73 Ark. 126 | Ark. | 1904
In April, this year, in Crawford County, Kin-man shot and killed Maurice Combs. The grand jury indicted him for murder in the first degree. He was tried upon that indictment, convicted of manslaughter, sentenced to two years in the penitentiary, and obtained appeal to this court. The only questions raised are as to the giving of instructions numbered 5, 7 and 8, which will be set out by the Reporter. •
It is claimed that instruction 5, as to resisting an assault made in the course of a brawl or quarrel, etc., is without evidence justifying it being given. On the day prior to the homicide Kinman had a difficulty with Maurice and E. E. Combs, brothers, aged, respectively, 15 and 19 years. This quarrel resulted only in a war of words, a warm invitation to Kinman to fight, and long range rock throwing on both sides. That night Kinman armed himself, and resumed plowing the next day in a field near where the Combs brothers were living. Returning from fishing on this afternoon, the boys came into this field; and, on the one hand; it was testified by the survivor of them that when passing nea'r Kinman he said he would put a stop to their walking over this plowed ground, and Maurice said, “Don’t shoot,” and Kin-man immediately fired, killing him instantly. On the other hand, Kinman testified that they approached him as if to surround him, used menacing language and opprobrious epithets, and Maurice had his hands in his pockets. No attempt was made to show that Maurice was apparently about to use a weapon, other than the language employed. This evidence was sufficient to present the phase of the case that the assault was made in the course of a sudden brawl or quarrel, or upon a sudden rencounter, or in a combat on a sudden quarrel, or from anger suddenly aroused. While the instruction covers a wider range of the law than the facts present, yet it does so correctly, and upon some facts fairly calling for an instruction on this subject.
The objections urged to instructions 7 and 8 are not that they state the law incorrectly, but that the evidence of the State sho-ws murder in the first degree, and the evidence of the defendant shows justifiable homicide, and that there is no evidence wffiich could create the impression on the mind of Kinman .that these boys intended bodily harm, but not great bodily harm or taking life. The jury was not bound to accept either version of the affair, and, in fact, did not; evidently regarding each as overdrawing his side of it, and finding the truth in the “golden mean.” Considering the previous threats to fight him, the appellant’s narrative of the manner of their approach, and the circumstances of the parties, it was fairly deducible therefrom that the approach was for the purpose of a fight, not a deadly combat, and this view made it proper and right for the circuit judge to instruct on the law governing such a situation.
Affirmed.
