61 Ark. 590 | Ark. | 1896
(after stating the facts.) We do not ..... discover any error, either m giving or refusing instructions, that would justify us in reversing the judgment of the circuit court. Although Richardson attempted to make the arrest without first informing the appellant of the warrant and the intention to arrest him, yet this did not justify the defendant in shooting the officer. The testimony of the appellant himself shows that he knew that Richardson had a warrant for him, and that his purpose was to arrest him. He should therefore have submitted to the arrest. 'Appellant testified that he intended to do this, but that Richardson, without attempting to arrest him, commenced at once, and without provocation, to shoot at him, and that, to protect himself, he returned the shot, and killed Richardson. If this testimony was true, the killing was justifiable; for one may defend himself against the wrongful assault of' an officer, as well as against the assault of a person who is not an officer. But this question was fairly submitted to the- jury, and their finding was against appellant. There was evidence amply sufficient to support the verdict, and we cannot disturb it.
During the progress of the conflict, which .resulted in the death of Richardson, there were several shots fired by the appellant, and two shots fired either by Richardson or his assistant, Simms. A witness was allowed to testify that, while these shots were being fired, the wife of appellant, who was present, called to witness “to come there, and not let Fish shoot any more;” that she also said to appellant, “Quit! Don’t shoot!” That, thereupon appellant ordered witness “to let him alone, and fired one more shot.”. It is contended that it was error to admit these declarations of the wife. At 'the time they were uttered she was endeavoring to stop the conflict, and to prevent further shooting. They were uttered in the presence and hearing of the appellant, had reference to him and his conduct, and were in part addressed to him. They tended to throw light upon his motives and conduct, and to explain his subsequent words when he said to this witness, to whom his wife had appealed, “Let me alone! Don’t touch me!” That these declarations were uttered by the wife of appellant-is no valid objection to their introduction, for they were not admitted to prove certain facts, and to supply the place of other testimony, as dying declarations are sometimes admitted, but only to explain and throw light upon the subsequent words and conduct of appellant'. People v. Murphy, 45 Cal. 137; Liles v. State, 30 Ala. 24. Our conclusion is that the evidence was properly admitted, and that, on the whole case, the judgment of the circuit court must be affirmed.
