| Ark. | Jul 14, 1913
(after stating the facts). There ivas no error in the granting of prayer for instruction No. 11 at the instance of the State. This instruction is a copy of the statute. Section 1765, Kirby’s Digest. It does not shift the burden of proof from the State to the defendant' in- a trial for homicide; On the contrary, under it the burden of the whole case is on the State to show that the defendant is guilty of some degree of homicide. When the State has done this, then if there is nothing in the testimony adduced by the State to show that the accused is justified or excused, it devolves upon him to make such proof before he would be entitled to an acquittal. Where the testimony on behalf of the State tends to show the .killing, and that it was done as charged in the indictment, if there is nothing in the evidence adduced by the State tending to show that the defendant is guilty of manslaughter, then it devolves upon the defendant to bring forward such testimony if he would have the grade of homicide reduced from murder to manslaughter. In other words, where the killing is proved as alleged, and the testimony on the part of the State does not show, mitigation or excúse, or show a lower grade of homicide than murder, then the accused must be convicted unless he produces testimony to convince the jury that he is-innocent, or that he is guilty of a less degree of homicide than that of murder. Petty v. State, 76 Ark. 515" date_filed="1905-10-07" court="Ark." case_name="Petty v. State">76 Ark. 515. The statute does not shift the burden of proving guilt from the State to the defendant.
In many of the other instructions the court required that the jury should be convinced of appellant’s guilt “beyond a reasonable doubt” before they were authorized to convict appellant, and gave a correct instruction defining a reasonable doubt. So that the jury could not have understood that the burden of proof was on the ap-: pellant to establish his innocence. They were clearly told that it was the duty of the State to prove his guilt. See Thomas v. State, 85 Ark. 357" date_filed="1908-02-24" court="Ark." case_name="Thomas v. State">85 Ark. 357; Cogburn v. State, 76 Ark. 110" date_filed="1905-06-17" court="Ark." case_name="Cogburn v. State">76 Ark. 110.
The court, at the request of the State, granted-prayers telling the jury, in effect, that before the appellant could be justified in killing Wesson, it must have-appeared to him, that the killing was necessary in order to save his own life or to prevent his receiving great bodily harm, and that he must have acted in good faith, having reasonable cause for his belief, and that if it so appeared to him, acting in good faith, and he had reasonable cause therefor, he would be excused, though he might have been mistaken as to the apparent danger. In other words, that the circumstances surrounding the appellant must have been sufficient to excite the fears of a reasonable person placed in appellant’s situation.
The court, at the instance of the appellant, gave instructions to the effect that if the appellant believed that ■it was the intention of the deceased to kill appellant, or to do him some great bodily harm, and that appellant, without fault or carelessness on his part, shot the deceased, he was justified in so doing; that it was sufficient if the appellant, acting without fault or carelessness on his part, honestly believed that the killing was necessary, if he acted under such circumstances as made it reasonable to entertain that belief.
In Hoard v State, 80 Ark. 87" date_filed="1906-07-23" court="Ark." case_name="Hoard v. State">80 Ark. 87, this court held: That “it was not error to instruct the jury that one who killed another was justified in defending himself if it appeared to him, ‘acting as a reasonable person,’ without fault on his part, that he was in danger of losing his life or receiving great bodily harm, as the law presumes, where nothing to the contrary is shown, that the accused is of ordinary reason and holds hirii accountable accordingly.”
The instructions given at the request of the appellant followed the language of the rule approved by this 'court in Smith v. State, 59 Ark. 137, and Magness v. State, 67 Ark. 594" date_filed="1899-03-04" court="Ark." case_name="Magness v. State">67 Ark. 594.
The instructions given at the instance of the State followed the rule approved by this court in other cases. Palmore v. State, 29 Ark. 248" date_filed="1874-11-15" court="Ark." case_name="Palmore v. State">29 Ark. 248; Levells v. State, 32 Ark. 585" date_filed="1877-11-15" court="Ark." case_name="Levells v. State">32 Ark. 585; Fitzpatrick v. State, 37 Ark. 257.
Speaking for the court in Hoard v. State, supra, Mr. Justice Riddick said: “For ordinary cases, we think .there is no substantial difference in these two ways of stating the rule, and consider it a matter of form that should be left to the taste and judgment of the trial judge.”
Other instructions were given and refused, to which exceptions were duly saved, and which we have carefully examined, but find no prejudicial error in the rulings of the court.
Appellant contends that the court erred in permitting the witness, Turner Rogers, to testify concerning the declarations of the deceased to him on Sunday morning after the shooting; but the testimony was competent as showing dying declarations. Rogers testified that the deceased-told him “that he would not get well.”
Appellant contends that the court erred in not permitting him to show that the doctors had informed the deceased after the shooting that he would get well, but the appellant did not offer to show that' the doctors imparted such information to the deceased before he made the statements shown by the testimony of the witness, Rogers. There was nothing, therefore, in this offered testimony tending to rebut the testimony of the witness, Rogers, showing that the declarations of Wesson, the deceased, were made while he was in extremis.
The testimony was sufficient to sustain the verdict. The charge of the court correctly submitted the issues that -were raised by the evidence. There was no error in the rulings of the court in the admission or rejection of testimony.
We have considered the assignments of error presented in appellant’s motion for a new trial, and find that there is no prejudicial error in the rulings of the court in any of them. The judgment is therefore correct, and must be affirmed.