is not applicable where there was a conflict as to whether or not the defendant did the killing. It is true that this statute is applicable only where the killing is claimed to have been done in self-defense, and is not applicable in cases of killing by lying in wait. There is no prejudicial error, however, in giving it in any case, for no harm could result in giving it as an abstract proposition of law. The danger of giving it in the exact language of the statute is that it might be construed as an assumption by the court that the killing had been done by the accused. The instruction was not, however, objected to on that ground, and that construction seems not to have been placed upon it by court or counsel." Here the instruction was specifically objected to on the ground that it assumed that appellant did the killing, and the very next instruction, given at the instance of the State, submitted the issue as to whether or not appellant did the killing, and told the jury that unless they found that he did kill Maud Wilson beyond a reasonable doubt by unlawfully, wilfully and feloniously, after premeditation and deliberation, with malice aforethought, administering strychnine, that they should find him not guilty. And in the first instruction given at the instance of the appellant, the court told the jury, in substance, the same thing.

The instruction is in the exact language of the statute and when given in this form it could not be construed as an assumption by the court that the killing was proved, but is only tantamount to telling the jury that if they found that the killing by the defendant was proved, then the burden of proof was upon the accused, where self-defense was set up, to establish such defense, unless the proof introduced by the State showed it. This, as we have often held, does not shift the burden to defendant of establishing his innocence, but the burden of proof to show guilt in the whole case still rests on the State. Cogburn v. State, 76 Ark. 110, 113, 88 S.W. 822; Tignor v. State, 76 Ark. 489, 493, 89 S.W. 96; Thomas v. State, 85 Ark. 357, 358, 108 S.W. 224; Childs v. State, 98 Ark. 430, 437, 136 S.W. 285; Walker v. State, 100 Ark. 180, 183, 139 S.W. 1139; Brock v. State, 101 Ark. 147, 154, 141 S.W. 756; Scoggin v. State, 109 Ark. 510, 514, 159 S.W. 211; Johnson v. State, 120 Ark. 193, 200, 179 S.W. 361.

While an instruction given in this form was criticized in the case of Easter v. State, supra, it was not expressly condemned as prejudicial error in this form in any case, and we now hold that the instruction, even when given in the language of the statute, does not assume that the killing has been proved, but, when so worded, the effect of it is to submit that issue to the jury.

The contention that inasmuch as the instruction was abstract it was prejudicial is unsound, for the reason that the jury found a state of facts to exist which would make the instruction favorable rather than prejudicial to the interests of appellant. The jury, in other words, by their verdict of guilty, must have found that the appellant killed his wife, and they must also have found that he killed her by administering strychnine, for that is the only means which he employed to kill her if he committed the offense at all. Under the law, upon such a state of facts, the only correct verdict would have been murder in the first degree. Instead the jury went beyond its province and extended clemency to the accused by returning a verdict for murder in the second degree. Since the jury found the appellant guilty, he is in no attitude to complain, and was in no manner prejudiced, by the giving of an instruction the only effect of which,...