774 _BOOE v. STATE... [188 BOOE v. STATE. , Crim. 3871: ,Opinion delivered February 5, 1934. 1.• HOMICIDE—PREMEDITATION AND DELIBERATION.—The law fixes . no --time in which the elements of murder in the first degree must be . .formed in the mind of one who takes.life, but the existence of the fact is a matter for determination by a jury from all the facts and circumstances surrounding the homicide. 2. H OMICIDE — SUFFICIENCY OF EVIDENCE.—Evidence held to sustain a conviciion of murder in the first degree: 3. Horvacn p u--CORROBORATION OF ACCOMPLICE.—Defendant's confes-, sion after arrest that he killed deceased held a sufficient corrob- .or . ation of an accomplice's testimony to warrant• conviction for first degree murder. 4. CRIMINAL LAW — CORROBORATION OF ACCOMPLICE.—Corroborating eiidence need not be sufficient to convict, but is sufficient if it • -tends to connect defendant with commission of the crime. 5.. CRIMINAL LAW—ADMISSION OF CONFESSION.—In a prosecution for murder, a confession of defendant, made voluntarily and without promise of immunity, held admissible. 6:' CRIMINAL LAW—REFUSAL OF INSTRUCTION CURED.—Error in refusing to instruct that an -accomplice's testimony must be corrob-... orated by -testimony connecting defendant with the homicide held c ' ured . by another instruction given. .7. . CRIMINAL LAW — ARGUMENTATIVE INSTRUCTION.—An instruction that, if ari accomplice had been promised immunity, the jury could consider whether he was telling the truth or testifying to incur the State's favor held properly refused as argumentative. Appeal from Pulaski Circuit Court, First Division; AUner McGehee, Judge; affirmed: Claude Cruse, ' C. C. Beard and Reed (6 Beard, for , • . - Hal L. Norwood, Attorney . General, and John H. Caldwell, Assistant, for appellee. HUMPHREYS, J. ,Appellant_was indicted, tried and convicted_ in the circuit court of Pulaski County, First Division, for the crime of murder in the first degree for killing M. E. Stephens, and was adjudged to serve a life term in the State Penitentiary as punishment therefor, from which is this appeal. Appellant's first assignment of error is that the evidence is . insufficient to support the verdict and judgment
ARK.] BOOE v. STATE. 775 and, for that Matter, any degree of homicide except manslaughter. . It is argued that the evidence fails to :reflect any malicious intent on the part of appellant to • kill-M. E. Stephens which was put into execution after, premeditation and deliberation. -The suggestion is made that appellant and deceased were entire strangers, and that the killing occurred in such a short time after they met that the elements of malice, premeditation and deliberation could not have been conceived in the mind of appellant before he shot and killed deceased. The law fixes no time in which the elements of murder in the first degree must be formed in the mind of one who takes life, but the exist:- ence of the fact is a matter for determination by a jury from all the facts and circumstances surrounding and entering into the -homicide. Green . State, 51 . Ark. 189, 10 S. W. 266; Ferguson v. State, 92' Ark. 120, 122 8. W. 236; W eldon v. State . , 168 Ark. 534, 270 S..W. 968. plying this rule to the facts and circumstande§ in:the instant case, we are of opinion that they fully warranted the jury in finding that the killing of M. E. Stephens by appellant was murder in the first degree. Stating the facts mosf strongTy in favor of the State,.the record of the evidence reflects that appellant, in company with a friend and companion by the name of Jim Jones, drove his car to the filling station of deceased, ordered some gasoline, and killed him when he demanded payment for his gasoline. According to the testimony of Jones; When appellant refused to pay for the 'gasoline, deceased igot on the running board and tried to stap them So'ds to.get his pay by striking at aPpellant with his 'fisthvhere , n • p b`n appellant picked up a pistol bring between theria,oiill?.e seat and shot at deceased twice, one shot taking eirect a. .nd killing him, and that they then alodconded and suc0"sSfnily, made their escape. Appellant hiniself confes§ed . that he killed deceased. Appellant also contends that the confession of appellant after arrest that he ldlled deceased was not sufficient corroboration of his accomplice, Jones, -ta warrant
777_6 IlooE- V. STATE. [188 the . conviction. The rule is to - the contrary. . Knowles-v. State, 113 Ark. 257, 168 S. W. 148, Ann. Cas. 19160, 568. - Appellant also contends that the confession. did .not Show the degree of the crime, but merely admitted the killing. The rule is that the corroborating evidence need not be sufficient to convict, but is sufficientif it tends to connect the defendant with the commission of the crime. Hawkins v. State, 148 Ark. 351, 230 S..W. 5. Certainly appellant's confession connected him sufficiently with the commission of the crime. The court also properly admitted the.confession for consideration of the jury after finding that it was made voluntarily and without the promise of immunity. • Appellant also assigns as error the refusal of the court to give his reqUested instruction No. 2A, which proposed to tell the .jury that . accomplice Jones' -testimony must be corroborated by other testimony connecting him with the crinie before they can convict him. . This was . a correct declaration, of the law, and should have been given, but the error was cured by inStructien NO. 19, which was given by the court before . submitting the case-to the jury. Instruction No. 19 fully -Covered instruction No: 2A requested by appellant. . Appellant also assigns as error _ . ' the refusal of the court to give his requested instruction No. 3A, which is as :follows : "There has been evidenee offered tending to show that the witness Jones has been promised some munity from the part . witness Jones took in his acts connected. with the killing of Stephens. If you believe from the evidence in this case that witness Jones had .been promised by any one as an officer of this court any less punishment or _immunity for testifying against -this- defendant, you have a right to take into consideration, in determining whether witness Jones is telling the truth in this case, or is testifying against 'defendant, Beoe,. in order to incur favor with the State to the end that his punishment would be lighter for the part he took, either in taking the life of Stephens, or in accessory after the fact to said killing of Stephens."
. This instruction is clearly argumentative, and, for that reason, the court properly excluded it. By reference to the instructions, it will be seen tbat the court gave the following instruction: "You may judge of the credibility of a witness by the manner in which he kives his testimony, his demeanor upon the stand, the reasonableness or unreasonableneSs of his testimony, the means of knowledge as to the facts about which he testifies, the conSistency or inconsistency of his testimony with itself or the other testimony in the case, his interest in the case, the feeling he may have for or against the defendant, his bias for or prejudice against the defendant, or any other fact or . cricumstance tending to shed light upon the , truth or falsity of such testimony, .and it is for,you at last to say what . weight you will give the testimony of any or all witnesses." The other assignments of errors discussed by appellant were not prejudicial. No error appearing, the judgment is affirmed.
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.