526 DIXON V. STATE. [191 DIXON V. STA'I'E. Crirn. 3950 Opithon delivered October 21, 1935; 1. HOMICIDE—INSTRUCTIONS BASED ON STATUTES.In a murder case, instructions copied from or grounded upon statutes, applicable to the facts Of the case and amply . supported by testimony, held prOper. 2. CRIMINAL LAW—INSTRUCTIONS, ALREADY , GIVEN.—Requested instructions covered by other instructions given held properly refused. 3. CRIMINAL LAW—INSTRUCTION EMPHASIZING TEsTINIONY. -In a murder case an instruction that evidence that the prosecuting witness had lived with deceased as his wife might be considered as showing her bias, was properly refused since the instruction would give undue emphasis to the testimony of such witness. 4. HOMICIDE—SUFFICIENCY OF EVIDENCE.—A conviction of ' murder in the second degree, supported by sufficient evidence, will ;.not be
DixoN V. STATE. 527 reversed on' the ground that -the verdict Vms n6t responsive to either the State's or the defendant's theory of the •case. , .1 •• , APpeal from Pike Circuit COurt . ; A. Steel,' Judge ;
Affirmed. P. E.. Smith, for aPpellnnt. . . . Carl E. Bailey, Atterney General, ..atid -Guy. E. Wil-ASsistant, 'for 'appellee._ JoHNsoN, C. J. This is the second, .appearance .of this CaSe here, nnd those possessed of sufficient curiosity qre referred to . the statement of facts as they appear on former appeal. 189 Ark. 812, .75 S. W. (2d) 242. In reference. to• the. surrounding ,facts and circumstances of the killing, the testimony on , this appeal is . substantially the same, as that presented . on the former appeal, pad we there said Of it:: " There •was testimony corroborating and other testimony - contradicting •the testimony .given by Alberta; but it is unimportant to, .set . it out,. as . the ques-Aion , of, herryeracity .was .one for the jury, and .her mony aboye.recited . was, sufficient' to sustain not only the . verdict. retnrned, but would have , suppOrted a . convic-lion for the. highest,: degree of homicide." 189 Ark. 813, .75 S. AAT: • (2d) . 242. , The conyiction here .complained of was' for Murder in the second degree, aS was the.former conviction, but the punishment , was . reduced to . five years. .. • Appellant's primary contentions on .this appeal are of errors:which arise, out of instructions, requested,- given, or refused. For instance,: it is urged that the court erred in giying to the jury in charge. the :State's requested:instructions: numbered 6, 7 and. 8 as follows: , - "6. A bare . fear.of those • Offenses,- to prevent• Which the killing is alleged 'to have been committed, shall not be sufficient to justify the •killing.. .It must appear that : the circumstances were . sufficient ,to, excite the fearS • of a yeaSonable person,' and that the ..defendant ' really. acted under their:influence and • not .iii•the spirit .of .revenge." "7. Tbe killing being proved, the burden'of proVing the circunistances of Mitigation' which might juStify or excuse the hoMicide shall develop-on the defendant 'nn-lesS the proof On the part•of the Stateis sufficiently mani: fest that the' crime amounted only • to manSlaughter- or
528 DIXON V. STATE. [191 that the defendant was justified or excused in committing the homicide." "8. You are told that the law has such regard for the sanctity of human life that one person shall not kill another person, even in his necessary self-defense, except as a last resort, and when he has done allin his power, consistent with his own safety, to avoid the danger and avert the necessity of the killing: So in this case, although you may believe that the deceased was making a hostile demonstration against the defendant at the time of the killing, still, if you further believe from the evidence that the defendant could have reasonably avoided any danger to himself and averted the necessity for killing the deceased, it was his duty to have done so." Instruction number 6 is copied from § 2374 of Craw-ford & Moses' Digest ; number 7 is a literal copy of § 234 of Crawford & Moses' Digest ; and number .8 is grounded upon § 2375 of Crawford & Moses' Digest. Each of these instructions are applicable to the facts of this case, and are amply supported by testimony. Therefore the court did not err in giving them. Elder v. State, 69 Ark. 648, 65 S. W. 938 ; McPherso4t v. State, 29 Ark. 225 ; Palmore v. State, 29 Ark. 248 ; Thomas v. State, 85 Ark. 357, 108 S. W. 224. Appellant's next contention is that the court erred in refusing . to give to the *jury in charge his requested instruction number 2, as follows : "The theory of the State, and there has been evidence introduced, that the defendant came upon the deceased while he was stopped at a certain branch, and without provocation or previous trouble ran him up the hill and at the top of the hill after a short encounter of words shot and killed deceased. The burden is on the State to prove his case beyond a reasonable doubt, and if the evidence fails to satisfy your minds beyond a reasonable doubt of the guilt of the defendant, then it is your diity to give him the benefit Of such doubt and acquit him." The first paragraph of this instruction is merely a narrative of certain testimony introduced in the case and presents no question of law for judicial consideration. The second paragraph states a correct declaration of
ARK.] 529 law upon the theory of reasonable doubt, but this part of the instruction was fully covered in another instruction given by the court to the jury in charge. 'It • is also insisted that the court eyred in refusing ,appellant 7s requested instruction number 7, as follows : "Evidence has been offered , that the prosecutin o. witness, Elberta Furlow, had lived with deceased ash b is wife. _You may consider this evidence as 'showing her interest in the deceased or her bias against the 'defendant." This re: quested instruction' singles out the testimony of the witness, Elberta Furlow, and undertakes to giVe undue emphasis 'thereto. Such an instructiOn has : been emphatically condenmed by this court in the recent case of Morgan v. State, 189 Ark. 981, 76 S. W. (2d) 79. No error therefore is made to appear from this assignment. • ' Other instructions given in the court's charge are criticized by appellant, bUt • it would 'unduly extend this opinion to:here set them out or discuss them in detail. It suffices to say that we have carefully read•and considered all requested, refused and granted instructions, • and no error appears therein. Lastly, appellant contends that the verdict of the jury is not responsive tc y the . State's theory of this case nor to the appellant's , theory: This : contention has been urged upon this court many, many . times but we have' Uniformly held that, if the testimony is sufficient to support a higher degree of homicide 'than that for which the accused had been convicted, it Will not tie reversed on appeal. Arm-strong v. State, 171 'Ark. 1136, 287 S. W. 590. • • • The appellant has . had a fair and impartial trial, and the testimony is amply sufficient to sustain the jury's verdict, therefore 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.