Plumley v. State

'Kirby, J., (after stating the'facts). (1) It is contended that the court erred in admitting the testimony of the exclamation made by the deceased after he was shot and in giving each of said instructions. Appellant insists that the testimony of Witt Perkinson, admitted over his objections, that deceased exclaimed immediately after he was shot, “Oh! oh! Witt, he shot me for nothing,” was incompetent and highly prejudicial. We do not agree with this contention. The exclamation was part of- the res gestae, and it wtas necessary to make this proof to fully and correctly set out the facts of the killing. 'The exclamation was made by the wounded man ’within ten or. twenty seconds, at most, after ■the shot was fired, and was so close in point of time as to be a part of the transaction, and it would have been difficult to give a connected and correct account of the occurrence without stating all that was said and done concerning it. As said in Childs v. State, 98 Ark. 435, “Under the law, all that occurred at the time and place of the shooting which has reference thereto or connection therewith was part of the res gestae.” Byrd v. State, 69 Ark. 537. ‘‘Res gestae are the surrounding facts of a transaction, explanatory of an act, or showing a motive for ’acting. ’ ’ Carr v. State, 43 Ark. 99. See, also, Little Rock Traction & Electric Co. v. Nelson, 66 Ark. 494. It is next contended that said instructions given by the court deprived the accused of acting upon the appearance to him of danger and authorized the jury to find him guilty,’ unless they believed from the evidence that the killing was necessary to save his own life or to prevent his receiving great bodily harm. (2) There was no error committed in giving instruction numbered 5 complained of. It did not relate to the question of murder or manslaughter, but exclnsively to the question of justification of the homicide, or self-defense, and there is nothing in the testimony indicating that appellant is not a person of ordinary reason and sense. Bruder v. State, 110 Ark. 415; Scoggin v. State, 109 Ark. 515; Hoard v. State, 80. Ark. 87. (3-4-5) Neither are instructions numbered 7 and 9 open to the objection that they precluded the defendant from acting .upon the appearance to him of danger. Nor did the court intend by instruction numbered 10 to tell the jury that the defendant was not permitted to avail of the plea of1 self-defense, unless it appeared to them that the danger was &o pressing and urgent that to save himself from death or great bodily harm the killing of the deceased was necessary. It was the purpose only to tell the jury in this instruction that it must have appeared to the defendant not only that the danger to him at the hands of deceased was imminent, etc., but also that it was so pressing and urgent that to save himself, etc., the killing of the deceased was necessary. Although the instruction says “it must have appeared to the defendant not only that the danger to him was imminent,” but it must also appear, etc., intending only to say, but also or but it must also have appeared “that it was so pressing and urgent,” etc., leaving it to the jury to properly consider defendant’s right to act upon appearances of danger when doing so without fault or carelessness. It was not the intention, however, and the instruction did not require the jury to find that the danger was so pressing and urgent that the defendant was required to .act in order to save himself nor deny him the right to act upon the appearance of danger. The instructions given for the defendant unmistakably show that such was the court’s direction, and this instruction properly construed is not in conflict with them. The court repeatedly told the jury that the defendant had the right to act under the circumstances as they appeared to him and in instruction numbered 6, after stating that the defendant relied upon the plea of self-defense, “The court instructs you that in determining whether -or not he acted within his rights under the law of self-defense, you may render the question very simple by adopting the rule which the court now instructs you is -the law, as follows: First. “In so far as is possible, you are to place yourself in the position and under the circumstances surrounding the defendant at the time of the shooting, acting without carelessness on his part, as those circumstances and his position have been disclosed by the evidence, viewing it from the standpoint of the defendant at the time, as you believe from the evidence it appeared to him, you will ask: (1) “Did it appear to the defendant at the time he fired the fatal shot, acting without carelessness on his part, that he was in danger of losing his life or of receiving great bodily harm at the hands of the defendant ? (2) “If it did so appear, did the defendant reach the conclusion that he was in danger of losing his life or of receiving great bodily harm at the hands of the deceased after the exercise of such caution and prudence in judging the appearance and circumstances by which be was surrounded as appeared to him to be reasonably consistent with his safety?” The court told the jury in instruction numbered 8, “You will note that you must place your findings upon what you believe from the evidence the defendant, acting without carelessness on his part, actually thought of the circumstances and appearances iby which he was surrounded at the time. It is not how you think those circumstances and appearances might have affected or impressed you, nor what the defendant might have done,- or ought to have done. The question for you to decide on this issue of self-defense is, wdiat, in good faith, acting under the test the court has given you, the defendant thought he ought to do. It really comes at last to this: Was the defendant really trying to save his own life or to prevent great bodily harm to himself, or did he shoot deceased simply out of malice or revenge? If he shot to save his own life or to prevent great bodily harm to Mmsclf. acting without carelessness on Ms part, as it appeared necessary to Mm under the test above laid down, be is not guilty, and you will acquit Mm.” The appellant claimed to have killed the deceased in necessary self-defense, and the jury did not give credence to his statement. While it is true that seven of the eight of the charge of buckshot that entered the body and side of the deceased went through Ms hand, lending some weight to defendant’s statement that he shot deceased when he thought he was about to draw a weapon; it is further true that most of the shot ranged upward, and if defendant had been in ten or fifteen feet of the deceased when he shot Mm, and shooting from Ms hip even as he claimed, the range of the 'bullets would doubtless not have been upward and most probably the entire charge would have entered the body of deceased without separating. The testimony would have warranted the conviction of the defendant of the Mgher degree of the offense and the instructions fairly submitted the issues to the jury. Finding no prejudicial error in the record, the judgment is affirmed.