{
  "id": 8723967,
  "name": "Charles BURGY v. STATE of Arkansas",
  "name_abbreviation": "Burgy v. State",
  "decision_date": "1974-06-03",
  "docket_number": "CR 74-9",
  "first_page": "677",
  "last_page": "681",
  "citations": [
    {
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      "cite": "256 Ark. 677"
    },
    {
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      "cite": "509 S.W.2d 820"
    }
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  "court": {
    "name_abbreviation": "Ark.",
    "id": 8808,
    "name": "Arkansas Supreme Court"
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      "category": "reporters:state",
      "reporter": "Ark.",
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      "reporter": "Ark.",
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    {
      "cite": "248 Ark. 1289",
      "category": "reporters:state",
      "reporter": "Ark.",
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    {
      "cite": "251 Ark. 1090",
      "category": "reporters:state",
      "reporter": "Ark.",
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  "last_updated": "2023-07-14T14:44:14.527021+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "Charles BURGY v. STATE of Arkansas"
    ],
    "opinions": [
      {
        "text": "JOHN A. Fogleman, Justice.\nCharles Burgy was a roomer in a rooming house of which John Nichols was the proprietor. On May 4, 1973, Nichols died as a result of a gunshot wound inflicted by Burgy on that date at a time when Nichols was at or near the doorway to Burgy\u2019s room. There were no eyewitnesses, other than Burgy, who claimed that the shooting was done in self-defense. Burgy\u2019s sole point for reversal is that the evidence was insufficient to sustain the verdict finding him guilty of second degree murder. We find that it was sufficient.\nOf course, the killing being admitted, the burden of proving justification was upon appellant, unless it was manifest from the evidence on behalf of the state that the crime amounted only to manslaughter or that appellant was justified in taking Nichols\u2019 life. Ark. Stat. Ann. \u00a7 41-2246 (Repl. 1964); see Leonard v. State, 251 Ark. 1090, 476 S.W. 2d 807; Bosnick v. State, 248 Ark. 1289, 455 S.W. 2d 688.\nOne of the elements of second degree murder which appellant argues cannot be found from the evidence is malice. Appellant recognizes that malice may be express or implied when no considerable provocation appears or when all of the circumstances of the killing manifest an abandoned and wicked disposition. See Ark. Stat. Ann. \u00a7\u00a7 41-2203, 2204 (Repl. 1964). In support of his theory, appellant relies upon the recognized principle that one\u2019s place of residence is his castle and the rule that one is justified in taking the life of another who manifestly attempts, in a violent or tumultous manner, to enter the former\u2019s habitation for the purpose of assaulting or doing personal violence to him. Ark. Stat. Ann. \u00a7\u00a7 41-2233, 2234 (Repl. 1964).\nOne of the witnesses who was in a bathroom in the house heard a knock on Burgy\u2019s door, about 20 feet away, and heard Nichols say, \u201cOpen the door,\u201d after which he heard Burgy ask \u201cWho is that?\u201d and Nichols responded \u201cThis is John Nichols, Mr. Charlie. Open that door.\u201d He testified that Burgy then said, \u201cI\u2019m not gonna open that door. You get on away from my door.\u201d and that Nichols received a negative answer to his question, \u201cYou ain\u2019t gonna open that door, Mr. Charlie?\u201d Then, said this witness, he heard Nichols say, \u201cWell, if you feel like that and you don\u2019t want me to open the door and don\u2019t want me to be here, well, you can just get ready . \" when he was interrupted by a gunshot. This witness then ran out of the bathroom and saw Nichols on the floor and Burgy in his room with the door open.\nAnother witness who was getting a drink of water in the kitchen nearby said when Nichols first knocked on the door, he asked Burgy for permission to look around the room, which was denied, and Burgy called Nichols a son-of-a-bitch in telling him to get away from the door. This witness said that just before he heard the gunshot he heard Nichols say \u201cIf that\u2019s the way you feel about it, Mr. Burgy, why you can just pack up.