{ "id": 1727567, "name": "Montague v. State", "name_abbreviation": "Montague v. State", "decision_date": "1966-01-31", "docket_number": "5151", "first_page": "162", "last_page": "166", "citations": [ { "type": "official", "cite": "240 Ark. 162" }, { "type": "parallel", "cite": "398 S.W.2d 524" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "238 Ark. 398", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1734196 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/238/0398-01" ] }, { "cite": "254 Ala. 1", "category": "reporters:state", "reporter": "Ala.", "case_ids": [ 5190413 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ala/254/0001-01" ] }, { "cite": "239 Ark. 172", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1730672 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/239/0172-01" ] }, { "cite": "63 S. W. 2d 356", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10239384 ], "opinion_index": 0, "case_paths": [ "/sw2d/63/0356-01" ] }, { "cite": "69 Ark. 177", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8720839 ], "opinion_index": 0, "case_paths": [ "/ark/69/0177-01" ] }, { "cite": "222 Ark. 650", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1652844 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/222/0650-01" ] }, { "cite": "37 Ark. 433", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1870998 ], "opinion_index": 0, "case_paths": [ "/ark/37/0433-01" ] } ], "analysis": { "cardinality": 455, "char_count": 6838, "ocr_confidence": 0.478, "pagerank": { "raw": 5.516750269781549e-08, "percentile": 0.3446173888902403 }, "sha256": "e91200b94abbf6a2e32db83d056c87a599417a09bd67f3cd1b7e793fa0e7c683", "simhash": "1:35d57abd0835fb8d", "word_count": 1198 }, "last_updated": "2023-07-14T18:11:15.698686+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Harris, C. J., dissents." ], "parties": [ "Montague v. State" ], "opinions": [ { "text": "Frank Holt, Justice.\nThe appellant was charged by information with the crime of first degree murder by means of poisoning. In finding her guilty of this alleged offense, the jury rejected her plea of self-defense and assessed her punishment at life imprisonment in the State Penitentiary. From a judgment upon this verdict the appellant brings this appeal.\nFor reversal appellant contends, inter alia, that the court erred in instructing the jury that: \u201cAll murder which shall bo perpetrated by means of poison shall bo doomed murder in the first degree,\u201d and \u201cin failing to give instructions\u201d on the lesser offenses of homicide under the facts in this particular case.\nAppellant testified that on the night in question the deceased, an acquaintance, came to the door of her home with a gun and she was afraid not to admit him; that after he got into the house he started chasing her from one room to another with the gun, running it up aud down her back and telling her he was going to shoot her when he got ready; that he hit her with his fist and committed other acts of violence; that he made indecent and unnatural proposals to her and threatened to put sa]t \u201cin my privates and he did put some in there;\u201d that she kept \u201cstuff\u201d for rats since \u201cwe have lots of rats and mice and I keep something out all the time; \u2019 \u2019 that when he asked her to get him a drink of 'water she complied.\n\u201cQ. Did you pour him a drink of water?\nA. Yes, sir, I reached up on the cabinet and poured something in there, I don\u2019t know what it was.\nQ. What did you intend to do when you poured it in there ?\nA. When I poured it in there I was not thinking about doing no harm to anybody, I would have poured castor oil or anything in there, or turpentine or coal oil or anything.\nQ. What were you putting it in there for!\nA. I thought maybe it might calm him down, he was so mad.\u201d\nHe became ill and left in a taxi. The next day he died from the effects of the poison. The applicable statutes read:\n\"Murder is the unlawful killing of a human being, in the peace of the State, with malice aforethought, either express or implied.\u201d Ark. Stat. Ann. \u00a7'41-2201 (Repl. 1964).\n\"All murder which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of wilful, deliberate, malicious and premeditated killing, or which shall be committed in the perpetration of or in the attempt to perpetrate, arson, rape, robbery, burglary or larceny, shall be deemed murder in the first degree.\u201d Ark. Stat. Ann. \u00a7 41-2205.