ON REHEARING.
Hied, C. J.The court held there was error in the admission of evidence and in one instruction, but that said errors could only affect the conviction for murder in the second degree, because the evidence of the appellant and of the witnesses produced by him establish his guilt of voluntary manslaughter. The court then asked the Attorney General whether the State would prefer his conviction to stand for voluntary manslaughter or to take a new trial on the indictment. The Attorney General answered that the State preferred a sentence for voluntary manslaughter to another trial on the indictment. The court then ordered the case remanded to the Prairie Circuit Court with instructions to that court to sentence the appellant for the crime of voluntary manslaughter, and entered a judgment modifying the judgment of conviction of murder in the second degree to that extent.
The appellant files a motion for a rehearing, setting forth, among other grounds, that the judgment of this court refusing a new trial and remanding for sentence for the lesser crime than the one for which he was convicted, is a violation of the Fourteenth Amendment to the Constitution of the United States in that it is a denial of trial by jury, a part of the “due process” of law guarantied by that amendment.
The practice followed in this case was established in the case of Simpson v. State, 56 Ark. 19, and has been followed in. many cases since, notably Routt v. State, 61 Ark. 594; Eastling v. State, 69 Ark. 189; Vance v. State, 70 Ark. 272. This practice has been sanctioned by the Supreme Court of the United States, Ballew v. United States, 160 U. S. 187, wherein the question was differently presented, but decided on the same principle that controlled the cases in this court.
The rule is thus stated by Mr. Justice Riddick in the Vance, case: “It is, then, within our discretion to reverse the judgment and remand the case for a new trial on the whole case, or, as the exclusion of the evidence referred to could have affected the decree of murder only, we can set aside the judgment for murder in the first degree, and allow the verdict to stand for murder in the second degree.”
Following these precedents, the court holds that it is not a denial of any right under the Constitution of the United States to order the lower court to sentence the defendant for voluntary manslaughter, and set aside the conviction for murder in the second degree, in order to sentence him to that grade of homicide.
So far I have spoken for the court, but I concur in the result above announced for different reasons than those stated in the opinion of the court by Mr. Justice Battle. I do not think the admission of the evidence of the shot in the wheel was error. It is true that quite a length of time elapsed from the shooting till it was discovered, but that was fully understood and merely tended to weaken the evidence, not render it inadmissible. The jury clearly understood that it was not positively proved that the shot was fired by Darden when he was shooting Harvey, but it was a circumstance tending to prove that it was fired then. The instruction held erroneous is certainly inaccurate, or rather not full enough. But the appellant did not point out its inaccuracy, which was more formal than real, and should have been called to the attention of the trial judge when the instruction was offered. Even if these matters were errors, in my opinion they could not have been prejudicial, for Darden’s own evidence showed he was guilty of murder in the first degree. He had time to cool from his previous difficulty with Harvey, but, evidently in a spirit of revenge for indignities heaped upon him earlier in the day, he armed himself with a rifle, and went to meet his enemy at a point where he knew he would soon pass on a business trip. Even if Harvey opened fire with a pistol at the distance of 196 yards, as Darden’s testimony tended to prove, Darden was not authorized, under the law, to advance to the encounter, especially with a long range rifle which killed, in this instance, at the distance of 196 yards, while Harvey’s pistol could not carry one-fourth that distance. Harvey was fully justified in opening fire when appellant says he did; he had been given the right to do so by appellant’s menacing attitude, but, taking all the evidence, I do not believe Harvey ever had his pistol in his hands. I can see no difference in the facts here than if Darden had concealed himself and shot from ambush. I was absent from the State when the case was argued and determined, and did not participate in it heretofore, and therefore lost the benefit of the oral argument. But, in order to vote intelligently on this motion, I went through the evidence and instructions, and came to the conclusion stated. As the State is not willing to try him again, I have reluctantly decided to vote with my brothers to order him sentencéd for voluntary manslaughter.
The discretion to be exercised by the judges under the rule in the Simpson case is one rarely to be exercised, in my opinion, and then only in extreme cases to prevent a miscarriage of justice,, and where no possible prejudicial error occurred in the trial so far as the ultimate grade fixed is concerned. If I agreed with my brothers in this case that the alleged errors pointed out were prejudicial, I would vote for a new trial; but, not believing any prejudicial error has been committed, I can not vote for a new trial, and hence concur in the judgment.
The Attorney General has made a motion for ■ a forfeiture on the bond for the failure of the appellant to present himself in court or in execution of the process of the court. The motion comes too late; no forfeiture was asked, and his presence here not demanded, and it is not to be presumed that he will not render himself in execution of the order of the court, which is that the cause is reversed and remanded to the Prairie Circuit Court, Southern District, with the direction that the appellant be sentenced for the crime of voluntary manslaughter, and that his conviction of murder in the second degree is modified to the extent that it is reduced to a conviction of voluntary manslaughter, and that in execution of the judgment of this court he surrender himself to said circuit court on the first day of its next term under penalty of a forfeiture of his bond.
Mr. Justice BatteE dissented as to the motion of the Attorney General; concurring in the other modifications.