(concurring.) Counsel for appellant have presented numerous questions which they insist, severally and collectively, call for a reversal. • On all the questions presented the court is unanimously for an affirmance except one, and that one, which is chiefly relied upon by counsel, has given the court anxious consideration, and this question alone will be discussed in this opinion.
• The appellant was indicted for murder in the first degree, and the court gave to the jury on his trial correct instructions on murder in the first degree, murder in the second degree and justifiable homicide, but did not instruct upon either voluntary or involuntary manslaughter. The appellant asked an instruction on voluntary manslaughter, which the court declined to give.
Judge Riddick's opinion considers the sufficiency of the -instruction requested, but this opinion will not deal with it, but will assume that the instruction was correct, or rather that a request was made to charge on voluntary manslaughter, and that request denied.
I think the judgment should be affirmed for two reasons: First, the court should not have instructed on voluntary manslaughter, and it would have been error to have done so; and, second, if it be conceded that an instruction on voluntary manslaughter should have been given, yet it was not prejudicial in this case.
i. The evidence adduced on behalf of the State established murder beyond question, and really murder in the first degree, although there was enough evidence to justify and require an instruction for murder in the second degree. The least probative force which can be given to the State’s evidence is that it establishes murder in the second degree beyond a reasonable doubt; and it was ample to have justified and sustained a verdict in either degree.
The evidence of the defendant was as follows: After detailing the facts leading up to the tragedy, which briefly were: He was foreman of an extra gang in railroad work and got on the train of which deceased was conductor at Dermótt to go to McGehee. He took one of his negro employees, Tee Judson, with him on the train. He told the conductor his business, and that of his employee, and asked to be permitted to ride without paying. The conductor said he ought to have a pass, and demanded the fare of him and Judson, which was paid. He asked for a cash fare receipt. The conductor told him he did not have his receipts with him, that his porter had them, and he would give them to him later. The conductor then went forward to another car, and the appellant testified: “I said to Mas-singale: 'I believe I will go up and get my cash fare- receipt from the conductor/ and followed the conductor back to the front coach on to the end of the car, and when I got on the other, and he was in the negro car collecting some fares, and I walked up and set down on the end of a seat like this, and put both hands on the railing this way, and sat down in front of .him, and waited until he got through collecting his fares, and I said, ‘Captain, I would like to have those cash fare receipts,’ just that way, and he said, ‘I have been bothered with you enough,’ and I said, ‘No, you haven’t,’ and he said, ‘I put you out of the negro coach once before tonight,’ and I said, ‘No, you haven’t,’ and he said, ‘You are a God-damned liar!’ and I said, ‘You are another one!’ When he called me a God-damned liar, he started down in his pocket after his gun, and I said, ‘Whoap! that don’t go’ and when I seen that he had his gun, coming up with it, I knew he was going to shoot me, and I jerked my gun out, and pulled the trigger, and had no idea of hitting him, but just shot to save my life. I did not kill him because he called me a God-damned liar, but because he attempted to draw his pistol. I am certain that the conductor had his pistol in his hip pocket. I saw it coming out in his hand. He had his lantern on his left arm. I did not see Mr, McGehee at any time. He started down after his gun, and I said, ‘Whoap! that don’t go!’ and I jerked my gun out and fired. I had my gun in the scabbard on the inside of my shirt. My shirt opened in front. He got his gun half way out of his pocket. I saw half of it.”
The negro employee, Judson, gave testimony corroborating, in part, the above-given testimony of Allison» Otherwise, all the testimony tended to prove murder. But the defendant was clearly entitled to have presented to the jury the law governing the evidence introduced in his behalf, and that evidence, if believed, by the jury, entitled the appellant to acquittal on the ground of justifiable homicide. It does not, in my opinion, present any facts rendering him guilty of manslaughter, voluntary or involuntary, and the State’s evidence presented no feature of manslaughter. It is true that the indictment necessarily included the charge of manslaughter, and it is true that the jury had the power to find him guilty of manslaughter. The jury may accept part of one story and reject the balance, and part of the other story and reject the balance, finding the truth between them. Sometimes there is evidence on opposite sides which, dovetailed, will present a grade of crime between the two extremes, and in such cases the judges should charge on every phase presented by the evidence, or which could be directly inferred from it. Such a case was presented recently in Kinman v. State, 73 Ark. 126, and the same thought is found in Flynn v. State, 43 Ark. 289. This case is far from falling within this category. There is no evidence on behalf of the defense which is reconcilable with any evidence on part of the State. The opposing sides present irreconcilable, direct and positive contradiction on every word and action. Therefore, the question is baldly presented, when the State’s evidence makes out a case of murder, and the defense a case of self-defense, shall the circuit judges instruct the jury on the crime of manslaughter, merely because it is contained in legal effect in the indictment, and because the jury have power to find the defendant guilty of this crime ?
In Allen v. State, 37 Ark. 435, the defendant was indicted for murder by poisoning, and the jury convicted her of murder in the second degree. Chief Justice English, considering the absurdity of such a verdict, said that there was no relief from .it in the courts except by appropriate instructions to prevent it; that power to render such verdicts was in the hands of the jury.
