Tom Whit was indicted by the grand jury of Nevada County for murder in the first degree, charged with the killing of Walter Ellis. He was tried on the indictment, and convicted of voluntary manslaughter, and sentenced to four years in the penitentiary, and has obtained an appeal to this court.
The only question which his counsel presents to the court is the alleged improper argument of the prosecuting attorney and the failure of the court to restrain the argument. The Reporter will set out the argument and action of the court. As stated in the recent case of Kansas City So. Ry. Co. v. Murphy, 74 Ark. 256, touching reversals for improper argument: “In the final analysis the reversal rests upon an undue advantage having been secured by argument which has worked prejudice to the losing party not warranted by law and the facts of the case.”
Therefore, the first question here is whether, conceding the argument to have been improper and misleading, has it worked prejudice? The only witnesses to the tragedy were introduced by the State; the defendant’s witnesses only going to questions of character and to statements of the deceased and of witnesses and unfriendly relations of the State’s witnesses. The testimony of some of the State’s witnesses made out a case of murder, while the testimony of the. others made a case of voluntary manslaughter. The least probative force to be given to the most favorable testimony for the defendant convicts him of voluntary manslaughter. The jury have taken the most lenient view of the testimony, and no prejudice has been done the defendant by this argument. This is the only question presented by counsel in his brief, yet there are other matters presented in the motion for new trial, and, while stressing this one, counsel has not intended to abandon the others. They have all been considered, and the court is unable to find where any of them could have worked any prejudice to the appellant.
The judgment is affirmed.