{ "id": 8717855, "name": "Jim Harris v. State", "name_abbreviation": "Harris v. State", "decision_date": "1915-05-31", "docket_number": "", "first_page": "85", "last_page": "94", "citations": [ { "type": "official", "cite": "119 Ark. 85" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "100 Ark. 330", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1312275 ], "opinion_index": -1, "case_paths": [ "/ark/100/0330-01" ] }, { "cite": "98 Ark. 120", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "79 Ark. 460", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1495708 ], "opinion_index": -1, "case_paths": [ "/ark/79/0460-01" ] }, { "cite": "114 Ark. 398", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1536280 ], "opinion_index": -1, "case_paths": [ "/ark/114/0398-01" ] }, { "cite": "34 S. W. 262", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": -1 }, { "cite": "73 Ark. 315", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1504016 ], "opinion_index": -1, "case_paths": [ "/ark/73/0315-01" ] }, { "cite": "76 Ark. 615", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "29 Ark. 248", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1882893 ], "opinion_index": -1, "case_paths": [ "/ark/29/0248-01" ] }, { "cite": "70 Ark. 272", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1509538 ], "opinion_index": -1, "case_paths": [ "/ark/70/0272-01" ] }, { "cite": "82 Ark. 97", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1529115 ], "opinion_index": -1, "case_paths": [ "/ark/82/0097-01" ] }, { "cite": "21 L. R. A. (N. S.) 20", "category": "reporters:federal", "reporter": "L.R.A.N.S.", "opinion_index": -1 }, { "cite": "69 Ark. 189", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8720982 ], "opinion_index": -1, "case_paths": [ "/ark/69/0189-01" ] }, { "cite": "40 Ark. 511", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1897073 ], "opinion_index": -1, "case_paths": [ "/ark/40/0511-01" ] }, { "cite": "1 Tex. 159", "category": "reporters:state", "reporter": "Tex.", "opinion_index": -1 }, { "cite": "20 Tex. 522", "category": "reporters:state", "reporter": "Tex.", "case_ids": [ 2121380 ], "opinion_index": -1, "case_paths": [ "/tex/20/0522-01" ] }, { "cite": "71 Mo. 218", "category": "reporters:state", "reporter": "Mo.", "case_ids": [ 451516 ], "opinion_index": -1, "case_paths": [ "/mo/71/0218-01" ] }, { "cite": "6 Neb. 136", "category": "reporters:state", "reporter": "Neb.", "case_ids": [ 2875067 ], "opinion_index": -1, "case_paths": [ "/neb/6/0136-01" ] }, { "cite": "3 Kan. 450", "category": "reporters:state", "reporter": "Kan.", "case_ids": [ 65110 ], "opinion_index": -1, "case_paths": [ "/kan/3/0450-01" ] }, { "cite": "38 Ark. 221", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1900468 ], "opinion_index": -1, "case_paths": [ "/ark/38/0221-01" ] }, { "cite": "20 Ark. 250", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "35 Ark. 585", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1873874 ], "opinion_index": -1, "case_paths": [ "/ark/35/0585-01" ] }, { "cite": "56 Ark. 8", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1326150 ], "weight": 2, "pin_cites": [ { "page": "19" } ], "opinion_index": -1, "case_paths": [ "/ark/56/0008-01" ] }, { "cite": "11 Ark. 455", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8727849 ], "opinion_index": -1, "case_paths": [ "/ark/11/0455-01" ] }, { "cite": "24 S. E. 7", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": -1 }, { "cite": "118 N. C. 1145", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654669 ], "opinion_index": -1, "case_paths": [ "/nc/118/1145-01" ] }, { "cite": "73 Ark. 399", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1504021 ], "opinion_index": -1, "case_paths": [ "/ark/73/0399-01" ] }, { "cite": "88 Ark. 322", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1517144 ], "opinion_index": 0, "case_paths": [ "/ark/88/0322-01" ] }, { "cite": "84 Ark. 292", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1524368 ], "opinion_index": 0, "case_paths": [ "/ark/84/0292-01" ] }, { "cite": "56 Ark. 19", "category": "reporters:state", "reporter": "Ark.", "opinion_index": 0 }, { "cite": "36 Ark. 127", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1872457 ], "opinion_index": 0, "case_paths": [ "/ark/36/0127-01" ] }, { "cite": "92 Ark. 120", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1548593 ], "opinion_index": 0, "case_paths": [ "/ark/92/0120-01" ] }, { "cite": "68 Ark. 572", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1333892 ], "opinion_index": 0, "case_paths": [ "/ark/68/0572-01" ] }, { "cite": "60 Ark. 564", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1903742 ], "opinion_index": 0, "case_paths": [ "/ark/60/0564-01" ] }, { "cite": "51 Ark. 189", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8721466 ], "opinion_index": 0, "case_paths": [ "/ark/51/0189-01" ] }, { "cite": "100 Ark. 330", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1312275 ], "opinion_index": 0, "case_paths": [ "/ark/100/0330-01" ] }, { "cite": "73 Ark. 315", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1504016 ], "opinion_index": 0, "case_paths": [ "/ark/73/0315-01" ] }, { "cite": "70 Ark. 272", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1509538 ], "opinion_index": 0, "case_paths": [ "/ark/70/0272-01" ] }, { "cite": "82 Ark. 97", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1529115 ], "weight": 2, "pin_cites": [ { "page": "101" } ], "opinion_index": 0, "case_paths": [ "/ark/82/0097-01" ] }, { "cite": "11 Ark. 455", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8727849 ], "opinion_index": 0, "case_paths": [ "/ark/11/0455-01" ] } ], "analysis": { "cardinality": 819, "char_count": 20584, "ocr_confidence": 0.474, "pagerank": { "raw": 2.5280135072740083e-07, "percentile": 0.8121979312307397 }, "sha256": "a2482af342ffc285ae886f718d8802c9644327332e6b2f66627b40f42be95d25", "simhash": "1:a6a60ad21ca4571a", "word_count": 3673 }, "last_updated": "2023-07-14T18:54:55.060549+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Jim Harris v. State." ], "opinions": [ { "text": "Wood, J.,\n(after stating the facts). Giving the evidence its strongest probative force in favor of the finding of the jury, it is still not sufficient to sustain the verdict for murder in the first degree. The burden of proof was on the State.\nThere is no testimony tending to show that prior to the shooting the appellant harbored any malice or ill will toward John Daniels. The fact that John Daniels was at the home of the appellant, enjoying the hospitality which he had provided for his guests in the way of a dance and supper, or \u201cfestival,\u201d as the witnesses designate it, would warrant the inference that, up to the time when the dispute between them arose, the appellant and Daniels were friends. If the contrary was true, the burden was on the State to prove it, and it has not done so.\nNow, in the absence of premeditation and deliberation, the 'killing can not be murder in the first degree. Kirby\u2019s Digest, section 1766.\nAs early as Bivens v. State, 11 Ark. 455, 460 and 461, this court, through Mr. Justic\u00e9 Scott, speaking of the character of proof necessary to. establish murder in the first degree, said:\n\u201cIt is indispensable that the proof adduced shall be sufficient to satisfy the minds of the jury that the actual death of the party slain was the ultimate result sought by the concurring will, deliberation, malice 'and premeditation of the party accused. The distinctive feature of this particular class of cases of murder in the first degree being a wilful, deliberate, malicious and premeditated specific intention to take life. The inquiry then in cases of this class of murder in the first degree, must always be, was the killing wilful, deliberate, malicious and determined on before the act of killing. If it was, then that degree of malice has superinduced- the act that is necessary to make it rank in the highest grade of murder.\nIt is indispensable then in such cases that the' evidence should show that the killing with malice was preceded by a clearly formed design to kill \u2014 a clear intent to take life. It is not, however, indispensable that this premeditated design to kill should have existed in the mind of the slayer for any particular length of time before the killing. Premeditation has no definite legal limits, and therefore if the design to 'kill was but the conception of a moment, but was the result of deliberation and premeditation, reason being upon its throne, that is altogether sufficient, and it is only necessary that the premeditated intention to kill should have actually existed as a cause determinately fixed on before the act of killing was done, and was not brought 'about by provocation received at the time of the act, or so recently before as not to afford time for reflection. \u2019 \u2019\nThat these are essentials and must be proved in order to convict of the crime of murder in the first degree has since then repeatedly been held by this court, and there has been no change in the doctrine. See cases collated under note \u201cK,\u201d page 523, Kirby\u2019s Digest. See, also, Green v. State, 51 Ark. 189; Cannon v. State, 60 Ark. 564; King v. State, 68 Ark. 572-75; Howard v. State, 82 Ark. 97, 101; Ferguson v. State, 92 Ark. 120-124; Gilchrist v. State, 100 Ark. 330-37.