\u201d This witness then heard someone fall and walked out and saw Nichols on the floor. Neither of these witnesses heard anyone kick on the door to Burgy\u2019s room.\nAn employee of the Pulaski County Sheriff\u2019s office, who was downstairs in the building, went upstairs when he was told that someone had been shot. He said that he saw Nichols on the floor and Burgy sitting on the bed in his room. According to this witness, Burgy said \u201cYeah, I killed the son-of-a-bitch. He tried to kick my damn door down. You all get out of here. You ain\u2019t got no business in here no way,\u201d and reached for a shotgun on the floor. This witness said he then identified himself, told Burgy not to touch the gun and remained until the police came.\nThe arresting and investigating police officers also said Nichols\u2019 body was in the hallway. The chief medical examiner for the state testified that the fatal wound in Nichols\u2019 left chest was inflicted from a distance of two inches to three feet.\nThe only testimony that Nichols threatened Burgy or entered the room came from a statement made to police officers by Burgy himself. The jury might well have found from the evidence that no considerable provocation appeared, that the circumstances manifested an abandoned and wicked disposition on the part of appellant, that there was no attempt by Nichols to enter Burgy\u2019s room, either in a violent or tumultous manner or otherwise, or that Nichols had no purpose of assaulting or offering violence to Burgy. Any of such findings would have been sufficient basis for a verdict rejecting appellant\u2019s claim of self-defense and finding that the killing was with malice.\nIn Maples v. State, 225 Ark. 785, 286 S.W. 2d 15, quoting from other cases on this subject, we had this to say:\n\u201cBut it must be a \u2018manifest\u2019 attempt, and we take this to mean one so plainly made that no reasonable doubt will exist as to the purpose of the aggressor. At what point the effort to enter the house has begun, and how far it may be permitted to proceed with safety to the life or person of the individual assailed, must be determined by the circumstances of each case; and these are questions more of fact than of law.\u201d\n* * * *\n\u201c. . . it is not necessary that there should be actual danger, provided the defendant acts upon a reasonable apprehension of danger. But the court further said that it is the duty of the householder to prevent the entry by means not fatal, if he can do so consistently with his own safety. So it may be said that if the defendant kills where there are no reasonable grounds of apprehension of danger, it is manslaughter; and if the killing is done with malice, express or implied, it is murder. Even though the deceased is attempting at the time unlawfully to enter the defendant\u2019s dwelling house, if the killing is with malice and ill will, and not for self-protection or the protection of the house, it is murder.\u2018The law of self-defense, or the defense of one\u2019s domicile, does not require the giving to evil-minded persons an opportunity to take the life of another oh such easy terms.\u2019 \u201d\nIf the jury found that there were no circumstances of mitigation, justification or excuse at the time of the killing, the fact that it was done with a deadly weapon, such as the shotgun used by appellant is sufficient basis for a finding of implied malice. Erby v. State, 253 Ark. 603, 487 S.W. 2d 266; Lillard v. State, 236 Ark. 74, 365 S.W. 2d 144.\nSince the evidence was clearly sufficient to support the verdict, we affirm the judgment.",
        "type": "majority",
        "author": "JOHN A. Fogleman, Justice."
      }
    ],
    "attorneys": [
      "Harold L. Hall, Public Defender, by. John W. Achor, Chief Dep. Public Defender, for appellant.",
      "Jim Guy Tucker, Atty. Gen., by: Alston Jennings Jr., Asst. Atty. Gen., for appellee."
    ],
    "corrections": "",
    "head_matter": "Charles BURGY v. STATE of Arkansas\nCR 74-9\n509 S.W. 2d 820\nOpinion delivered June 3, 1974\nHarold L. Hall, Public Defender, by. John W. Achor, Chief Dep. Public Defender, for appellant.\nJim Guy Tucker, Atty. Gen., by: Alston Jennings Jr., Asst. Atty. Gen., for appellee."
  },
  "file_name": "0677-01",
  "first_page_order": 713,
  "last_page_order": 717
}