(after stating the facts). 1. Counsel for the defense assigns as error the action of the court in refusing to give the following instruction: “ 5. If the defendant thought the gun was not loaded, he cannot be convicted of any crime greater than involuntary manslaughter, and not of involuntary manslaughter unless he acted in such a negligent manner that the law imputes criminality to his acts. ”
The court did not err in refusing this instruction. The defendant admits that he pointed the gun at the deceased and pulled the trigger. It was an unlawful act, punishable by a fine. Acts of 1907, c. 330. Therefore, under his own testimony considered in its most favorable light, he was guilty of involuntary manslaughter. Moreover, the defendant admits that he made no attempt whatever to ascertain whether the gun was loaded before he pointed it at the deceased and snapped it. This was negligence on his part. It is involuntary manslaughter where the death of another occurs through the negligent use of a dangerous agency. Ringer v. State, 74 Ark. 262; Mabry v. State, 80 Ark. 345.
2. Counsel for the defense contends that the court erred in refusing the following instruction: “7. You may, in determining whether the defendant did or did not act with premeditation and deliberation, consider his age.”
According to the testimony adduced by the defendant, he was fifteen years of age, and according to the testimony of the State .he was eighteen years of age. Under the law, from the age of fourteen years, an infant is presumed tobe capable of committing crime, and of being responsible therefor in the same manner as in the case of an adult. Underhill on Criminal Evidence, § 20; Wharton’s Criminal Law, (10 ed.) vol. 1, § 68; Bishop, New Criminal Law, § 368.
Of course, in arriving at a verdict, the jury should consider the age of the defendant in connection with all other facts and circumstances adduced in evidence. In other words, it is the duty of the jury to consider all the evidence and base their verdict on it when considered as a whole. This they were required to do under the general instructions given by the court. It was not error for the court to refuse to select a single fact, and suggest to the jury what effect they might give to it. It has often been said by this court that instructions should not be based on isolated facts, but should be so framed that all parts of the evidence should be considered and weighed by the jury. Newton v. State, 37 Ark. 333; Carpenter v. State, 62 Ark. 286; and cases cited; Hogue v. State, 93 Ark. 316; Ince v. State, 77 Ark. 418.
In the case of Hogue v. State, supra, the court said: “The practice of framing separate instructions on distinct circumstances, and thus, as it is said, singling them out, is not commendable, and it has been held by this court in several decisions that it is not error to refuse such instructions. Carpenter v. State, 62 Ark. 286; Ince v. State, 77 Ark. 418. But the giving of such an instruction is not prejudicial error where the court in .the whole charge directs the jury to consider all the facts and circumstances proved in the case, and especially where, as in this case, the court instructs that the facts and circumstances in evidence shall be consistent with each other and with the guilt of the defendant, and inconsistent with any reasonable theory of defendant’s innocence. ”
In the instant case the court refused to give the instruction, and there was no error committed thereby.
3. Counsel also charged that the court erred in refusing to give the following instruction: “6. In determining whether the defendant acted so negligently as to make his act criminal, you may consider his age, and his acts and conduct are to be considered in the light of the discretion and experience one 'of his years is presumed to possess. ”
This instruction is subject to the defect pointed out in instruction No. 5, and as well in that contained in No. 7 supra.
4. It is next contended that the court erred in refusing to allow defendant to show that the deceased had been driven from home by his mother a short time before he was killed. Counsel insist that such testimony tended to throw light on the state of defendant’s mind. The court did allow counsel for defendant to show that Longley was in an ill humor, but did not allow him to go into the cause of it. The action of the court was correct. There was no connection whatever between the acts of the mother of the deceased and the acts of the defendant. It was entirely irrelevant to the issue under investigation, and had no connection with the case. It could not in any manner have tended to prove or disprove the innocence of the defendant. When the defendant proved that the deceased was in an ill humor, he had gone as far as he had a right to go into that question, because there is no connection whatever between the acts and conduct of the mother of the defendant and the acts and conduct of the defendant.
5. It was earnestly insisted by the counsel for the defendant that the verdict is not supported by the evidence. The law in the case is clearly stated in Green v. State, 51 Ark. 189, as follows: “In order to constitute the killing of a human being murder in the first degree, there must be a specific intent to take life formed in the mind of the slayer, before the act of the killing was done. It is not necessary, however, that the intention be conceived for any particular length of time before the killing. It may be formed and deliberately executed in a very brief time. If it was the conception of a moment, but the result of deliberation and premeditation, reason being on its throne, it would be sufficient. The law fixes no time in which it must be formed, but leaves its existence as a fact to be determined by the jury from the evidence.”