\nApplying the above doctrine to the facts of this record, the uncontroverted evidence shows that the killing of Daniels by the appellant was the result of a provocation, growing out of what the witnesses describe as a \u201csquabbling\u201d in the house of appellant, and in which appellant thought that Daniels was engaged. The witnesses for the State show that appellant approached Daniels, and those of them who purport to relate all that took place, state that appellant asked Daniels \u201cWhat is the matter?\u201d or \u201cWhat is the trouble?\u201d and asked him to go out of the house, but Daniels refused to go, and used braggadocio in bandying words with appellant, showing that he did not intend to leave the room or to desist from his conduct, which appellant conceived was causing the disturbance.\nA majority of us have concluded that under these circumstances the killing could not have been murder in the first degree, according to the essential ingredients of that crime as defined by our statute and the many decisions of this court.\nTrue, appellant, by providing the dance and supper to which he had invited his guests, had in a measure thus thrown open the doors of his home to the public. Nevertheless, appellant was still the head of his house, the master of his home, .and, as such, was the conservator of the peace and quiet of that home. He had the right, and it was his duty, under the circumstances, toward those whom he had invited there, to see that good order was preserved; and he had a right to request and to demand of those who were engaged in the quarrel or disturbance to desist 'and to go out of his house, and, upon refusal, to use such force as might be necessary to enforce his demands.\nAs before stated, there was no evidence of any bad blood between appellant and Daniels before the fatal ren-counter. There was no evidence of any malice, threats or any previously formed design upon the part of the appellant before that time to do Daniels any harm. In the opinion of the majority, the killing was the result of the sudden quarrel, brought on in an effort by the appellant to preserve the peace of his home on the occasion of the \u201cfestival,\u201d and to remove Daniels, whose conduct had become objectionable to appellant, from the room.\nTrue, the provocation was not sufficient to justify the extreme measures to which appellant resorted, and it was not sufficient to reduce the killing from murder to manslaughter; but it was sufficient to reduce the homicide from murder in the first degree to that of second degree. Appellant acted hastily and in reckless disregard of human life. While there was no considerable provocation, and same was not apparently sufficient to arouse the passion of appellant and to make it irresistible, nevertheless there was some provocation. The uncontradicted proof shows, that the killing was done with a deadly weapon, and under circumstances from which the law would imply malice, ibut it was not done after that deliberation and premeditation essential to constitute murder in the first degree. See Howard v. State, 82 Ark. 97.\nAs -before expressed, the undisputed evidence, as we view it, shows that the killing was not the result of any previously formed design to kill, growing out of any grudge or ill will on the part of appellant toward Daniels; but was the result of the sudden quarrel or \u201csquabble,\u201d and there was an entire absence of such deliberation and premeditation as must be proved before one can be convicted of murder in the first degree. As was said in Harris v. State, 36 Ark. 127-33:\n\u201cA doulbt as to the degree of murder upon the facts of the case should be resolved upon a humane principle in favor of the accused.\u201d\nThis court has repeatedly held that where the evidence is not sufficient to sustain a verdict for murder in the first degree, but is sufficient to sustain a verdict for murder in the second degree, the cause, instead of being reversed and remanded for a new trial, may, with the consent of the Attorney General, be remanded with directions to sentence for mnrder in the second degree. Simpson v. State, 56 Ark. 19-20; Vance v. State, 70 Ark. 272-86; Darden v. State, 73 Ark. 315-21; Id. 80, Ark. 295-299; Howard v. State, supra; Pittman v. State, 84 Ark. 292; Warren v. State, 88 Ark. 322-24.