82 Ark. 58 | Ark. | 1907
(after stating the facts.) There was evidence to justify a verdict for murder in the first degree, aside from the testimony of Thomas Isaac. But, if the jury had believed appellant, they would have been warranted in acquitting him or in finding him guilty of voluntary manslaughter. The jury might have used the testimony of Isaac to supply the malice and premeditation which but for his testimony they might have concluded did not exist. The testimony of Isaac was therefore prejudicial. It tended to show a general malevolent spirit, a wicked and abandoned disposition; that appellant was in a frame of mind fatally bent on mischief which culminated in the killing of Bronson. But the testimony was clearly incompetent, because the threat “to shoot his gun till it melted,” made several hours, before the tragedy, was not directed against Bronson, the man who was killed, “but against another fellow.” The proof showed that there was no ill will between appellant and Bronson before the killing. On the contrary, they were shown to be on friendly terms. Appellant ate supper with Bronson at the latter’s home a short time before the killing. The threats -were “in the air,” so to speak. They were too remote and indefinite to become a part of the res gestae. Casteel v. State, 73 Ark. 152; Meisenheimer v. State, Id. 407; Levy v. State, 70 Ark. 610; Billings v. State, 52 Ark. 303; 21 Am. & Eng. Enc. of Law (2 Ed.), 219, 220; Bird v. United States, 180 U. S. 356. The admission of this evidence was error. No specific error is pointed out in the court’s charge, and we find none. The judgment is reversed for the error indicated, and cause remanded for new trial.
