52 Ark. 345 | Ark. | 1889
Lead Opinion
As to the first, second and third grounds of the motion, we think the verdict warranted by the evidence apd the law as given by the court. Nor was it error to refuse the first, fourth and fifth instructions asked by defendant, in view of the charge actually given. The sixth ground for new trial was matter resting in the sound discretion of the court, and no abuse of such discretion appears. The fourth ground of the motion challenges the correctness of the charge in that it failed to state, the law applicable to the lower degrees of homicide. The charge should be based upon the evidence, and it is difficult to imagine how instructions as to murder in the second degree or manslaughter could have been given when all the evidence was to the effect that the killing was: assassination of Keltner, at night, by his fireside, by some one who fired through a crack from without. The trial court should in no case indicate an opinion as to what the facts establish but in properly giving the lazv the court must of necessity determine whether there is any ezñdence at all justifying a particular instruction. See Fagg v. State, 50 Ark., 506, and cases cited.
One of the matters argued, though not raised in proper ■form, is the alleged error of the court in excluding the testimony offered as to the dying declaration of Keltner. The witness says that some hours after the shooting Keltner said that Samuel Hall shot him.
In the case at bar it was a physical impossibility for Keltner . to have seen who shot him, and the consciousness of wrong done in the killing of Hall’s father made him swift to suspect Hall of the commission of this crime.
The facts in the case of Nick Walker v. State, 39 Ark., 225, were very similar to those now before the court, and the-declarations in that case were held to be properly admitted.
The court divided, however, upon the question as to whether it was possible for the declarant to have seen Walker, and a majority sustained the trial court in the view that it was possible.
Affirmed.
Concurrence Opinion
I concur in this opinion, except that I think, upon the whole case, the judgment should be affirmed.
Dissenting Opinion
(Dissenting.) I am unable to concur in 'the opinion of the court in this case; but think that the judgment should be reversed and a new trial awarded.
The charge of the court was entire ; not as is usual, divided -into a number of instructions. It contained reference alone to the law applicable to murder in the first degree. It announced 'that the defendant was charged with murder in the first degree ; .and instructed the jury that if they found him guilty, as •charged, they would return a verdict of guilty of murder in the first degree.
No jury of good intelligence could have understood the ■charge in any other way than as directing a conviction for murder in the first degree or an acquittal. True, there was no language expressly prohibiting a conviction for a lower grade ■of homicide; but substantially, the direction to convict of murder in the first degree or acquit, implied a prohibition against •a conviction of a lower grade of offense. In my opinion this •court should treat the charge as saying what it fairly imports, and would naturally be received by an honest and intelligent jury ■as meaning. We should not endeaver to find a meaning different from that, and impress this meaning upon the charge, although, if so interpreted, it might properly declare the law. 'The force of the charge rests in its interpretation by the jury; it should not only properly declare the law, but also declare it in a manner to be properly understood.
I am unable to reconcile this charge with the law as declared in the case of Flynn v. The State, 43 Ark., 289. In that case the Circuit Judge in concluding his charge, “instructed the jury that if they found the defendant guilty they should •assess his punishment at not less than three nor more than •twenty-one years in the penitentiary, and that in this case the defendant was guilty of an assault with intent to kill, or that 'he was guiity of nothing.” This court say, “the charge in the case at bar left the jury no room to infer anything in regard to the degree of the offense, or of the nature of the penalty, but cut them off from finding the prisoner guilty of any of the-lower grades of assault, as they might have otherwise done. Under an indictment, such as we have here, a prisoner may be-convicted of any one of several very grave offenses, an assault with intent to murder being the highest in degree, and he has-the right to have judgment of the jury uninfluenced by any direction from the court as to the weight of evidence.” The-judgment was reversed.
Now, under the indictment in the case at bar, the jury-might have convicted the appellant “of any one of several very grave offenses,” murder in the first degree being the highest,, and he had a right to have the judgment, of the jury “uninfluenced by any direction from the court as to the weight of evidence.” Was the right accorded him? Was the jury permitted to act uninfluenced by any direction of the court? The-court said, the defendant is charged with murder in the first degree; then follows a lengthy instruction as to the law applicable to murder in the first degree; there is nowhere an intimation that the indictment contained a charge of the lower-grades of homicide, or that the jury could convict therefor. It concludes by saying: “If you find the defendant guilty as charged, you will say, we, the jury, find the defendant guilty of' murder in the first degree.” If the jury was uninfluenced by this charge, and was not restrained from convicting for a lower grade of offense, I am of opinion that the charge had an effect different from that intended by the learned Judge. In a proper case, I think such an instruction ought to be given ;., but I am satisfied that this court has not so ruled, and I am not willing to change the rule by refinement of language and confusing distinctions.
In a later case this court discussing the same question says :. “But the court cannot direct a verdict for the higher offense,., nor restrain the jury from returning it for the lower grade.”" Fagg v. State, 50 Ark., 506-8.
It may be said that no exception was properly saved to the ■charge. The exception was to the charge in solido; as the ■charge was not divided, but given as an entirety, it may well be contended that the exception was sufficient. Be that as it may, the law denounces the penalty, of death against the murderer, and not against the unskilful or unwary. I cannot ■concur in a judgment, which, because a defendant has not conformed to a technical rule in preparing a bill of exceptions, dooms him to the gallows. I esteem fixed rules, intended to secure orderly procedure in the courts; but think all such ■technical rules should yield, when necessary, to protect the life of a human being.