304 LINK V. STATE. [191 LINK V. STATE. Crim. 3960
Opinion delivered September 30, 1935. 1. HOMICIDE—EVIDENCE—Evidence held to sustain a conviction of manslaughter. 2. CRIMINAL LAW—CONFLICTING EVIDENCE—The Supreme Court would not interfere with a verdict of conviction on conflicting evidence. 3. HomICIDE—coNvIcTioN OF MAN SLAUGHTER.—On conviction of manslaughter, the jury is not required to find the degree of man-
ARK.] LINK V. STATE. 305 sldughter ; it is only necessary that the court should haye a certain guide to the intention of the jury. 4. CRIMINAL LAW—CONSTRUCTION OF VERDICT.—Verdicts are given a reasonable construction in order to reach the jury's intention which is enforced as though expressed. 5. HOMICIDE—CONVICTION OF MANSLAUGHTER.—A verdict which recited that the jury found defendant "guilty of manslaughter" will support a sentence.of voluntary manslaughter, where, from the evidence, the conclusion is irresistible that the jury intended a conviction of that offense. Appeal from Phillips .Circuit Court; W. D. Davenport, Judge ; affirmed. Joh/n C. Sheffield, for appellant. Carl E. Bailey, , • Attorney General, and Guy E; Wil-liams, Assistant, for appellee. JOHNSON, C. J. 'Appellant was indicted by the grand jury of Phillips County for the crime of murder in the first degree committed by the shooting and killing of one Dr. Miller, and from a manslaughter conviction upon which a five-year sentence was imposed he appeals to this court. The State relied for a conviction upon the dying declaration of deceased, Corroborated by confessions and voluntary statements of 'apPellant to the sheriff of Phil-lips County. The dying declaration of the deceased was to the following effect "I, Dr. W. F. Miller, after having been told by Dr. J. B. Ellis that I am going to die and realizing that I am going to die, I make and publish this statement as my dying statement. • "Last night a Woinan that was in a family way walked by and Mr. R. B. Link made an insulting remark about the lady, and that started an argument. Mr. Link and I live at the same hotel. The shooting took place this morning-in the hall of the Kendall Hotel 'at Marvell. I walked by the door of Link's roomand Link walked out and shot me. I had no weapon. I was 'unprepared for any fight. Mr. Link said•nothing before he .shot me with a pistol. I know of no reason why he• would shoot me. I never threatened Mr. Link. He shot me with an automatic pistol. He fired only one shot. I make this statement as my dying statement in the presence of a W.
306 LINK V. STATE: [191 Straub, F. F. Kitchens, Dr. J. B. Ellis, Mrs. 0. M. Broods on this, the 30th day of March, 1935. . "Dr. W. F. Miller." Mr. Kitchens, the sheriff of Phillips County, testified that he discuSsed . the killin o - with appellant the day the crime was committed, aid appellant told him that he shot Dr. Miller because he had been Worrying him for some time, etc. Appellant's first contention for yeversal is that the testimOny on behalf of the State was insufficient' as a matter of law to support a verdict of manslaughter. The testimony above set out is amply sufficient, if believed by the jury, to support the verdict of . manslaughter, and this suffices to dispose of aPpellant's first contention. The mere .f . act that • the dying , declaration . of deceased was Contradicted by ,other testimony 'affords no reason for us to interfere -With the jury's verdict, as this presents only a conflict in the .testimony which .has been settled adversely to appellant's . contention. Blevins..v. State, 182 Ark. 109, 30 S. W. (2d) 851 ; Arnett v. State, 188 Ark. 1106, 70 S. W. (2d), • . . • • Appellant nextur cr es that the jury's Verdict, to-wit : "We, the jury, find the ' defendant guilty . of manslaughter, the penalty to be .fixed by the court.• .[ Signed] G. H. Vineyard, Foreman i ;". is insufficient in law to support the consequent- judgment entered thereon for voluntary manSlaughter. . • , 7 . This exact contention 'was ;. urged befOre this court in Fag,0 v. State, 50 Ark. 506, , 8 W. 829;and we there disposed of the contention by saying: "The :verdict, did not designate . the degree of manslaughter,. or assess- the punishment: The duty of fixing the penalty, devolved therefore upon the court. Mansf. Dig., § 2308. On conviction of. murder the statute requires the degree of the offense to be found by . the jury. Mansf. Dig., § 2284 ; Thompson v. State, 26 Ark. 323 ; Ford- y. ,State, 34 -Id. 602. It is mot so as to manslaughter. It is only necessary that the court should .have a certain guide to the intention of the jury. Verdicts receive a reasonable con-struction- in order to xeach the jury 's meaning, and, when
307' that is found, they are enforced as though the 'intention was expresS. Strawn v. State, 14 Ark. 549. Viewing the verdict in this case in the light . of the evidence arid the court's charge, the conclusion is reasonable, if not irresistible,. that the jury intended a. conviction of voluntary manslaughter. • The court had . charged them: specifically UpOn that offense, .arid had made' no mention of involtintary Manslaughter . . If they kneW there Was Such a grade of homicide, it is not probable that they understood that the defendant ' could be convicted of it in this prosecution.. A verdict of involuntary manslanghter would have been inappropriate to the evidence, and the jury wonld haVe been . ninnindful of their duty . tO .have returned such a verdict. In...the absence of an :expression to the contrary, a presumption of an intention to violate duty' is not indulged against a juror More :than any other officer. The • evidence certainly 'Warranted a verdict of murder in the . firSt . degree. ;'. that the jury' did not intend to acquit is shown by :the yerdici. If 'it be conceded that th e . Verdict ought ‘nOt-propek . ly to 'have' been'for, voluntary man g laughter, that affords no' reason for indnlging the' preSumptiOn' that the jnry intended a • greater wrong. than . 'they 'have" ekpressed." Viewing The veidict in *the''likht Of the 'testimony heretofore set 'Ott, the_ conclusi6nis irresistible that the jury intended' a conVikion' Of -volnntary manslaughter. It 'is unfortunate that" a"Mah' of appellant's . age; namely 85 years, is required'to serVe a term in the State • pehitentiary . as refribUtion for ii crinie against the laws of the State, but suChis the • status ; of' this . reCord, and we have no alternative' in the matter. No 'error appearing, the • judgnient iS'affitine : d : , '
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