100 Ark. 139 | Ark. | 1911
(after stating the facts). Various assignments of error were contained in the motion for a.new trial, but we deem it unnecessary to discuss any of these, because, in our opinion, the testimony of appellant himself, which states the case in the most favorable light that it can be considered in his behalf, makes him guilty of murder in the second degree, and he therefore cannot complain of a verdict of the jury that convicts him of manslaughter. According to appellant’s testimony, he was seeking to arrest one Luster, and through mistake killed John Duncan, under the circumstances detailed by him, because he believed that Duncan was Luster, and that Luster was attempting at the time to shoot him. But, if the deceased, Duncan, had been Luster in fact, still appellant, under the facts stated by him, could not have set up the plea of self-defense in taking the life of Luster, but would have been guilty of murder in the second degree in so doing. Through appellant’s own negligence and violation of the statute, he brought on the necessity for the shooting which he says he did in order to prevent the deceased from killing him. Appellant says: “I didn’t shoot him for the purpose of making the arrest; shot him because he drew a gun on me.” A peace officer can only make an arrest for a misdemeanor where a warrant is placed in his hands, or, without a warrant, where the offense is committed in his presence. Sec. 2119, subdivisions first and second, Kirby’s Digest. The statute requires that no unnecessary force or violence shall be used in making an arrest, that the person making the arrest shall inform the person about to be arrested of the intention to arrest him and the offense charged against him, for which he is arrested, and, if acting under a warrant of arrest, shall give information thereof, and, if required, show the warrant. Secs. 2123 and 2124, Kirby’s Digest. The appellant did not observe these statutory requirements in attempting to make the arrest. He was not even armed with a warrant for the deceased. It was not shown that the deceased and Luster bore any resemblance to each other. Appellant did not attempt to inform Duncan, supposing him to be Luster, that he had a warrant for him or of his intention to arrest him. He did not say to him, when he saw that Duncan had drawn his pistol, that his only purpose was to arrest him for carrying a pistol. The conduct of appellant, in short, amounted to criminal carelessness, and was wholly unjustifiable in an officer of the law, and was such as to imply malice on the part of appellant. It showed a reekless disregard of human life, and what the jury might have considered a wicked and abandoned disposition. As an officer of the law, his supreme desire should have been to protect, rather than to take the life of, the one whom he was seeking to arrest. His own evidence shows that he shot at deceased because he supposed that the deceased was intending to shoot him, but he had made no effort, by peaceful means and as the law directs, to withdraw from the encounter which he had brought on. The case is ruled by the principle announced by this court in the recent case of Taylor v. State, 99 Ark. 576, where Mr. Justice Hart, speaking for the court, said:
“We are of the opinion that, under Taylor’s own testimony, he is guilty of manslaughter. 'He admits that he was the aggressor; he brought on the combat by striking Cain in the face. As stated in the case of Carpenter v. State, 62 Ark. 307: ‘After having provoked or invited the attack or brought on the combat, he cannot be_excused or justified in killing his assailant for the purpose of saving his own life or preventing a great bodily injury until he has in good faith withdrawn from the combat as far as he can, and done all in his power to avoid the danger and avert the necessity of killing.’ Because the undisputed evidence shows Taylor was guilty at least of manslaughter, and because the jury gave him the least punishment for that offense, no errors in the instructions of the court could be prejudicial to his rights, and it is well settled that this court reverses only for prejudicial errors. Daniel v. State, 76 Ark. 84.”
So we say here, because appellant’s own evidence in its most favorable light shows him to -be guilty of a higher crime than that for which he was convicted, he has no grounds for reversal for any of the alleged errors in the rulings of the court set forth in his motion for a new trial. The judgment is right, and it is therefore affirmed.