ARK.] JONES V. STATE. 331 JONES V. STATE. Crim.• 3957 Opinion delivered September 30,1935. 1. HOMICIDE—INSTRUCTIONS AS .. To DEGREES OF MURDER.—Evidence , held to justify an instruction . in a prosecution for murder in the first degree as to both degrees of murder.. • 2: CRIMINAL LAW—ABSTRACT INSTRUCTION.—In* a murder prosecution a requested . instruction as to th' e burden of proof where circumstantial evidence alone is relied upon by the State was properly refused where the State did net rely upon circumstantial evidence alone for conviction: 3. CRIMINAL LAW—INSTRUCTION . AS TO coNFEskoN.-7 --An instruction, in a murder' prosecution 'that, before a Confession is Admissible, it must appear. to . have been voluntarily Made held properly
332 JONES V. STATE. [191 refused when it appears that accused not only made the confession voluntarily, but at the trial admitted the killfng and testified to all the facts contained in the confession. 4. CRIiIINAL LAW-EVIDENCE-FINDING OF Buumr.—Iii a murder prosecution, the admission of a bullet and of testimony that one week after the killing it was found where deceased's head rested when discovered, in connection with the introductfon of defendant's pistol and cartridges, held not error. Appeal from Madison Circuit Court ; J. S. Combs, Judge; affirmed. Dewey Glass,• W. N. Ivie and Charles W. hie, for appellant. Carl E. Bailey, Attorney General, and Guy E. Wil-liams, Assistant, for appe . lle . e. HUMPHREYS, J. Appellant, Silas Jones, was indicted in the circuit court of Madison County .for murder in the first degree for shooting and killing Earl Petree near the toWn of St. Paul in said county. He was tried in said court upon the charge on the 19th day _of 'April, 1935, which resulted in a conviction for manslaughter, and, as a punishment fOr the crime, was adjudged to serve a term of five years in the State penitentiary, from which iS this appeal. The first assignment of error argued for a reVersal of the judgment is that the court instructed the jury upon the law of murder in the first and second degrees without any substantial evidence upon which to base the instructions, and this instruction, being abstract, resulted in prejudice to appellant's rights. There is no merit in this contention. Appellant admitted the killing on the trial of the cause, and claimed that he had to in necessary self-defense. Appellant shot deceased through the body and head with a seven-shot .22 cal. pistol on the highway leading to St. Paul while deceased was hauling a load of .ties into town. Bad feeling existed between appellant and deceased. They had had several quarrels and altercations covering a period of several months prior to the killing. Some time in the morning before the killing early in the afternoon, appellant armed himself with the loaded pistol and went to St. Paul:as he stated for . the purpose of getting .some groceries for his uncle. He remained . in town
ARK.] JONES".12. STATE.. 333 until noon or a little after and during the .time refused to go swimming with some friends who requested him to do so, stating to them , he had some unfinished business to attend to. Near noon, he got his groceries . and put : them in John Burnett's wagon to take to bis uncle. Burnett stopped to water his team, and, while doing . so , appellant passed him saying he would walk on up the road. After. Burnett had driven a considerable distance, Appellant came back and met him and told bim he was compelled to kill a Man up theYoad. He did DA sy-whoin he'had killed or make any further explanation to Bninett. • Appellant turned and walked along . by the wagon as 'far As.. the hill or mountain but, before reaching the place where deceased was lying, he left the wagon-and road and hastily went up the hill into the woods. Burnett drove ori and did not stop to view the body. After . Burnett passed the body and had .driven tWo or three hundred yards, appellant came • off the mountain to the road and- got in •the wagon, and, after Burnett had driven about two:miles, they were :•overtaken by • officers and searched. The officers, reqnired them to , hold up their. hands during the sear* and, , when he . started to search appellant, he, ap-, pellant, admitted having a . .22 cal. pistol; saying .he •had shot ,the deceased with it, and . did not , intend to light the. law or anything._ William Langley . testified that .he was one-fourth of a mile south of where . the . killing occurred when the..shots, were fired, three in number, and, looking in that direction, saw a man run toward a team headed west and stop it. After• doing so, the , Man proceeded west until he .met a wagon going east bnt i turned and followed the wagon, and before , reaching . the scene of the , tragedy turned; up the mountain, and came..down the . mountain some two :or three hundred yards east and got in the wagon., Alvin Holiday testified that he was in a field about one-eighth of a mile from where the killing occurred, and tbat his attention- was attracted, by the _firing of thyee shots ; that he observed appellant stop a team that was headed west, and then . go on.himself toward St. Paul until he met a wagon going east ; that he turned and followed