\nThe judgment will therefore be reversed .and the cause remanded for a new trial, unless the Attorney General elects to have the appellant sentenced for murder in the second degree, in which event the trial court is directed to sentence appellant for that crime.", "type": "majority", "author": "Wood, J.," } ], "attorneys": [ "Allen II. Hamiter, for appellant.", "Wm. L. Moose, Attorney General, and Jno. P. Streepey, Assistant, for appellee." ], "corrections": "", "head_matter": "Jim Harris v. State.\nOpinion delivered May 31, 1915.\n1. 'Homicide \u2014 first decree murder. \u2014 In the absence of premeditation and deliberation, a killing can not be murder in the first degree, and the burden is on the 'State to establish the specific intent.\n2. Homicide \u2014 first degree murder \u2014 proof\u2014premeditation.\u2014To warrant a conviction of first degree murder, the evidence must show that the killing with malice was preceded by ia dearly formed design to kill, a clear intent to take life; the design to kill may, however,- be the 'Conception of a moment, and reason being upon its throne, it is only necessary that the premeditated intention to kill should have actually existed as a cause determinately fixed on before the act of killing was done, and was not brought about by [provocation received at the time of the act, or so recently before as not to afford time for reflection.\n3. Homicide \u2014 first degree murder \u2014 insufficiency of the evidence\u2014 preserving peace in home. \u2014 It appeared from the evidence that defendant had invited deceased to his house to a dinner and a dance, and that prior thereto there was no ill feeling between the two men; at the dance deceased created some disturbance. Held, defendant had the right to preserve the peace .and to enforce order in his own home, and that under the evidence, when defendant killed deceased in the furtherance of that purpose, and as the result of a sudden quarrel, that it will be held as a matter of law that defendant was not guilty of first degree murder.\n4. Homicide \u2014 murder\u2014conviction for too high a degree. \u2014 While the facts show that defendant killed deceased with a deadly weapon, and under circumstances from which the law will imply malice, he can not be convicted of first degree murder, where the act was not done after deliberation and premeditation essential to constitute murder in the first degree; and where defendant has been so convicted of \u00a1first degree murder, the judgment will be reversed and the cause remanded, unless the Attorney General will elect to have defendant .sentenced for murder in the \u00a1second degree.\n5. Homicide \u2014 conviction\u2014reversal\u2014sentence for lesser crime.\u2014 When the evidence is not sufficient to sustain a verdict for murder in the first degree, but is sufficient to sustain a verdict for murder in the second degree, the cause, -instead of feeing -reversed, and remanded for a new trial, may, with the consent of the Attorney General, fee remanded with directions to sentence for murder in the second degree.\nAppeal from Lafayette Circuit Court; George B. Haynie, Judge;\nreversed.\nSTATEMENT BY THE COURT.\nThe facts -are substantially as follows: The appellant is -a negro. On the 10th of February, 1915, there was at his house what the witnesses designate in the record as a festival, to which the negroes in-the neighborhood were invited, iand where they had a supper and dance. Along about 2 or 3 o \u2019clock in the .morning, as the witnesses say, there was a \u201cconsiderable fuss in the house.\u201d\nOne of the witnesses for the State, describing it, says: \u201cMr. Johnnie (referring to John Daniels, the deceased), said, \u2018This is Uncle Johnnie Daniels talking; now come and let\u2019s dance. \u2019 A woman told him not to call her name. He replied he was not scared of her.. Jim Harris (appellant) was standing in the middle of the door, and met the woman. He had his pistol in his hand and commenced to shoot and shot five times. Daniels fell iii the floor. He had nothing in his hand. \u2019 \u2019\nAnother witness stated that Daniels came to the festival late in the night, and there was a big crowd in the house.\nAnother describes the fuss as follows: \u201cThere was a squabble among some girls. John Daniels (the deceased) stepped on a girl\u2019s foot, and -told her to go ahead. She started toward Harris, who met her half-way. Harris come up to Daniels -and commenced to talk. He cussed and shoved and shot him. \u2019 \u2019\nAnother witness .stated that John Daniels, \u201cSpoke there to Mitchell Marlowe, .and they were squabbling, and he said there wasn\u2019t no use in that. At that time Jimmie (Harris) walked over and says, \u2018John, what\u2019s the matter?