4R.K.] SHEVPARD V. STATE.1 315; SHEPPARD V STATE Opinion delivered Odtbber 8, 1923 r •' .7"11+ 1. go MICIDE=INDICTMENT.—An indictment • of three persons „for. • . • ,muider which alleges that defendant did unlaWfully etc., *ill, and murder, etc., will be censtrned in ihtend ' tO allegh' thIA: , defendants did kill 'arid :murder. !' ! r 2.; s HOMICIDFr—SUFFICIENCY .OF INDICTMENT.—Ari indietinerit Of three' - persont,i alleging that they did kill, And murder,-etc. :,1 ‘_witli, !-'a-, pistol , inrthe hands of one of:them, is legally-,sufficient tosustaiif a conviction of the aCcU • sed. • I • •I I' '■; ; r ; 'tf! 3. HOMICIDE—SUFFICIENCY OF TESTIMONY.—Testimony held :insuffi-'cient- to sustain a conviction Of vohar . 5; Manslaiiihter: 4. , HomiciDE , --iNsTalicrrox: Where three persOns , . ' w 1 e .re i acc N u I k e 0-d - i o t v ■1 I, Murder, it iwas ,not errot Ao instruct the Jury'that tlieYiniightT xfind one oy . all of them guilty as'Alw evOPT I P e warrantodu , -)6 7i7 HomiciDE--INSTRUCTION-BURDEN OF. PROOF.--,It was not-érrOr,stor instruci the jury that, f`The killing being . proved„ the- burden,off proving circainstances of mitigation that justify or excuse', the boinicide Shall deVolve 'on' the accuSed' unless; by .prool'on 'the part of the State, it is sufficiently 'manifest tll'at '-thel'offense , amounted ,only, to manslaughter, or, that, the ,:accusedi , Or excuse'd in committing the .homicide. •iio,wever„ the, burden,on; Ail 1 0° ,; 7k. 111/.., ..7 the case rests upon the State to shoe the defendant guilty beycind a reasonable doubt." 1.1.1.1;140"1,,, _ • , ' 'r APpeal' froM Union ... u (ir l , f c , 'CI ,ourt;,.L.tcS71(vp,tt,, JUdge ;' reversed as , fo : Palmer; ,pffirr i aed ir as7 to, Sheppard.: Makoney, .Y o,cum, Soye and; J, „N. ,Says;,;(for,cappet=, lants,..., • ,)Ii :(f f:fik..111[09,1":1 ;' J. S., ,Utley, Attorney : peneral,„ and427;0.11,44, Assistant, for appellee. - HART, J. Johnson Palmer, J, Jimr .):Sheppard y reand/ JOhnnie Palmer were , ,jointly charged, w,ith;ftheitcrinicTofa murder by an_indictment the body of,whickisilastfôllows " the grand jury of Union , Q0.wity,,i-4 , ;thermam01 and9by the authority of the _State:of Arkansa's-,-,o 4 :, oath;iabcu.Sa.' the defendants, Johnson Palmer i . ..T4,1m:-ISh_eppard Zand7 Johnnie Palmer, of the crime of , raurderf in;first degrReg committed as follows, to-wit : $hesaid,defendant;lornthe.. 20th ,day of 11fardh, 1922, TeT,nion-,CountyorArkanSak) did 'unlawfully, wilfully, ,feloniously-and of' his ,malicex
316 SHEPPARD V. STATE. [160 aforethought, and after premeditation and deliberation, kill and murder one Roosevelt Kidd, a human being, by then and there shooting him, the said Roosevelt, with a certain pistol, which he the said Johnson Palmer then and there had and held in his hand, the said pistol being then and there loaded with gunpowder and leaden ball, with the wilful, felonious, malicious, premeditated •and deliberate intent then and there to kill and murder him, the said Roosevelt Kidd, against the peace and dignity of the State of Arkansas." The jury returned a verdict of not guilty against Johnson Palmer. Jim Sheppard was convicted of murder in the 'second degree and his punishment was fixed by the jury at 5 years in the State Penitentiary. John-nie Palmer was convicted of voluntary manslaughter and his punishment was fixed by the jury at two years in the State Penitentiary. Jim Sheppard and Johnnie Palmer have appeaied to this court. The first assignment of error relied upon for a reversal of the judgment is that the indictment is void for ambiguity. It is insisted that the indictment jointly accuses Johnson Palmer, Jim Sheppard and Johnnie Palmer of killing Roosevelt Kidd with a pistol in the hands of Johnson Palmer, and that this rendered the indictment too uncertain to be the