In Fagg v. State, 50 Ark. 506, the court, through Chief Justice CocKRtuu, said: “It is contended by appellant that the evidence adduced at the trial leads to but one of two conclusions, that is, that the killing was murder in the first degree or justifiable homicide, and, therefore, that the jury could not legally return a verdict of manslaughter. Conceding the premises to be correct, the conclusion does not follow. Where the evidence and the instructions demand a verdict of murder, there is no alternative but to sentence the prisoner accordingly. * * * The courts can only instruct juries as to their duty, giving to them the law applicable to the facts, and no other. If there is no evidence whatever tending to establish a lower grade of homicide than murder in one'instancé, or voluntary manslaughter in another, the court should decline to give the jury directions as to any lower grade of homicide (Benton v. State, 30 Ark. 328; Allen v. State, supra), and it is the jury’s duty to take the court’s exposition of the law. as that applicable to the case. But the court cannot direct a verdict for the higher offense, nor restrain the jury from returning it for the lower grade.”
In Smith v. State, 50 Ark. 545; this court said: “The court has no discretion to withhold instructions appropriate to any theory of the case sustained by competent evidence.” In Jones v. State, 52 Ark. 345 the court said: “The trial court should in no case indicate an opinion as to what the facts establish; but in properly giving the law the court must of necessity determine whether there is any evidence at all justifying a particular instruction.” Curtis v. State, 36 Ark. 284, is very similar to the last-quoted statement.
In Missouri the same rule as stated in the Jones case is thus elaborated: “The court is the judge of the grade of the homicide the evidence tends to prove, and should only instruct on the law governing these grades. The jury is to determine which grade, if any, the evidence establishes.” State v. Turlington, 102 Mo. 642. To the same effect State v. Punshon, 124 Mo. 448. In State v. McGuire, 113 Mo. 670, the facts disclosed either a wanton and malicious assault to kill, or a perfect right of self-defense against a brutal and unprovoked attack, and it was held that it was proper to refuse an instruction on the lower’ grade. In State v. Doyle, 107 Mo. 36, the defendant did not deny the intentional shooting, but alleged self-defense, and it was held that the trial court properly refused to instruct on a grade lower than the one charged in the indictment.
In Glenn v. State, 71 Ark. 86, the trial court instructed on involuntary manslaughter, and this court said: “It was wrong to instruct on involuntary manslaughter, as there was no evidence of involuntary manslaughter in the case. Acting upon this instruction, the jury found the defendant guilty of involuntary manslaughter, and gave him six months in the penitentiary, while in our opinion the proof strongly tends to show he was guilty of voluntary manslaughter. But, notwithstanding, the judgment must be affirmed. The practice of giving instructions upon degrees of crime when there is no evidence to warrant such instructions is calculated to mislead the jury and work prejudice. It should be avoided.” The trial judge in this case was following this recent admonition from this court to refrain from instructing upon a degree of crime when there was no evidence, and did right in refusing to instruct on manslaughter. It was, as shown by authority, the duty of the court to see if there was any evidence in the record to establish manslaughter, and, finding none, he properly instructed on those grades upon which there was evidence, and on justifiable homicide, and no other. This is the approved criminal practice, not only in Arkansas, but generally. 1 Bishop, Cr. Proc. § 980; 2 Bishop. Cr. Proc. § 638a.
2. If it be conceded that an instruction for manslaughter should have been given, still it is not prejudicial error in this case. Correct instructions were given on the degrees of murder and on justifiable homicide. Assuming there was evidence justifying an instruction on manslaughter, it would have been predicated upon a state of facts which comes here discredited by the jury. The jury has said he was guilty of murder in the second degree, and has assessed his punishment at ten years in the penitentiary. This is five years more than the minimum punishment for that grade of murder, and is three years more than the maximum punishment for manslaughter.
If there is evidence in this record authorizing manslaughter, it has- not impressed the jury, for it has -given the defendant three years more than a conviction for that crime will sustain. It was said in argument that if such an instruction had been given, it would have given the jury greater latitude, and might have produced a lesser verdict, had the jury known they could consider manslaughter. But the jury had latitude from the death penalty to acquittal, and as the jury viewed the case as one calling for severer punishment than the law of manslaughter authorized, it cannot be seen where there has been prejudice to appellant in not having that law submitted to them. Farris v. State, 54 Ark. 4, was very similar to the case at bar; in fact, indistinguishable in principle and with few differences in salient facts. For these reasons the court refused to reverse a conviction for murder in the second degree where the court held there was sufficient evidence of manslaughter to have made it error to refuse to instruct upon it, and yet held it not prejudicial error.
In Bittick v. State, 67 Ark. 131, errors in instructions and argument as to self-defense were held not prejudicial where the jury found defendant guilty of manslaughter, rendering the consideration of self-defense unnecessary. Following and approving these authorities necessarily leads to the conclusion that, if there was error in failing to instruct on manslaughter, it was not pr.ejudical.
Mr. Justice Wood cqncurs in so much of this opinion as holds that the failure to instruct on manslaughter was not prejudicial.