Martin v. State , 97 Ark. 212 ( 1911 )

Wood, J.,

(after stating the facts). The instruction assumes that, if appellant made an assault on Sherman Shores by striking him with a rock, this would be a felony. The instruction in this form ignores the testimony of appellant as follows: Sherman Shores “rode right up pretty close to me, got off his horse and made a step towards me with his knife in his hand, and I picked up a rock when he started towards me and hit him with the rock and ran.” It was a question for the jury as to whether the assault made by appellant on Sherman Shores was a felony. The court could not take that question from the jury, and say as matter of law that the assault of appellant on Sherman Shores, under the circumstances, was felonious. Yet that is what the court did when it told the jury that Will Shores had the right, after the assault was made upon Sherman Shores by appellant, “to pursue him (appellant) and use all reasonable means to prevent his escape,” i. e., to arrest the appellant. “A private person may make an arrest where he has reasonable grounds for believing that the person arrested has committed a felony.” Kirby’s Dig., § 2120. Unless appellant had made a felonious assault on Sherman Shores, Will Shores had no right to arrest him, and as we have stated it was a jury question, under the facts, as to whether the assault under the circumstances was felonious. The instruction in this respect was not a mere mistake in verbiage, but was an erroneous statement of a proposition of law that was misleading and prejudicial.

Again, the instruction assumes that Will Shores pursued appellant for the purpose of preventing his escape. It is doubtful whether the evidence warranted the court in submitting to the jury at all the question of whether or not Will Shores pursued appellant for the purpose of arresting him. But certainly, if there was any evidence that such was the purpose of Will Shores, there was also much evidence to warrant a finding that his purpose was not to arrest appellant, but to avenge what he considered the wrong to his brother. Therefore it was a question for the jury to say what was his purpose. To say, without any evidence to that effect, that Will Shores was pursuing appellant for the purpose of arresting him, and that he “would not be engaged in an unlawful act in so doing,” was tantamount to an assumption by the court that appellant had committed a felony in killing Will Shores, and its effect was to take away from appellant the right to have the jury consider his plea of .self-defense; and the evidence adduced by him in support thereof. The court could not indulge the presumption that the intention of Will Shores in pursuing appellant was innocent. For such a presumption would conflict with the presumption of innocence, which always and without limitations attends the accused through the whole case until overcome by proof. To presume the innocence of Will Shores was also to presume the guilt of appellant. Between conflicting presumptions, that which is in favor of the innocence of the accused prevails. Sharp v. Johnson, 22 Ark. 79; Holbrook v. State, 34 Ark. 517, 518.; McArthur v. State, 59 Ark. 431. See also Cash v. Cash, 67 Ark. 278.

While the court correctly charged the jury in other instructions as to’ the law of. self-defense, there was no instruction except the one under consideration on the question of the right of a .private person to arrest one who had committed a felony. We doubt whether an instruction on this question is applicable to the facts of this record. But, if so, then the law should be correctly declared. The instruction was calculated to mislead the jury, and was therefore prejudicial error, for which the judgment is reversed, and the cause remanded for new trial.

McCuuoch, C. J., dissenting.