basis of a charge of murder against Jim Sheppard and Johnnie Palmer. When the indictment is read as a whole, it is plain that the use of the words "defendant did unlawfully, etc., kill and murder one Roosevelt Kidd" is a clerical error, and that it was intended to use the word defendants. All of ,the defendants were joined in the same indictment and properly charged as principals in the first part of the indictment. Of course it is quite improbable that three persons, in the midst of a deadly conflict, could at the same time fire a certain pistol held in the hands of one of them, but, however improbable that such an occurrence may be, it cannot be said to be impossible. Our
ARK.] SHEPPARD V. STATE. 317 statute provides that no indictment is insufficient which does not tend to the prejudice of the substantial rights of the defendant on the merits. The indictment properly charged all the defendants jointly 6s principal offenders in the crime of murder. Therefore we hold that the indictment is legally sufficient to sustain the judgment of conviction. Evans v. State, 58 Ark. 47; Jackson v. State, ante, p 198; and Patrick v. State, 104 Ark. 255. In the latter case the court sustained an indictment charging James Patrick and H. J. Patrick with killing Sterling Rose by stabbing him with a certain knife held in the hands of said James Patrick and H. J. Patrick. In this connection we wish to call attention to the fact that it has been well said that the dignity of judicial proceedings requires that the forms employed in the administration of justice should not be incongruous or untruthful on their face, and that prosecuting attorneys should be careful to draw their indictments in plain and concise language so that a person •of common under- standing could readily know with what crime he is intended to be charged in the indictment. It is one thing, however, to say that an indictment is loosely drawn, and a quite different thing to say that it is not legally sufficient to support a judgment of conviction. The testimony was sufficient to warrant the conviction . of Jim Sheppard. On the part of the State, the testimony was that Johnson Palmer was the father of Johnnie Palmer and the father-in-law of Jim Sheppard. The killing took place at a negro dance in Union County, Arkansas, and all of the particijmnts and the witneSses are negroes. It appears that Jim Sheppard became angry because a negro named Hall was dancing with his wife, and made her stop dancing. Texas Kidd, a brother of Roosevelt Kidd, made objections to this. Soon afterwards several shots were fired, and Roosevelt Kidd was killed by a Shot fired - from a large pistol. Right after the killing, 'Jim
318. SHEPPARD V. STATE. [160 Sheppard, was- seen with a large pistol' in his .hand r and stated to: several.. persons present- that he i had..killed Roosevelt Kidd, and that was his .business, at the dance that ,.night . ,- • . . . . . • Jim• Sheppard denied having shot..Roosevelt Kidd,. and;introduced : witnesses to substantiate . his.,testithony.' The'.verdict,.;hoWever,' shows , that ., the jurY. belieVed Ahe', WanesSesi for the State,.. and the evidence-is legallY ,suffiff cient to support a verdict of mnrder ih■the ,SeCOnd degree. • • -' rWith tegard'to - the' case of Johnnie Paltrier, however, the e'Vidence iS hot So 'plain: , Jim Sheppardnivarried siSter of -Sohnnie Palmer. •When ShePpard Snatched wife' aVay from Hall, With'whom 'she WaS 'daneing; and took her off the floor; Halt 'asked'ShePpard• if he did' . not want him to ) -dafice ivith his 'wife... , .Te±as. ,Kidd, then' interfered,...and asked thera why they cOuldn't_alL dance without+ starting othethirig; Johnnie Palmer, and, ahothen. negro..grabbed,Texas ;Kidd and .pulled him: down in, a!, cOrner.i •In f nainute or two the shooting- startedi, and, RooseveltKidd.was