During the February term, 1904, of the Lonoke Circuit Court, an indictment for murder in the first degree was found by the grand jury against J. W. Darden, charging him with unlawfully, feloniously, with malice aforethought, with deliberation and “meditation,” killing and murdering J. H. Harvey, in Lonoke County, in this State, on the 19th of October, 1903, by shooting him with a gun loaded with bullets. The venue was changed to the Southern District of the county of Prairie, where he was arraigned, pleaded not guilty, was tried, convicted of murder in the second degree, and condemned to be imprisoned eight years in the penitentiary; and he appealed.
On the day of the killing Harvey abused and insulted Darden by using insulting language and by pointing his pistol in his face. A few hours after this Darden armed himself and went to the road and stood where he knew Harvey would soon pass, hauling cotton to a gin not far distant. In a short time Harvey came in sight, riding on a wagon loaded with cotton, and driving the team. Four shots were fired. One or more witnesses testified that the first was fired by Harvey in the direction of Darden. The other three were fired by Darden at Harvey, one of them hitting and killing him. In a trial of Darden before a jury three witnesses testified, over the objections of the defendant, that four or-five days after the killing a hole in a hub of one of the wheels of the wagon on which the deceased was killed was discovered, and that it had the appearance of having been made by a bullet fired from a gun. No one knew when or where the hole was made. Its origin was unknown. Other evidence was adduced in the trial in behalf of both parties tending to prove the foregoing and other facts.
During the progress of the trial the court took a short recess, and, when it convened, counsel for the State and for the defendant announced that they were ready to proceed. A witness in behalf of the State, Mrs. Carrie Simmons, was then examined in chief, and about the time defendant’s counsel, Joe T. Robinson, began her cross-examination the defendant and his counsel, T. C. Trimble, came into the court room. They had been out on the porch attached to the court room, a few feet away and in hearing. Defendant voluntarily absented himself, being on bail.- Neither he nor his counsel asked that the witness be re-examined. All were present at her cross-examination by Mr. Robinson, who was present during her examination in chief, and all were present during her redirect examination.
The court, over the objections of the defendant, instructed the jury, in part, as follows: “If the jury believe from the evidence and circumstances, beyond a reasonable doubt, that defendant unlawfully'killed James Harvey with a deadly weapon, the law presumes that such killing was done with malice.”
The court on its own motion instructed the jury, in part, as follows: “The defendant is presumed to be innocent, and that presumption accompanies and protects him throughout the trial, until it is overcome by evidence establishing his guilt beyond a reasonable doubt.
“A reasonable doubt does not mean every doubt that may flit through your mind in a consideration of this case, but a doubt for which you could give a reason, if called upon to do so. If, after carefully considering the evidence and the law as given you, you find a doubt which leaves your mind unsatisfied, that will be a doubt to which the defendant is entitled to the benefit; but he is not entitled to the benefit of any doubts which may not have a reasonable foundation in the evidence and in the circumstances of the case.
“You are the sole judges of all questions of fact, and in this respect the court can not be of any aid to you. You have had-an opportunity of observing the conduct of the witnesses while on the witness stand, as well as the interest which any witness may have had in the transaction about which he may have testified, and these are matters which should be considered by you in determining the question as to the amount of weight that you are to give the evidence of any witness who has been introduced either by the State or the defense.
“It is your duty to arrive at a conclusion, in considering the facts and circumstances of this case, the same as you would come to a.conclusion upon any other set of facts in life. There is no technical rule which prevents you from applying to them the same rule of common sense that you would apply to any other subject that might come under your consideration. If, therefore, after an impartial consideration of all the evidence, you can candidly say that you are not satisfied with the defendant’s guilt, then you have a reasonable doubt, and you should acquit the defendant; but if, after such impartial consideration of all the evidence, you can truthfully say that you have an abiding conviction of the defendant’s guilt, then you have no reasonable doubt, and it will be your duty to return a verdict of guilty.”
To which, as a whole, the defendant excepted. Instructions on the law of self-defense were given over the objections of the defendant, and were asked by him and refused by the court. But as the undisputed facts show conclusively that the defendant did not act in self-defense, and was not excusable or justified in the killing of the deceased, it is not necessary to set them out in this opinion.
The testimony as to the hole in the hub of the wagon wheel was inadmissible. Its only effect, if any, was to show that the defendant was guilty of murder.
Appellant has no right to complain because Mrs. Simmons was examined in chief in his absence. He was on bail, and, under the statutes of this State, his trial, at the discretion of the prosecuting attorney, could have progressed to a verdict while he was not present. Sand. & H. Dig. § 2185; Bond v. State, 63 Ark. 504.* He was not misled. He was present at the cross-examination and redirect examination; and his attorney was present at the examination in chief; and he never asked that her examination in chief be retaken.
The court erred in instructing the jury that if “the defendant unlawfully killed James Harvey with a deadly weapon, the law presumes such killing was done with malice.” It deprived the defendant of the benefit of any provocation or mitigating circumstances connected with the killing that tended to mitigate the offense. There was evidence adduced at the trial tending to show that a few hours before the killing deceased grossly insulted and abused the defendant, and shortly thereafter shot at him, and that thereupon he killed the deceased by shooting him. The effect of the instruction was to withdraw this evidence from the consideration of the jury. In this way it was prejudicial.
The exception to the instruction given by the court on its own motion and copied in this opinion was general. The objection urged against it in this court is that the court said a reasonable doubt is one for which a juror could give a reason, if called upon to do so. If this be a defect, which we think it was, it should have been reached by a specific objection. It is one the court would have doubtless readily remedied if its attention had been called to it. The objection extended to the whole instruction, consisting of four paragraphs, and, one or more of these being sufficient, it should not have been sustained. See St. L., I. M. & S. Ry. Co. v. Barnett, 65 Ark. 255.
The errors of the circuit court that we have mentioned were only prejudicial in so far as they may have affected the finding of murder in the second degree. The defendant is undoubtedly guilty of voluntary manslaughter, if not of a higher offense. For this reason a majority of us are inclined to the opinion that the better course is to end the matter by remanding the .case to the circuit court with an order to sentence the appellant for voluntary manslaughter, and in this way avoid the trouble, expense, delay and uncertainty of another trial. But, as counsel may have knowledge of facts which would make such a course unwise in this case, we have concluded to give them an opportunity to be heard before entering final judgment. An order will now be entered setting aside the judgment for murder in the second degree, with leave for either side to show cause within one week why the case should not be remanded to the circuit court with an order to sentence the defendant for voluntary manslaughter.
(At a subsequent day the court made an order remanding the cause to the circuit court with direction to sentence the defendant as above indicated. — Rep.)
Opinion delivered January 21, 1905.See also Gore v. State, 52 Ark. 285. — (Rep.)