| Ark. | Sep 30, 1905
(after stating the facts.) This is an appeal from a judgment convicting the defendant of murder in the first degree. The defendant is a negro, and the person whom he killed was a negro. The evidence of his guilt is amply sufficient to-sustain the judgment, but we are of the opinion that the court erred in giving the 18th instruction set out in the statement of facts. We see nothing in the evidence that justified such an instruction.. It is not shown that any one besides the defendant and his wife and the deceased, Dary, was present at the time the killing took place. His wife was not a competent witness, and he could not put her on the stand. The law did not require that the defendant should testify, though he did take the stand and testified fully in regard to the circumstances that led to the death of Lary. Whether this testimony was true was a matter for the jury, and not the court. If this instruction referred to the failure of defendant to show the facts in reference to the previous assault which defendant testified that he had heard was made by Dary upon defendant’s wife, it was improper, for this assault happened two weeks before the killing, and was- no justification therefor, and the failure of the defendant to prove the facts in reference thereto was no evidence of his guilt. If it was competent for defendant to prove the circumstances of such assault, it does not appear that the facts and circumstances in reference thereto were so peculiarly within his knowledge, or that they were of such nature, as to justify this instruction to' the effect that where evidence which would rebut or explain “facts and circumstances of a grave and suspicious nature and peculiarly within defendant’s knowledge and right, and he makes no effort to produce the same, the jury may properly take such fact into consideration in determining defendant’s guilt or innocence.” There was nothing about this reputed assault that justified the court in referring to it as of a grave and suspicious nature, while, as we have stated, the defendant testified fully in reference to the facts of the homicide. The effect of this instruction was aggravated by the argument of the prosecuting attorney, in which he called attention to the failure of the defendant' to prove the report of the attempted assault of Dary upon his wife, which proof had been excluded by the court.
Again, the court gave section 1765 of Kirby’s Digest, to the effect that, the killing being proved, the burden of proving circumstances that justify or excuse the homicide devolves upon the accused, etc. Now, this instruction is taken from the statute, and is the law, but it should have been accompanied with an instruction that on the whole case the guilt of the defendant must be proved beyond a reasonable doubt, so that the jury might understand that, though the burden of proving acts of mitigation may devolve on the accused, it is sufficient for him to show facts which raise in the minds of the jury a reasonable doubt as to his guilt. Cogburn v. State, ante p. no. But, so far as the record here shows, the court did not refer tó thé question of reasonable doubt in any portion of his charge. The only reference to that question found in the record is in an instruction asked- by defendant which was refused, and properly so, because it did not state the law correctly. While the failure to give an instruction on that point was not of itself a reversible error, for the reason that the defendant did not ask any proper instruction on that point, still the failure to give such an instruction emphasizes the error in giving instruction 18, to' which we have referred. On the whole case, for the reasons stated, we are of the opinion that there was error in the charge of the court, and for that reason the judgment must be reversed, and a new trial granted. It is so ordered.