Arnott v. State , 109 Ark. 378 ( 1913 )

Hart, J.,

(after stating the facts). It is first contended by counsel for defendant that the court erred in giving instruction No. 9 at the request of the State. It is as follows:

“If you find from the evidence in this case beyond a reasonable doubt that the defendant, Sam Arnott, while in a dispute with the deceased, by violent and insulting language provoked the deceased to slap him in the face, and you further believe beyond a reasonable doubt that at the time lie so used said language toward the deceased that he intended to provoke an assault to be made upon him by the deceased for the purpose of having an opportunity of shooting and killing deceased, and if you further find that when said language was used, the deceased slapped the defendant in the face and that he then drew his pistol and shot the deceased, then yon are told that the defendant is not entitled to any benefit under his plea of self-defense. ’ ’

Counsel for defendant claim that the instruction should not have been given because it eliminates and leaves out all of the difficulty between the parties immediately before the shooting occurred; but we can not agree with them in this contention. It is not practicable that a judge should attempt to so frame each paragraph of his charge to the jury as to make it cover all the elements of the evidence, and it is not necessary that he should do so. The instructions are to be read and construed as a whole and are entitled to a reasonable interpretation. It was the theory of the defendant that the deceased began the difficulty and was the aggressor; that the defendant tried to avoid the difficulty but was followed by the deceased, who struck defendant and knocked him down and began to choke and beat him, and that the defendant, in order to save his own life, shot the deceased. This theory of the case was fully presented to the jury in instructions given at the request of counsel for defendant. In the case of Ferguson v. State, 95 Ark. 428, the court held:

“One who has provoked an attack upon himself can not be excused for killing his assailant in order to save his own life or to prevent great bodily injury until he has in good faith withdrawn from the combat as far as he can and done all in his power to avoid the danger and avert the necessity of the killing.”

It can not be said that the instruction complained of is in violation of the principle of law just quoted because, just following it, the court read to the jury instruction No. 10, which is as follows:

“If you find from the evidence beyond a reasonable doubt that at the time the defendant first assaulted and shot the deceased with a pistol the deceased was making no hostile demonstrations toward the defendant which placed him in danger of losing his life or receiving great bodily harm at the hands of deceased, then you are told that the defendant is not justified in killing deceased, and it will he your duty to convict him. ’ ’

It will he noted that in these two instructions the court in effect told the jury that if defendant provoked an assault upon himself by the deceased for the purpose of having an opportunity of shooting and killing him, and the defendant, after deceased had slapped him, immediately drew his pistol and killed the deceased while the latter was making no hostile demonstration toward him, the defendant would not be justified in the killing. In other words, the two instructions in effect told the jury that the defendant could not provoke the deceased to strike him and then, without making any effort to abandon the difficulty, shoot the deceased while his own life was in no danger.

At the request of the State the court also gave instructions Nos. 13 and 14, which are as follows:

“No. 13. The court tells the jury that nowhere in these instructions does the court mean that you are to arbitrarily disregard the testimony given by any witness in this case. That is a matter solely with the jury, and it is not in the province of the court to tell the jury what weight should be given by you to the testimony of any witness. ’ ’

“No. 14. You are instructed that you are the sole judges of the weight of the evidence and the credibility of the witness, and, in passing upon the weight to be given to the'testimony of any witness, you may take into consideration his manner of testifying while on the witness stand, any bias or prejudice that may be shown, the reasonableness or unreasonableness of the statements of any witness, the interest of any witness in the result of the verdict, any conflicts or contradictions in the statements of any witness while testifying on the stand, as well as any conflicts or contradictions in the testimony of one witness with the testimony of other witnesses, and in applying these tests you will take into consideration your knowledge of men and affairs. ’ ’

It is .contended by counsel for defendant that instruction No. 14 is a charge upon the weight of the evidence ; hut we do not think so. Of course, it is well settled that the court may not instruct the jury as to the credit they should give to the witnesses; but the court may tell them that it will be their duty to reconcile any conflict which they may find in the testimony so as to give credit to the whole of it, but, if they can not, they may credit the whole or any part of a witness’ testimony accordingly as the testimony of such witness shall impress their minds as being true, and in determining the truth or falsity of a witness’ testimony they may consider it with reference to all the other testimony given in the case, and that, too, whether the other testimony is contradictory or not.

It is again contended by counsel for defendant that the court erred in refusing to give the instruction No. 5 asked by the defendant. We do not deem it necessary to set out this instruction. It is sufficient to say that the matters embraced in it were fully covered by other instructions given at the request of the defendant. We have examined the instructions carefully and think that the respective theories of the State and of the defendant were fully covered by the instructions given by the court, and, finding no prejudicial error in the record, the judgment will be affirmed.