killedkby .some • one. •.Jim,Sheppard-, alinosf immediately;afterwards , was Seen-With ( a) pistol in. his:lhands; and adraitteththaV he' had . killed ,RooSevelt Kidd. ,-;Thi's evidence, wheh•taken strongest pro-,' bative fOrce i .is not legally ,sufficient•tO show a.ebricerted,. plan between Jim: Sheppard andiJohnnie,Palmer to kill' either Roosevelt ior Teas,Kidd. ..The -row, Appears' to have been started suddenly, andthere is.not]ingto;show., that ,: Johnnie„F,ialmer in any , wise • participated in ; the killing . of ;Roosevelt : Kidd. In, this . connection , it may sbe'. stated . that,all,the witnesses testified , . that Johnson Palmerran :out of the roorn . as soon . as, the . ro,w startpct - Because the testimony:is not legally, . sufficient to, warrant' the jury,in finding that there was a 'cOnspiracy• Or 'injure RooSevelt Kidd; and because ,Aohnnie Palmer 'Wok ,no part Whatever in killing..him,..we -are off' the 'opinioh •that the testimony is not•legallY"sufficient cenVict hint The jury evidently thbught that the. testi, mony against him was.very weak, for it_ only.found
SHEPPARD V.' STATE. 319 guilty. of voluntary, manslaughter and:fixed. his punish-. ment at two years in the,State'Penitentiary. , It is . next:nrged, that the, court erxed iii givink instruction o. 2, -Which ,reads as ,follows::, !You are,. instructed that, if you , believe (from . . the> evidence in this•case, beyond • a , , reasOnable.,doubt, ',that the defendants, or, either of them, in Union. Ctrtinty; Arkansas, before the return of.thel indictmentlinto >court,: did unlawfully, wilfully, feloniously, of their malice aforethought, kill one Roosevelt Kidd- by shooting him with a Pistol, as alleged in the indictment, it will be your duty to find>the defendant, or either of them, ,guiltyq&miirder in the second degree, anddo, assess his or their punishment at imprisemnent , in :the , State . peniterWary for not less than fiVe years nor more ilian tWerity-one years." We : canna agree withithe'counSel fel' the defendants in-thfs'ebriterition: .As'We haVe already'ken, '0'6' defendant§ Were'jointly indicted : and charged ,WitilL-being_, cipal offenders in the killing of ,Roosevelt riThe
jury might return one or all >;3. $ f them guilty, l as 'the evi- denee'Warrafifed, Under • 'this in g til uction: , o Again it is insi§ted by counsel for the 11 .1 d c .p e .i f f e r nd .,‘ ants that the court erred in giVing InStinolion No. 7, which reads as follows You' ate ,instructedeth'afilihe3filling being"' proved,' the,' burden of'lprovinktAcir'enhirstaiie'OS of' mitigation: : that : justify or : lexcnsb o the heniidide:>§hall devolve on the accused, unless, by proof on the pak-Ot the: State,-it is' sufficiently Manifest f thitt : .) the =offense amounted to only manslanghter; . or, that >the taccused;was justified or excused 'in Committing -the''hemicide: 0116W--. ever, the burden on the case f rests'uNni the l State • to■ shOW! the defendant guilty beyond a' reasonable:doubt' No: specific objection, wa.S'i . inade 16:thisllinstriictidm The instruction follows ,the language ,of theAtatuter,:•and, as construed by this court;:.only; amountslto.lellinkAh& juryothat, if it found . that -the killing ;by. (the,defendant was proved, then the burden of :proof was, upon,,liikatb establish self-defense, 'unless the . evidence2for the, State: ,
320 [160 showed it. A number of cases supporting this view are cited in Wilson v. State, 126 Ark. 354. It results from the views expressed above that the judgment against Jim Sheppard should be affirmed, and • the judgment against Johnnie Palmer, because the evidence is not legally sufficient to support the verdict, should be reversed, and the cause as to him will be remanded for a new trial.
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.