270 MAYBERRY V. STATE. [191 MAYBERRY V. STATE. Crim. 3949
Opinion delivered September 23, 1935: 1. HOMICIDE—MANSLAUGHTER—SUFFICIENCY OF !WIDEN cp.—Evidence held to sustain a verdict of manslaughter. 2. HOMICIDE—DYING DECLARATIONS.—The fact that deceased one day stated that he had been informed that he would not get well will not justify admission of a dying declaration made on a subsequent day unless he is shown to have been at that time under belief of impending death. 3. HomICIDE—INSTRUCTIONS AS TO SELF-DEFENSE.—In a murder prosecution, evidence held to call for the giving of instructions on self-defense. Appeal from Crawford Circuit Court ; J. 0. Kincan--non, Judge; reversed.
ARK.] MAYBERRY v. STATE. 271 Rains & RainS, for aPpellant.• Carl E. Bailey, Attorney General, and Guy Wil-liams; Assistant, for appellee. . JOHNS6T, C. J. Appellant was indicted by the grand jury.of Crawford County for tbe crime of second degree murder, committed by tbe shooting and killing of one jim Thompson. Upon a SUbsequent. trial he was convicted of manslaughter, and appeals to this conrt for • The first assignment of error relates to . the, alleged insufficiency of the testimony to support the judgment of conviction. Without discussing in detail the testimony adduced on behalf of the State, it was to the following effect : That On or about October 20, 1934,appellant, May-berry, waS assisting in -scavenger work for the town of Alma . , Arkansas,. and that abont dark of said . day appellant and other laborers proceeded to the dumping ground for the purpose of unloading their wagon. The deceased was hidden in a hole situated in the dumping grounds. When appellant• stopped his wagon for the purpose . Of Unloading a.Me;•deceised crawled Out 'of the hole where he was hidden, and appellant shot him with a shotgun. - From the effects of this wound the deceased lin(r ered a few days and died. This testimony was amply: sufLient to snpPort the verdict of the-jury, and this contention isWithout .merit. The second' aSsignmerit Of error relates to the admission of an alleged dying declaration of the deceased. This alleged dying declaration was admitted under the following teStimony as a predicate thereto. "He told the prosecuting attorney and I the day before he died tbat they bad informed ' him be would not ' * ' Q. Dia he make any statement as to whether he *as going to die'? A. Ite did the' time beforenext to the last time I was there.". Conceding withonf deciding 'that' this testimony established the fact that the deceased on the day before he made his alleged dying declaration had the belief that his dissolution was imminent-and impending, yet this was an insufficient predicate - to - admit a (bring declaration'
272 MAYBERRY V. STATE. [191 made on a subsequent date. TJnderhill's Criminal Evidence, fourth edition, page 383, states the applicable rule as . follows : " The burden is .on the one offering a dying declaration in evidence to show that such declaration was made under a . sense of death, but the burden does not rest on such party to show that the decedent was ratiOnal at the time such declaration was made. A predicate laid to admit a dying . declaration in evidence is not sufficient to introduce a dying declaration made on a later date unless declarant was then under belief of impehding dissolution." See also Weakley v. *State, 108 Ark. 1087, 273 S. W. .374. • From the authorities cited we conclude that no proper predicate was laid for the admission of the deceased's dying declaration, and that the trial court erred in admitting it in testimony. In view of another trial we, shall discuss certain instructions requested by appellant and refused by the trial court in his .charge to the jury. These requested. instructions read as :follows : • "2. The jury are instructed that, if ydu believe from the evidence In this case the deceased first attempted to assault defehdant with intent to kill or do him great bodily harm, the defendant 'was not bound to retreat, but might 'stand .his ground,, and, if need be, kill his assailant ; and, if he fired the shot believing this was the intention of his assailant, that he was justified in this, though you find from the evidence that the. danger was. merely apparent." • "3. The court instructs the jury . that a person attacked does not have to 'wait until the, party attacking has assaulted him, but if, acting as a reasonably prudent person, the defendant laelieved the said Thompson , was in the act of doing him great bodily harm or taking his life, he had the right to defend himself, though . you may believe, at the instant, the said Thompson was not in reach of him with his club." Appellant testified in his own behalf as follows : "My name is Earl Mayberry, I am now living at Muskogee. Last October I lived at Alma, and will be 50 . years old.
ARK.] MAYBERRY V. STAtE. 273 the 29th of this month.- I was acquainted with Thomp-son, I sold him •a mule and.,he . worked it out, and we bought a eowt ogether, and-w ‘ lien we, settled . up there was a dollar betWeen us, . pam him in innlasSes, and we were,picking cotton , for 'Logan , Gentry, I , went down in Corn to-get a drink; and 'Thompson-followed me' and said he NifBB 'going 10 stomp eveiy gut opt f iif ine,..and'he: was t; ,O ' o ' Much 'man : for ,Me, and I refUSed, tO, fight. .I quit. that night and. went -IIP . home -to •work.; and he quit, and was sneaking up. around there. On •the night -we had the trouble when we got • out -to the 'hole Thoicapson came eraWling mit' on his hands . and' knees with: h •:2 . .± 4 'in his hands. I ` thrdived my : gun On him and .told him , tO beat it three times. He made one siep and gOt straight and throwed .his's hand- tO his 'hip' and , "I shot- 'him: -, Ile had threatened my life and I was afraicl'ofliini,' he 'Whs-too much : man for me. That 'night before . " 0. ot to 'the 'hole, I• started between sundOWn and'dark,-and6Thompsori..was behind some:brush and had a club' about • so long: '." got about- as far from herelo roi -and he said, ' StOp ;'I am going to break yOur neck'. 1"haVe' been after yon-for.a montli.' e. Iisaid;: • `'Stop i or your' hide full 'of ‘. •: ",.: ; • • A:PPell'ant's2 testimony' qUOted above squarely' p'resented the isneS -,icovered : by' hik. 'requested instiltictions nunibered .. 2`'And 3; .. and ' they shOlild'haVe been 'given lb the jitry in charge by' the trial eourt....*e ' Cannot agree that the isSnes 'presented in tlieSe . 'i t eqUested iristructiOns, were fully covered by .the , court's • general charge... .If the testirhony 'On retrial is . Siibs'tantially' the . Sanie ae presented here bk . this reCOrd, - these or iU4ruetions of simi-- lat import should be : (riven in the . court'S 'charge.. . For . the error ,inagated,,the: judgment . is reyersed, and remanded :for new triab ,
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