Harris v. State, 119 Ark. 85

119 Ark. 85 | Ark. | 1915

Wood, J.,

(after stating the facts). Giving the evidence its strongest probative force in favor of the finding of the jury, it is still not sufficient to sustain the verdict for murder in the first degree. The burden of proof was on the State.

(1) There is no testimony tending to show that prior to the shooting the appellant harbored any malice or ill will toward John Daniels. The fact that John Daniels was at the home of the appellant, enjoying the hospitality which he had provided for his guests in the way of a dance and supper, or “festival,” as the witnesses designate it, would warrant the inference that, up to the time when the dispute between them arose, the appellant and Daniels were friends. If the contrary was true, the burden was on the State to prove it, and it has not done so.

(2) Now, in the absence of premeditation and deliberation, the 'killing can not be murder in the first degree. Kirby’s Digest, section 1766.

As early as Bivens v. State, 11 Ark. 455, 460 and 461, this court, through Mr. Justicé Scott, speaking of the character of proof necessary to. establish murder in the first degree, said:

“It is indispensable that the proof adduced shall be sufficient to satisfy the minds of the jury that the actual death of the party slain was the ultimate result sought by the concurring will, deliberation, malice 'and premeditation of the party accused. The distinctive feature of this particular class of cases of murder in the first degree being a wilful, deliberate, malicious and premeditated specific intention to take life. The inquiry then in cases of this class of murder in the first degree, must always be, was the killing wilful, deliberate, malicious and determined on before the act of killing. If it was, then that degree of malice has superinduced- the act that is necessary to make it rank in the highest grade of murder.

It is indispensable then in such cases that the' evidence should show that the killing with malice was preceded by a clearly formed design to kill — a clear intent to take life. It is not, however, indispensable that this premeditated design to kill should have existed in the mind of the slayer for any particular length of time before the killing. Premeditation has no definite legal limits, and therefore if the design to 'kill was but the conception of a moment, but was the result of deliberation and premeditation, reason being upon its throne, that is altogether sufficient, and it is only necessary that the premeditated intention to kill should have actually existed as a cause determinately fixed on before the act of killing was done, and was not brought 'about by provocation received at the time of the act, or so recently before as not to afford time for reflection. ’ ’

That these are essentials and must be proved in order to convict of the crime of murder in the first degree has since then repeatedly been held by this court, and there has been no change in the doctrine. See cases collated under note “K,” page 523, Kirby’s Digest. See, also, Green v. State, 51 Ark. 189; Cannon v. State, 60 Ark. 564; King v. State, 68 Ark. 572-75; Howard v. State, 82 Ark. 97, 101; Ferguson v. State, 92 Ark. 120-124; Gilchrist v. State, 100 Ark. 330-37.

(3) Applying the above doctrine to the facts of this record, the uncontroverted evidence shows that the killing of Daniels by the appellant was the result of a provocation, growing out of what the witnesses describe as a “squabbling” in the house of appellant, and in which appellant thought that Daniels was engaged. The witnesses for the State show that appellant approached Daniels, and those of them who purport to relate all that took place, state that appellant asked Daniels “What is the matter?” or “What is the trouble?” and asked him to go out of the house, but Daniels refused to go, and used braggadocio in bandying words with appellant, showing that he did not intend to leave the room or to desist from his conduct, which appellant conceived was causing the disturbance.

A majority of us have concluded that under these circumstances the killing could not have been murder in the first degree, according to the essential ingredients of that crime as defined by our statute and the many decisions of this court.

True, appellant, by providing the dance and supper to which he had invited his guests, had in a measure thus thrown open the doors of his home to the public. Nevertheless, appellant was still the head of his house, the master of his home, .and, as such, was the conservator of the peace and quiet of that home. He had the right, and it was his duty, under the circumstances, toward those whom he had invited there, to see that good order was preserved; and he had a right to request and to demand of those who were engaged in the quarrel or disturbance to desist 'and to go out of his house, and, upon refusal, to use such force as might be necessary to enforce his demands.

As before stated, there was no evidence of any bad blood between appellant and Daniels before the fatal ren-counter. There was no evidence of any malice, threats or any previously formed design upon the part of the appellant before that time to do Daniels any harm. In the opinion of the majority, the killing was the result of the sudden quarrel, brought on in an effort by the appellant to preserve the peace of his home on the occasion of the “festival,” and to remove Daniels, whose conduct had become objectionable to appellant, from the room.

(4) True, the provocation was not sufficient to justify the extreme measures to which appellant resorted, and it was not sufficient to reduce the killing from murder to manslaughter; but it was sufficient to reduce the homicide from murder in the first degree to that of second degree. Appellant acted hastily and in reckless disregard of human life. While there was no considerable provocation, and same was not apparently sufficient to arouse the passion of appellant and to make it irresistible, nevertheless there was some provocation. The uncontradicted proof shows, that the killing was done with a deadly weapon, and under circumstances from which the law would imply malice, ibut it was not done after that deliberation and premeditation essential to constitute murder in the first degree. See Howard v. State, 82 Ark. 97.

As -before expressed, the undisputed evidence, as we view it, shows that the killing was not the result of any previously formed design to kill, growing out of any grudge or ill will on the part of appellant toward Daniels; but was the result of the sudden quarrel or “squabble,” and there was an entire absence of such deliberation and premeditation as must be proved before one can be convicted of murder in the first degree. As was said in Harris v. State, 36 Ark. 127-33:

“A doulbt as to the degree of murder upon the facts of the case should be resolved upon a humane principle in favor of the accused.”

(5) This court has repeatedly held that where the evidence is not sufficient to sustain a verdict for murder in the first degree, but is sufficient to sustain a verdict for murder in the second degree, the cause, instead of being reversed and remanded for a new trial, may, with the consent of the Attorney General, be remanded with directions to sentence for mnrder in the second degree. Simpson v. State, 56 Ark. 19-20; Vance v. State, 70 Ark. 272-86; Darden v. State, 73 Ark. 315-21; Id. 80, Ark. 295-299; Howard v. State, supra; Pittman v. State, 84 Ark. 292; Warren v. State, 88 Ark. 322-24.

The judgment will therefore be reversed .and the cause remanded for a new trial, unless the Attorney General elects to have the appellant sentenced for murder in the second degree, in which event the trial court is directed to sentence appellant for that crime.