712 SEWARD V. STATE. [228 SEWARD V. STATE. 4889 310 S. W. 2d 239 Opinion delivered February 17, 1958. [Rehearing denied March 17, 1958] 1. HOMICIDE—FIRST DEGREE MURDER—WEIGHT & SUFFICIENCY OF EVIDENCE.—Testimony surrounding appellant's killing of his brother held sufficient to sustain conviction for first degree murder. 2. CRIMINAL LAW—SELF DEFENSE—INSTRUCTION.—Requested instruction telling jury that one who is suddenly and viciously assaulted by another is not required to retreat, but may stand his ground and repel force with force, and if necessary to protect himself, may slay his assailant, held properly refused because it did not contain the words "murderous intent". 3. CRIMINAL LAW—SELF DEFENSE—INSTRUCTION.—D ef en dant's contention that instruction given by court on self defense did not give the defendant the full benefit of the plea of self defense and was argumentative, held without merit. 4. WITNESSES — ACCUSED, SCOPE & EXTENT OF CROSS-EXAMINATION OF. — Cross-examination of accused with respect to the death of his second wife and the homicide of Will Walker held proper cross-examin ati on. Appeal from Woodruff Circuit Court ; Elmo Tay-lor, Judge ; affirmed. William J. Dungan and John D. Thweatt, for appellant. Bruce Bennett, Atty. General and Thorp Thomas, Asst. Atty. General, for appellee.
ARK.] SEWARD V. STATE. 713 ED. F. MCFADDIN, Associate Justice. Charley Sew-ard killed his brother, James (Bud) Seward; and was convicted of first degree murder (§ 41-2205 Ark. Stats.) with sentence of life imprisonment. He brings this appeal. The motion for new trial contains fourteen assignments. AA T e have studied all of them, but discuss in detail only those most seriously urged by appellant's counsel. I. Sufficiency Of The Evidence. The defendant admitted the homicide and claimed self defense. On appeal, we view the evidence in the light most favorable to the verdict, as is our rule in cases like this one. Edding-ton v. State, 225 Ark. 929, 286 S. W. 2d 473 ; Allgood v. State, 206 Ark. 699, 177 S. W. 2d 928. It appears that the defendant, Charley, entered a room in which his brother, Bud, was in bed. The brothers engaged in a conversation which started out in a friendly manner, but developed into some dispute about Bud having interfered with Charley's rent collections and other matters. The conversation became acrimonious. An eye witness said that Bud never got out of bed, and that Charley shot Bud three times. Another brother, named Mike Seward, testified that a few days before the homicide, Charlie had told him that if Bud did not stay out of the way, Charley was going to hurt Bud. In short, there was sufficient evidence to establish a willful, deliberate, malicious, and premeditated killing, and to negative the claim of self defense. II. Instructions. As aforesaid, the defendant claimed self defense. He testified that Bud was in bed at the beginning of the conversation; but that Bud got out of bed and stabbed him with a knife, inflicting severe injuries ; and that Charley resisted as long as he could. Here is appellant's abstract of his testimony : ". . . Then he pushed me back to the chair. When I fell in the chair he had hold of me . . . I kicked off of him with my feet, he fell on the bed. He still had the knife. When I pushed him back to the bed he started getting up with the knife when I come up with the gun. I shot him because I thought he was corn-
714 SEWARD V. STATE. [228 ing : back to me with the knife I thought was bad cut. I was afraid. I was bleeding." Among other instructions, the defendant requested his Instruction No. 10 on self defense: - "You are instructed :that:one who is suddenly viciously: assaulted by another is not required to retreat, but may stand his ground and repel force with force, and if . necessary to protect himself, may slay his assailant, unless accused himself provoked the assanit." . • In refusing the instruction, the court said that the matter was covered. it: other instructions. The . Court's , statement was true:4w° snehinstructions were defendant's .Instruction No: 12 and the Court's Instruction .No. Fitrthermore, We also think'the defendant's Instluc-tion No 10 wa8 properly refOed'beeanSe It did licit ,nse the W6rdS `,` ' muiderous intent". - 'In. .Ca . 4Cnter v Seate, 62 Ark. 286; 36 S. W. 900, inStiee 'B'attle: used this .' Ian-, gu . age: ■ 1 • • ; • "; 4 . • • ;.: 4&But. -the-rule-is different where a man is assault-, ed with. a rmuiderous-interiti,' then 'under •no , ob-ligation- to retreat,....but .May: stand..-his ground, and i - if :need be, kill.his adversary."' (Italics:- our. own.) . . It wilE'be obServed that -die ' defendant's' ° Instruction' No. 10 was eVidently framed Tr6nr -anstice BATTI'S rlthi guage as above quoted, but failed t6 use the necessarily essential words; "murderous . intent"?.. The use of these words .has been- mentioned in some of our .cases: , Larue-v. St-ate, 64 Ark..144,41 S. W. 53 ; Bishop v. State, 7,3 Ark. 568, 84 S. W. 707;•and Garrett-v. State, 171 Ark. •297, 284- S. W. • 734: . - • The Court gaVe • , ; on its Own Motion, InstruCtion , No. S-7 . , which was correct.• It -reads . : • "You are inA'ructed that ho one' in resisting an Osaillt . made. upon him in the . course of a sudden brawl -or quarrel, or •upon a sudden encounter,- or . in:a. combat on a sudden quarrel, or from anger suddenly-aroused at