\nThe exact issue argued by appellant seems to be one of first impression in our state. However, we have construed these statutes previously in cases relating to murder by poison. In Allen v. State, 37 Ark. 433, we held that a person charged with murder in the first degree by poisoning may be convicted of a lower degree of criminal homicide. Again, in Smith v. State, 222 Ark. 650, 262 S. W. 2d 272, we approved the trial court instructing the jury on first and second degree murder in a poison ease and upheld a conviction for second degree murder. However, in each of those cases it was the defendant objecting to the giving of instructions on the lesser offenses contending, as does the State in the case at bar, that murder by poisoning is nothing less than first degree. We analyzed in detail the quoted statutes [\u00a7\u00a7 41-2201 and 41-2205] in Rayburn v. State, 69 Ark. 177, 63 S. W. 2d 356, where we said:\n\u201cAccording to these statutes two classes of murder constitute murder in the first degree, to-wit: (1) All murder committed by any hind of wilful, deliberate, malicious and premediated killing; and (2) all murder which shall be committed in the perpetration of, or in the attempt to perpetrate, arson, rape, robbery, burglary, or larceny * * * These two classes of murder in the first degree are separate and distinct. In the former a precedent intent to kill is necessary to constitute the offense, while in the latter it is not.\u201d [Emphasis added]\nSee, also, Walker v. State, 239 Ark. 172, 388 S. W. 2d 13.\nIn 26 Am. Jur., Homicide, \u00a7 15, p. 164, we find:\n\u201c * * * The facts, however, may be such in a particular case that a killing by poison will only be manslaughter, even though a statute provides that murder committed by means of poison shall constitute murder in the first degree.\u201d\nCertainly there are conceivable circumstances justifying and requiring that a jury be instructed as to a lower degree of homicide than first degree where death results from the use of poison. Houlton v. State, 254 Ala. 1, 48 So. 2d 7. As Chief Justice English said in Allen v. State, supra, in 1881 with regard to the statutes in question:\n\u201cUntil the Legislature shall think proper to enact that upon a charge for murder perpetrated by means of poison, etc., the jury must find the accused guilty of murder in the first degree, or acquit him, we know of no remedy except that of appropriate charges to the juries.\u201d\nThus, for more than three-quarters of a century our legislature has not deemed it proper to enact such a limitation.\nWe think the appellant presented sufficient evidence to require giving instructions to the jury on the lesser offenses of homicide.\nThe appellant also argues for reversal that the court erred in refusing to instruct the jury on the elements of felonious intent, wilfulness, and premeditation. It follows from our foregoing discussion that the appellant is correct. Furthermore, the information in the case at bar specifically alleged these elements, namely that appellant \u201c * * * did unlawfully and wilfully with deliberation, premeditation and malice aforethought poison and kill Marshall Hicks by administering to him poison in a glass of water served to the said Marshall Hicks with the intent to wilfully and maliciously kill\u201d him.\nThe appellant also asserts for reversal that when the court instructed the jury: \u201cMurder is the unlawful killing of a human being in the peace of the State, with malice aforethought, either express or implied\u201d [Ark. Stat. Ann. \u00a7 41-2201], it was error for the court to refuse to instruct the jury as to the meaning of \u201cexpress\u201d and \u201cimplied\u201d malice. We think this is a valid contention. These terms are defined by Ark. Stat. Ann. \u00a7\u00a7 41-2203-4. In Jordon v. State, 238 Ark. 398, 382 S. W. 2d 185, we said: \u201cNo instruction was given defining self-defense or justifiable homicide, though these terms are referred to in two or three other instructions.\u201d\nThe appellant asserts other reversible errors which we have carefully reviewed and find no merit in them.\nFor the reasons indicated the judgment is reversed and the cause remanded. Reversed and remanded.\nHarris, C. J., dissents.", "type": "majority", "author": "Frank Holt, Justice." } ], "attorneys": [ "Harold Sharpe, for appellant.", "Bruce Bennett, Attorney General, Wm. Powell Thompson, Asst. Atty. Gen., for appellee." ], "corrections": "", "head_matter": "Montague v. State\n5151\n398 S. W. 2d 524\nOpinion delivered January 31, 1966\nHarold Sharpe, for appellant.\nBruce Bennett, Attorney General, Wm. Powell Thompson, Asst. Atty. Gen., for appellee." }, "file_name": "0162-01", "first_page_order": 186, "last_page_order": 190 }