Carter v. State , 108 Ark. 124 ( 1913 )

Wood, J.,

(after stating the facts). The indictment was sufficient. Jones v. State, 61 Ark. 88; Turner v. State, 61 Ark. 359; LaRue v. State, 64 Ark. 144; Green v. State, 71 Ark. 150; Harding v. State, 94 Ark. 65.

The court did not err in excluding the offered testimony of the conduct of Blue Jackson not in the presence of the appellant. It is neither alleged nor proved that Blue Jackson and deceased Woodfork were in a conspiracy to assault the appellant,0 and the testimony is not shown to have been connected in point of time so as to constitute a part of the res gestae. McElroy v. State, 100 Ark. 301-12. Any threats or other conduct of Blue Jackson towards appellant could not have been competent under appellant’s plea of self-defense, for it could have had no bearing on the question of whether or not the deceased was the aggressor. Jackson v. State, 103 Ark. 21, 145 S. W. 559.

Moreover, the appellant, after the court had announced that it would exclude the offered testimony, did not offer to show what Jackson did or said concerning him.

The testimony of the appellant to the effect that when he returned to the restaurant, Woodfork “kinder put his hands around here and turned,” in connection with the other testimony, in which the position of the deceased was demonstrated before the jury, was sufficient to call for a submission of the question to the jury as to who was the aggressor immediately before the fatal shot was fired. This testimony of appellant tended to show that the deceased, Woodfork, was the aggressor, and the offered testimony of the uncommunicated threats of Woodfork against appellant just prior to the fatal rencounter, and also the offered testimony as to the character of Woodfork for turbulence and violence,, was competent as tending to corroborate the testimony of the appellant on this point.

In Palmore v. State, 29 Ark. 248, we said: “Threats, as well as the character and conduct of the deceased, are admissible when these circumstances tend to explain or palliate the conduct of the accused. These are circumstantial facts which are a part of the res gestae whenever they are sufficiently connected with the acts and conduct of the parties, so as to east light on that darkest of all subjects, the motives of the human heart.” See also, Jackson v. State, supra; Long v. State, 76 Ark. 493.

It follows that the court erred in excluding the offered testimony as to the uncommunicated threats of Woodfork against the appellant, and also the offered testimony of witnesses as to the character of the deceased for turbulence or violence.

The court also erred in not giving appellant’s prayer for instruction No. 12. The uncontroverted evidence, however, of the hppellant himself shows that he was at least guilty of voluntary manslaughter. He armed himself and returned to the scene of the previous altercation when there was no necessity for doing so, and the conduct of the deceased, as shown by the appellant’s own testimony was not sufficient to justify or excuse the homicide. Even according to his own testimony, he acted without due care and circumspection, and that is no testimony to warrant a finding that the killing was done in self-defense. The proof was ample to have sustained a verdict of murder in the first degree, but under the testimony of appellant, the jury could have found him guilty of voluntary manslaughter.

Therefore, appellant was prejudiced in the refusal of the court to allow the offered testimony, and in refusing to give prayer No. 12 of appellant. All possible prejudice, however, from these errors, in our opinion, may' be removed by sentencing appellant for voluntary manslaughter, and if the Attorney Greneral so elects within fifteen days a judgment will be entered remanding the cause with directions to that effect, otherwise the judgment will be reversed and the cause remanded for a new trial.