334 JONES v. STATE. [191 the wagon for a few minutes, and then took up the hill through the woods. Certain witnesses were permitted, over the objection of appellant, .to testify that they made a search of the place where the deceased was shot a week after the occurrence and found a bullet which was produced buried a small distance in the ground where deceaSed's head rested after being shot. The ball that passed through appellant's head entered his forehead and came out through the back of. his head. Tbe record reflects that deceased was unarmed at the time he was shot. The testimony detailed above was sufficient from which a reasonable inference might be drawn that appellant killed deceased with malice aforethought, premeditation and deliberation, so the court was warranted in instructing the jury as to the law of murder in both the first and second degrees as well as manslaughter. The next assignment of error argued for a reversal of the judgment is that the court refused to give appellant's requested instruction relative to the character of circumstantial evidence necessary to warrant a conviction. The requested instruction is as follows " The court instructs the jury that circumstantial - evidence is legal evidence, and that one may be convicted upon circumstantial evidence as well as direct proof. Where the State relies upon circumstantial evidence alone for a conviction, as in this case, it is not enough that the circumstances point to, and are consistent with, the defendant's guilt ; but they must point to his guilt- in such a way that • they cannot reasonably be true in the ordinary nature of things, and the defendant be innocent." The instruction was incorrect and properly refused because the State did not rely upon circumstantial evidence alone for a conviction. The requested instruction was abstract in this particular, and the court did not err in refusing to give it.
ARK.] JONES V. STATE. 335 The next assignment of error argued for a reversal of the judgment is that the court erred in refusing to give his requeSted instruction No. 1 to the effect that, before a confession of one charged with crime is admissible in evidence against him, it must appear that it was voluntarily made without anybody holding out any hope of reward or leniency or fear of punishment for not doing so. Appellant not only made a confession when arrested that he killed the deceased, but in the trial admitted the killing and testified to all the facts relative thereto that were contained in his confession. The record reflects without dispute that the confession was voluntarily made. The court required the officer to whom the confession was made to state the same in its entirety before the testimony was closed, so there is no merit in appellant's argument that at first the court did not require the officer to testify to the confession in its entirety. The next and last assignment of error argued for a reversal of the judgment is that the court erred in the admission of testimony to the effect that one week after the killing a bullet was found in the ground where deceased's head rested when discovered after he was killed. Appellant's pistol with which he killed the deceased had been introduced in evidence in the condition it was when the officer took . it from him. The cartridges were removed from the pistol and also introduced in evidence.. It is argued that, because it was not positively shown that it was the bullet that had been fired from appellant 's pistol, it was improper to admit it in evidence. The place it was found, the kind and character of the bullet, and the pistol itself being present, made it possible for the jury by comparison to determine whether the bullet had been fired from appellant's pistol, and was competent testimony for that purpose. The mere fact that the bullet had been found a week after the killing did not render its introduction inadmissible. This fact was a circumstance for the jury to consider in weighing the evidence. The parties who found it testified to having done so, and the manner and kind of search they made for it. It became a question for the jury to say under
3-36- [191 these circumstances whether it had 'been fired by appellant through the head of -deceased or whether it had been . deposited .in the ground after the- killing by some interested party. No error appearing,• the judgment is affirmed. •
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