\u2019 and Johnnie says, \u2018Nothing; I just told these fellers about there was no use squabbling,\u2019 and he (John Daniels) \u00a1says, \u2018Mr. Daniels is around here. \u2019 Jim Harris says, \u2018Yes, and Mr. Jimmie is around here,\u2019 \u00a1and that time Jimmie said, \u2018John, you get out of here,\u2019 and Johnnie spoke and said, \u2018You give this festival and opened the doors for everybody to have a good time,\u2019 and Jimmie spoke up -and says, \u2018You get out of here; don\u2019t there\u2019ll he hell and a \u25a0whole lot of it,\u2019 and John spoke and said, \u2018Let it he hell and a whole lot of it,\u2019 and that time Jimmie commenced shooting. John Daniels, at the time of the shooting, had his right hand out \u00a1and his left hand in his pocket.\u201d\nAnother witness details the occurrence as follows: \u201cMr. Mitchell and Hue and Dude was in the comer. Mitchell -and Sue was fussing, and Mr. John walked up \u00a1and spoke to Mitchell \u00a1about fussing with \u00a1a little girl, and told him he ought to ibe ashamed to 'be fussing with her, and Mitchell talked about 'knocking her head off, and Mr. John told him he ought to be ashamed to'be talking about knocking a little girl\u2019s head off, \u00a1and that time Willie Taylor come over there in the corner, and what she said to Mr. Johnnie,-1 don\u2019t know, and he says, \u2018Go on, I am not talking to you,\u2019 and she went over to cousin Jimmie (Harris) \u00a1and cousin Jimmie (Harris) come over there and says, \u2018What is the trouble?\u2019 and Mr. John (Daniels) says, \u2018Nothing,\u2019-and cousin Jimmie (Harris) says, \u2018Go on out, and Mr. John (Daniels) had his \u00a1side to him and I just put my hand on his shoulder and told him to go on out; \u00a1and cousin Jimmie (Harris) says, \u2018Go on out, hurry, go out, there\u2019ll be hell and plenty of it,\u2019 and Mr. Johnnie (Daniels) says, \u2018Let it be hell,\u2019 and that time he shot him.\u201d This witness, on cross-examination, stated that John Daniels asked him for a knife to open some whiskey with.\nAnother witness stated that \u201cthey danced two sets while I was there, \u00a1and after that they \u00a1all got up in the corner, and that -was when the fuss commenced.\u201d This witness stated that he did not hear any cursing at all before the shooting commenced. He also stated that John Daniels told him .after he was shot that Harris shot him for nothing.\nAnother witness stated, \u2018 \u2018I don\u2019t know how it started, ibut when I knowed anything they was over there in the corner squabbling, and I heard somebody say there was going to be shooting, to get ont of here, there was going to ibe shooting, and I looked over there and they was standing np in the corner \u00absquabbling \u00aband cussing one another, and Mr. Jimmie shoved him and shot him twice, then stepped back \u00ababout three steps iand shot him three times more. I didn\u2019t see John (the deceased) with nothing. \u2019 \u2019\nWitnesses for the State testified that they did not see any pistol, and that John Daniels, the deceased, did not have a pistol.\nThe testimony by the appellant .and several witnesses in his behalf tended to show that he gave a supper and dance to the negroes on the night of the fatal rencounter, and that the deceased, John Daniels, just before he was killed, was creating a disturbance in the house, and that the appellant protested, asked him to desist and to get out of the house, whereupon he refused \u00aband attempted to shoot appellant, and thereupon appellant fired upon him and killed him.\n\u00abSeveral of the witnesses stated that John Daniels was cursing and that Harris told him that if he wanted to fight anybody to go out in the road and fight it out, that he didn\u2019t want iany fighting done in his house. A witness stated that John Daniels was cursing, ,and exclaimed that he was \u201cthe baddest son-of-a-bitch in the house.\u201d This witness also stated that he heard John say he \u201cwould kill him, Grod \u00abdamn him. \u201d\nOne of appellant\u2019s, witnesses described what took place as follows: \u201cHe (John Daniels) was walking around there in the house cussing \u00abamong them before they commenced fussing. He was dancing before he commenced fussing. After he quit dancing he commenced walking around the house cussing, with a pistol in his hand. When I saw him he was walking \u00abaround there in the floor with his pistol in his hand kinder down to his side, and when Mr. Jimmie Harris went to ask him to stop cussing, and if lie wanted to fight to go out doors, John spoke 'and said he was a. 