Palmore v. State

by the Arkansas Supreme Court

Supreme Court of Arkansas

29 Ark. 248

PALMORE  v.  THE STATE

Appeal from Phillips Criminal Court

1.CONSTITUTIONAL LAW: The right of objecting to the qualification of grand jurors.

The provisions of sec. 1978, Gantt's Dig., prohibiting exceptions to the rulings of inferior courts, in refusing to set aside an indictment for a defect in the formation of the grand jury, is unconstitutional. The legislature may prescribe the time and manner of determining objections to the qualifications of jurors, but it cannot take away the right of objecting.

2.GRAND JURORS: Qualification of.

It was not necessary, under the provisions of sec. 3654, Gantt's Dig, that grand jurors should be householders or freeholders.

3.CRIMINAL PRACTICE: Form of oath for petit jury.

The oath prescribed for the petit jury by sec. 219, Crim. Code, is not in violation of the constitution; it in effect requires the jury to try the case according to the law and the evidence.

4.—Irregular and improper conduct of petit jury.

During the deliberations of the petit jury, in a trial for murder, they should not be permitted to separate, or to indulge in the use of liquor, or to read a newspaper containing improper comments on the trial of the case before them, nor should the defendant or his counsel be called on to consent to such irregularities, as a refusal might incense the jury; but where the court below, with a knowledge of the facts and circumstances, and of the habits and character of the jurors, refuses to set the verdict aside on account of such irregularities, this court will not do it.

5.—EVIDENCE: When threats, and the character of the deceased admissible.

Threats, and the character of the deceased are admissible, when they tend to explain or palliate the conduct of the accused. They are circumstantial facts, and a part of the res gestae when so connected with the conduct of the parties as to explain their motives.

6.CRIMINAL LAW: INSTRUCTIONS: As to what constitutes the crime of murder.

It is not the intention to use a deadly weapon, but the intention to kill, of which the use of the weapon is evidence, that constitutes the crime of murder; and this distinction should be made clear to the jury in the instruction on this point.

7.—Same.

The court should define to the jury the difference in the degrees of homicide; but the failure to do so will not be ground for reversal where the court read from the statute the defintion of the different degrees of murder.

8.—Same.

An instruction, that where a deliberate purpose to kill, or do great bodily harm, on the part of the defendant, appeared, followed by an unlawful killing, the provocation which immediately preceded must not be considered, unless the defendant showed that the purpose was abandoned before the killing; should be accompanied by an explanation of the degrees of homicide, and so guarded as to allow the jury to infer the abandonment of the purpose to kill, from the circumstances of the homicide.

9.—Same. When obscure.

Where an instruction is vague and obscure, but not misleading, this court will not hold it erroneous.

10.—Malicious killing.

A malicious killing is not necessarily murder in the first degree; it must also be wilful, deliberate and premeditated, or committed in the attempt to commit some one of the felonies described in the statute.

11.—Reasonable doubt defined and explained.

By a reasonable doubt it is not intended to exclude every mere possible doubt. Where the jury, after consideration and comparison of all the evidence, are satisfied to a moral certainty, of the truth of the charge, they may convict.

12.—Self defense.

To excuse homicide, it must appear that the danger is not only impending but so pressing and urgent as to render the killing necessary; and that the slayer really acted under the influence of such fears as a reasonable person might entertain, and not in a spirit of revenge. The circumstances of the rencontre, the situation of the parties at the time, their threats and their relative strength, should be considered by the jury.

13.—Same. Instruction upon.

An instruction, that if the deceased by his manner and words manifested an intent, coupled with acts, to kill or inflict bodily harm upon the defendant, and immediately sought to carry the purpose into effect, the defendant, if in the reasonable fear of such consequences, was justified in taking life: Held, too general and unqualified.

14.INSTRUCTIONS: How tested.

In testing an instruction, every deduction that the jury might have made from the evidence is to be taken as having been proven.

15.EVIDENCE: Burden of proof, instruction, etc.

Where the killing is proved, the burden of proving circumstances that justify or excuse the homicide devolves upon the accused, unless they are developed by the proof on the part of the state, or it is manifest that the offense only amounted to manslaughter. An instruction to this effect, however, should be accompanied by a definition of the degrees of homicide.

16.INSTRUCTION: When it need not be in writing.

The reading of a section of the digest to the jury, as an instruction, is a sufficient compliance with the law requiring it to be in writing.

17.CRIMINAL PRACTICE: What papers should be excluded from the jury.

The jury should not be permitted to take with them, when they retire, papers containing statements bearing on the case, which were not read in evidence. But where the paper taken is the appellant's motion for continuance, containing a statement of the facts he expects to prove, it cannot be prejudicial to him.

APPEAL from Phillips Criminal Court.

Hon. CHARLES C. WATERS, Judge.

T. B. Hanley and Palmer & Sanders, for appellant.

S. P. Hughes, Attorney General, contra.

[Opinion of the court by Special Justice WILLIAMS.]