ARK.] STANLEY V. STATE. 779 STANLEY V. STATE. Crim. 3837 Opinion delivered June 12, 1933. L CRIMINAL LAW—REPETITION OF INSTRUCTIONS.—It was not error to refuse to give requested instructions fully covered by those given. 2. HOMICIDE—SELF DEFENSE—INSTRUCTION.—Where a plea of self defense was not supported by evidence, an instruction upon that .defense was properly refused. 3. CiumINAL LAW—INSTRUCTION—HARMLESS ERROR.—While it iS proper to instruct the jury that the fact that defendant has been indicted is not to be considered as evidence against him, refusal of such instruction is not prejudicial where proper instructions were given on the presumption of innocence, burden of proof and reasonable doubt. 4. CRIMINAL LA W— INSTRUCTION.—An instruction that "the law, in order to convict, does not require that the guilt of the accused• shall be made out to a maihematical or absolute certainty, but it does require that it be made out to a moral certainty" was not erroneous in failing to add the words "beyond a reasonable doubt" Where other instructions required the jury to be convinced of guilt beyond a reasonable doubt. • Appeal from 'Franklin Circuit Court, Ozark District ; J. O. Kincannon, Judge ; affirmed. J. P. Clayton and Cravens, Cravens & Friedman, for appellant. Hal L. Norwood, Attorney General, and John H. Caldwetl, Assistant, for appellee.
780 STANLEY V. STATE. [187 MCHANEY, J. Appellant was convicted of Murder in the second degree on a charge of murder in the first degree for !the killing of his: nephew, Gordon Stanley, and sentenced to five years in the penitentiarY: Four errors are,assigned and now urged for a reversal of the judgment—two yelating: to requested instructions refused by the court and two relating to instructions given on the . court's own .motion over: his objections . and exceptions. • . - 1. The first relates to requested instructions Nos. 10 and 12 refused. It is said that No. 10, "together with requested instruction No. 12, would have told the jury with reference to the plea of self defense of appellant that it was only necessary for the danger of attack from deceased to have appeared to the appellant to make it necessary to take deceakd lite. In other words, that, it need not appear to the jurythat there : was any danger, but that the appellant would have been justified in killing in self defense if . :it *appeared : to. him, acting without fault or .carelessness, that there was such .danger." These y equests were fully . covered . by instructions 16 and .17 given by the court, and it was-not necessary or'proper to multiply instructions on the same--. subject, Moreover, : -We' have been unable to find any' evidence' in the recOrd to 'SUpport a;Plea of' self defenSe or any instructions on the subject. The UndisPuted . Mcts' shoW that aPpellant killed the deceased without justification.. "Justifiable homicide is the killing of a. human being in neces-:, sary self-defense, or in defense -of Iabitation,-'person or property, against one who manifestly intends or endeavors; by violence or ,. surprise, to commit a 'known felony." Section . 2369, ..Crawford Moses ' Digest. Neither at. .the time of the:killing, nor, at any, other time, did the deceased attack or • threaten the person of appellant,.nor does it appear that be intended . or:endeavored to commit a felony agOnst. appellant 's habitation, person or property. We do not review the evidence, a : s no useful purpose could 'be served thereby. It is sufficient to say that a plea of self-defense was not supported by any evidence.
ARK.] ,STANLEY V. STA1.. s 781 2. It is next urged that error was committed in refusing to give requested instruction No. 14, which would have told the jury that the fact that appellant had been indicted by the grand jury, was not to . be considered as evidence against him. , While it is entirely proper to .gii7e such an instructien (Worthem v. State,'82 Ark.. 321, 101 S. W. 157; Latourette v. State, 91 Ark. 65, 120 S. W. _411; State v. Fox, 122 Ark. -197, 182 S. W. 906), its refusal would not be .prejudicial and would not justify a reversal, especially Where instructions are properly given on the presumption of innocence, the blirden of proof and rea g onable doubt, as is the fact in this case. 3. The third assignment complains of the -giving of instruction No;16 relating to the law of self-defense, in that, in order -for such plea to be available to him, he thirst have in good . faith endeavorea to 'decline 'further contest. What we . have already said disposes of this 'aj ssignment. There' Was - no contest 7 —none to further decline. So, -whatever, error there Was in this connection was in giving any, instruction at all on self-defense,—an .error in appellant's favor for which he cannot complain. 4. Finally it is said the court erred in gMiig instruction No. 20. It follows : "The law; in . -order tO convict, does not reqiiire that the guilt of. the accused 'shall I be made out to a mathematical or absolute certainty, but it does require that it be made out to a morai certainty, which is a certainty that convinces and directs your understanding and satisfies yofi reason and jiiagment that the defendant is guilty." The complaint made of this instruction is that it did not conclude with the words "beyond a reasonable doubt:" There is no merit in this criticism. Instruction No. 19 immediately preceding . ' Wg,s on presumption of innocence and reasonable doubt, and No. '20 was a further explanation . of -what was reqUired to be convinced of gnilt .beyend a reasonable doubt; was as favorable to appellant ds : the law warrants: Affiimed. :;:: f "i 7
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.