'God damned man; couldn\u2019t nobody make him do nothing, and he throwed his hand toward Mr. Jimmie Harris and Mr. Jimmie knocked his hand hack and commenced shooting. \u2019 \u2019\nAppellant testified in his own behalf that deceased and a whole crowd of people came to the supper and dance. \u2018 \u2018 About an hour after they started to dancing, two women got to' scrapping around there, and I told them to hush, or they would have to get out of the house, and the women hushed and went on dancing; and they come to the bar and commenced drinking, and about fifteen or twenty minutes afterward they all got over in the corner, and John Daniels commenced cursing over there, and I went over there and asked him what the. matter was, and he said \u2018God damn it, they have been raising hell all night,\u2019 and he was the baddest man in the house, and he was going to do some fighting, and I says, \u2018No, John, don\u2019t fight; I give this supper for the people to have a good time, \u2019 and I told him if he wanted to fight to go outdoors, \u25a0and when I told him that he run right out of the corner with a pistol in his hand, and it scared me, and I commenced backing away from him and jerked my pistol out so he could see it; thought maybe that would keep him off of me, and he commenced .cursing me, and .says, \u2018God damn you, I will kill you before I get out of here; and he commenced coming up on me, and I shoved him 'back, and he come up on me again .and grabbed me, and I shoved him ibaok and commenced shooting. I was scared he was going to shoot me, and I shot him to keep him from shooting me.\u201d\nThe court gave instructions on the law concerning the different degrees of homicide and self-defense. No objection is urged to .any instruction except No. 10, given \u25a0at the instance of the .State, which is as follows:\n\u201c10. If you believe from the evidence in this case that the defendant, armed with a deadly weapon, sought the deceased with a felonious intent to kill him, or sought or brought on, or voluntarily entered into the difficulty with the deceased -with the felonious intent to take his life, then the defendant can not invoke the law of self-defense, no matter how imminent the peril in which he found himself placed.\u201d\nThe jury returned a verdict finding appellant guilty of murder in the first degree, and from the judgment of the court sentencing him to he electrocuted he prosecutes this appeal.\nAllen II. Hamiter, for appellant.\n1. The facts and circumstances testified to iby the witnesses did not justify the giving of instruction 10. They show that appellant, as host to the persons invited to his house, was acting, not in ran unfriendly manner toward the deceased, hut in accordance with his rights and his duty toward his guests in trying to preserve the peace. No malice, deliberation or premeditation is shown, and this instruction excluded appellant\u2019s plea of self-defense. 73 Ark. 399.\n2. The evidence does not sustain a conviction either of murder in the first degree or murder in the second degree, because it is not sufficient to show premeditation, nor deliberation nor malice aforethought. Wharton on Homicide, 167; 118 N. C. 1145; 24 S. E. 7'22; 11 Ark. 455; 56 Ark. 8; 35 Ark. 585; 20 Ark. 250; 38 Ark. 221; 3 Kan. 450; 6 Neb. 136; 71 Mo. 218; 20 Tex. 522; 1 Tex. 159; 40 Ark. 511; Anderson\u2019s Diet. 334; Block\u2019s Diet. 348; 2 Bou-vier Diet. 363-4.\n3. Where the evidence is not sufficient to sustain a conviction for the degree of murder found by the jury, this court has often exercised the right to reverse and remand the case for new trial, or, at the election of the State, with directions to enter judgment for a lesser degree of murder. That principle ought to apply here. 69 Ark. 189; 21 L. R. A. (N. S.) 20, and note; 82 Ark. 97; 56 Ark. 8,19; 70 Ark. 272; 29 Ark. 248; 76 Ark. 615; 73 Ark. 315; 34 S. W. 262.\nWm. L. Moose, Attorney General, and Jno. P. Streepey, Assistant, for appellee.\n1. Instruction 10 was free of the argumentative feature condemned by this court in the Price case, 114 Ark. 398, and with that feature eliminated it was a proper instruction in this case, under the evidence. We \u00a1believe the evidence is ample to sustain a finding by the jury that appellant voluntarily sought out the deceased for the purpose of bringing on the difficulty.\n2. There was premeditation, deliberation and malice aforethought shown, and the verdict is sustained by the evidence. 79 Ark. 460; 98 Ark. 120; 100 Ark. 330." }, "file_name": "0085-01", "first_page_order": 109, "last_page_order": 118 }