ARK.] SEWARD V. STATE; 715 the time• it is- hiade,•is justified in. taking:the life of the assailant, unless , :he is .so endanger ed, • by such assault as .to make it necessary to kill the assailant to save his ow . h life; dr to'preVent • 'a great boaily . 'injury, and he empldyed all the mean§ ih 'US pOwer; , cOnsistent with his 'safety, t6 'AVOid l . t , he 'Clanger and aVeri nedesSity of the killing.' The -. danger' mitst apPa ' rently be iiu • m : i- , nent . and actual,''and'h:e -milst . :e)thausl alr ,* .aii 'Within his power, consistent With 'hi's' safety, tO' 'Pro-tea' self, and , the -.killing 'must be: necessary.- to , : avoid the danger.: If, howe y er,q he assault : is:so, fierce as to . ,make it, .apparently, as; • dangerous for . him . to . retreat .as to stand,. it is not ditty to" retreat; but he may •stand his .ground, and,• if :necessarT to -save his' own life, or to, -prevent .great , bodily injury, slay . his :assailant." . . The defendant' h . a . ' s all the time inSisted that :the above inStrUct • iOn' d • id nbt give .the de • f e „ n dant the'full benefit of his 'plea Of se • lf defense beCause it gave the poSitiVe right 6f . Self defenSe Only in the:Iasi sentence', and then in an 'argumentative 'manner. .:Wo'firid no merit in defendant's contention.' • This . InstrUctiOn No: . 5-7 is identical with' the ohe . . apprOyed by this Court' in Smith v.' State, 194 Ark: 264, 106 5: W: 2d 1019. An examination' . Of . 'the transeript and briefs in • the cited caSe discloses that the . same objection againSt2 the instruction — i.e., that it was argumentatiV-ewas made • in the Smith. case, and the instruction, was, approyed even in spite of such objection. Cross-Examination Of Defendant.: The defendant became a witness in. his own behalf ; and ,on cross-examination th,e Trial Court—over the objections of the defendant—permitted , the, Prosecuting Attorney to interrogate the defendant concerning (a) the • death , of his second wife ; and (b . ) , the homicide of Will , Walker. The defendant stated that . his second wife died in 1953 ; that he and his wife were working in the field.; that an oil can exploded ; and that his wife was burned to death. The defendant's attorneys objected most strenuously to such line of questioning, saying, inter alia: "Mr. Thweatt Does he mean to make this jury-
716 SEWARD V. STATE. [228 believe this man did something wrong? That is not the proper way to do that." The Court ruled: "The objection is overruled at the present time . . . The Prosecuting Attorney will be permitted to ask the questions but he is informed now that he is bound by the answers of this witness because they are not matters covered on direct examination; and therefore he is bound by the answers." In regard to the homicide of Will Walker, the defendant stated that he killed Will Walker in a knife fight in St. Francis County, Arkansas in 1936. An additional objection was that the homicide in 1936 was too remote to have any bearing on the 1956 homicide for which defendant was then on trial. The Trial Court was correct in permitting the cross-examination of the defendant on both of the matters. The defendant voluntarily took the stand and became a witness. Willis v. State., 220 Ark. 965, 251 S. W. 2d 816. The questions as to defendant's previous conduct were asked him on cross-examination. There was no effort to show by any other person the previous conduct of the defendant. See DuVal . v. State, 171 Ark. 68, 283 S. W. 23. We have repeatedly held that when the defendant takes the witness stand the State may cross-examine him for the purpose of testing his credibility. In Hollingsworth v. State, 53 Ark. 387, 14 S. W. 41, we said: "It has always been held that, within reasonable limits, a witness may, on cross-examination, be very thoroughly sifted upon his character and antecedents. The court has a discretion as to how far propriety will allow this to be done in a given case, and will or should prevent any needless or wanton abuse of the power. But, within this discretion, we think a witness may be asked concerning all antecedents which are really significant, and which will explain his credibility." In Bevis v. State, 209 Ark. 624, 192 S. W. 2d 113, Justice FRANK G. SMITH, speaking for this Court, said:
ARK.] 717 "Over appellant's objection and exception, the court permitted the prosecuting attorney to ask appellant if he had not shot his first wife. A similar question was held proper in the case of Gaines v. State, 208 Ark. 293, 186 S. W. 2d 154. The testimony could, of course, be considered for the purpose only of affecting the credibility of the witness. He answered that he had not, and that answer concluded the inquiry. Had he answered that he had, he should have been permitted to explain, without elaboration, the circumstances, as for instance that the shooting was accidental, or to explain briefly the circumstances showing lack of criminality, and as the matter was collateral, his answer could not have been shown to be false. McAlister v. State, 99 Ark. 604, 139 S. W. 684. No attempt was made to do so." In DuVal v. State, 171 Ark. 68, 283 S. W. 23, we said the cross-examination of the defendant could relate to his conduct "regardless of time"; and in Pope V. State, 172 Ark. 61, 287 S. W. 747, the cross-examination of the defendant related—as here—to a previous stabbing incident. See also Trotter v. State, 215 Ark. 121, 219 S. W. 2d 636; and Montague v. State, 213 Ark. 575, 211 S. W. 2d 879. No error was committed by the Trial Court in a 11 o wing the cross-examination of the defendant in the case at bar. We have examined all the other assignments in the motion for new trial and find no error. 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.