109 Ark. 516 | Ark. | 1913
(after stating the facts).
In Allison v. State, 74 Ark. 444, we said: “The question of whether it is proper to submit to the jury the question of the defendant’s guilt of any particular grade of offense included in the indictment must be answered by considering whether there is evidence which would justify a conviction for that offense.”
Under the testimony in this case on behalf of the State, the jury would have been warranted in finding the defendant guilty of at least murder in the second degree. The court therefore did not err in submitting to the jury the issue of appellant’s guilt or innocence of the crime of murder in the second degree. One of the witnesses testified that appellant shot Barr while the latter had his right hand on the shoulder of his brother and his left hand hanging down by his side, the same not being in Ms pocket, and that Barr was making no effort with either hand. TMs testimony was sufficient, if believed by the jury, to have warranted the jury in returning a verdict of at least murder in the second degree, and therefore there was no error in the giving of instruction No. 4 See Allison v. State, supra. Moreover, the instruction, even if improper, was not prejudicial because the verdict of the jury was for the lowest grade of homicide included in the indictment.
The court gave an instruction on reasonable doubt which fully covered the modification asked by appellant, and it was therefore not error to refuse this modification. See Petty v. State, 76 Ark. 515-517.
The court, in its instructions 8 and 9, fully covered the matter presented by appellant’s prayer as to the presumption of innocence, and there was therefore no error in refusing such prayer.
Where a witness at the trial gives different testimony from that testified by him before the grand jury, the prosecuting attorney, being surprised by such testimony, may read or have the witness read, Ms testimony taken before the grand jury, and may question Mm concerning the correctness thereof. Derrick v. State, 92 Ark. 237-239. See also, Davidson v. State, 108 Ark. 191.
It is Avithin the discretion of the court to allow the jurors to separate or to keep them together, (Kirby’s Digest, § 2390), and as the court had not exercised its discretion to keep them together at the time the conduct of the juror here complained of occurred, the burden was upon the defendant to show that the juror was. exposed to improper influences. See Beeves v. State, 84 Ark. 572.
The record is free from errors prejudicial to appellant, and the judgment must therefore be affirmed.