117 Ark. 233 | Ark. | 1915
(after stating the facts).
We think the court committed no error in admitting the proof of the dying declaration. The admissibility of such evidence is a preliminary question to be determined by the court, after a consideration of the proof of the conditions which make such evidence admissible. The case of Rhea v. State, 104 Ark. 176, reviewed a number of -the decisions of this court on this subject and quoted with approval the following language from Dunn v. State, 2 Ark. 229.
“The only satisfactory principle upon which the dying declaration of a person deceased can be admitted to establish the circumstances of his death appears to us to be that they were made at a time when, in the mind of the deceased, all 'expectation of recovery was yielded up and supplanted by the conviction that he would certainly die by reason of the injury received and under which he then languished; * * * and, therefore, to warrant their admission, it must be shown, in the first place, that the declaration was made under an apprehension of impending death. This may be collected from the nature and circumstances of the case, although the declarant did not express such an apprehension, nor is it essential that the party should apprehend immediate dissolution.”
“No one in resisting an assault made upon him in the course of a sudden brawl or quarrel, or upon a sudden eu counter, or in a combat on a sudden quarrel, or from anger suddenly aroused at the time it is made, is justified in taking the life of the assailant, unless he is so endangered by such assault as to make it necessary to kill the assailant to save his own life, or to prevent a great bodily injury, and he employed all the means in his power, eonsistent with his safety, to .avoid the danger and avert the necessity of killing. The danger must apparently be imminent, irremediable and actual, and he must exhaust all 'the means within his power, consistent with his safety, to protect himself, and the killing must be necessary to avoid the danger. If, however, the .assault is so fierce as to make it, apparently, as dangerous for him to retreat as to stand, it is not his duty to retreat, but may stand his ground, and if necessary to save his own life, or to prevent a great bodily injury, slay his assailant. ’ ’
Another instruction, numbered 14, was a very clear and full declaration .of the right of a person assaulted to act upon the circumstances as they appeared to him. Under the evidence upon the part of the State, appellant was guilty of .a higher grade of homicide than that for which he was convicted; while under that of himself and his brother he fired the fatal shot in his necessary self-defense; and we think the fifteenth instruction above set out sufficiently declared the law to enable the jury to pass upon those questions of veracity. Of course, cases might arise where the orderly administration of justice would require the court to declare the law of self-defense in a more concrete form than that contained in this fifteenth instruction; but we think there was no such necessity under the evidence in the present ease, and that no prejudicial error resulted from the court’s failure to give appellant’s instructions numbered 10 and 11, even though they were held to be correct declarations of the law.
Other questions are raised in the brief, but we find it unnecessary to discuss them here. Finding no prejudicial error in the record the judgment of the court below is affirmed.