The evidence on the part of the State shows that the defendant and the other boys began to play by throwing rocks at each other, and that they finally became mad and began to fight in earnest; that the defendant first attempted to cut the throat of one of the boys with a razor; that as soon as his brother came up with the pistol he took it and endeavored to shoot two of his companions; that when Longley took the pistol away from him, he went home and came back with his father’s shotgun; that on his return with the gun he met Longley and the other boys coming toward the house, where Longley had previously stated that he was going to give the pistol back to deceased’s mother. The defendant took his position behind one tree, and Longley took another about ten feet distant. Longley kept dodging back and forth behind the tree, and as soon as the defendant got him within range of his gun he fired. It is also true that the defendant testified that at the same time the deceased was trying to shoot him, but this is denied by all the witnesses of the State. All of them state that deceased was going to defendant’s ho ne for the purpose of giving the pistol to defendant’s mother; that the pistol was in his right hip pocket, and that he made no attempt whatever to draw it or in any way to injure the defendant.
If the testimony of the State’s witnesses is to be believed, the deceased gave the defendant no provocation whatever, either by words or acts, to kill or injure him. • According to their testimony, the circumstances accompanying the killing show a deliberate and premeditated design on the part of the defendant to kill Longley. According to the settled rules of this court, the verdict cannot be disturbed on appeal where there is substantial evidence to support it. The defendant was presumed to have intended the natural consequences of his acts, and we cannot say there was no substantial evidence to sustain the verdict. See Beene v. State, 79 Ark. 460.
6. Counsel for the defendant complains of certain alleged irregularities connected with the return of the verdict. The jury was asked Hy the court if they had agreed on a verdict. R. W. Porter, one of the jury, replied that they had, and the court said: “Hand it up.” We here copy from the record as follows: “Therefore R. W. Porter, one of said jury, hands the court the following: ‘We, the jury, find the defendant guilty as charged in the indictment and leave the punishment to the court. (Signed) R. W. Porter, Foreman.’ The court looked at the verdict, and read it over to himself, and said: ‘Gentlemen of the jury, in murder cases the law requires you to fix the degree of guilt, whether murder in the first degree, or second degree, or some lower degree of homicide. ’ Thereupon one of the jurors replied: ‘The indictment is for murder in the first degree.’ The court said: ‘Do you mean to find him guilty of murder in the first degree?’ to which some one of the jury replied: ‘Yes.’ At this point counsel for the defendant said to the court: ‘Is your Honor sure that the jury understands that the punishment for murder in the first degree is death?’ and they replied that they did. Thereupon the court wrote into the verdict, after the word ‘guilty,’ the words ‘of murder in the first degree,’ and struck out the words ‘and leave the punishment to the court.’ When the verdict had been so written, the court read the same, and asked the jury if that was their verdict, and they replied that it was. Therefore defendant’s counsel asked that the jury be polled. This was done, and each juror announced that it was his verdict. ”
This is not a matter for which the judgment should be reversed. To do so would be to put form above substance. It is manifest from the record that each member of the jury had voted to convict the defendant of murder in the first degree, and intended to return such verdict into court. The court in its instructions had told the jury that the punishment for murder in the first degree is death, and the jury seems to have thought it necessary for the punishment to be fixed by them or by the court; but when reminded by the court that the law fixes the punishment for murder in the first degree, and that they had been so instructed, and, upon being further asked by the court if they intended to find the defendant guilty of murder in the first degree, the jury answered : “Yes.”
We think there can be no doubt but that the jury intended by their verdict to find the defendant guilty of murder in the first degree. In any event, it is certain that the court asked the jury if they meant to find the defendant guilty of murder in the first degree, and the jury through their foreman so declared their verdict. When the jury were polled, each member adhered to the verdict. Therefore the record shows that the jury returned a verdict of murder in the first degree, and the court properly received it.
All the cases concur that the jury have full power over their verdict, and may amend it, or recede from it, at any time before it has been received and recorded, and themselves have been discharged from the case.
The court in its instructions covered every phase of homicide. The instructions were full and fair to the defendant. He was convicted by the jury upon evidence which we have held warranted the verdict.
Therefore, finding no prejudicial error in the record, the judgment must be affirmed.