Bailey v. State , 206 Ark. 121 ( 1943 )

The majority have reversed and remanded this case unless the Attorney General elects to have it affirmed for voluntary manslaughter with the minimum punishment of two years in the penitentiary. This because, say the majority, the court erred in instructing the jury that appellant was guilty of murder in the second degree or nothing, and refused to instruct on manslaughter either voluntary or involuntary. In so holding I think the trial court was absolutely correct and that the facts recited in the majority opinion show that he was correct. I think the facts justified a charge against appellant of murder in the first degree, and that, if he had been so charged and convicted the judgment should be affirmed. However, he was only charged with murder in the second degree, was convicted and the judgment should be affirmed.

Our statute, 2964 of Pope's Digest, defines murder as "the unlawful killing of a human being in the peace of the state with malice aforethought, either express or implied." Murder is of two kinds, first and second degrees. "All murder which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of wilful, deliberate, malicious and premeditated killing — shall be deemed murder in the first degree." Section 2969. "All other murder shall be deemed murder in the second degree." Section 2970.

A specific intent to take life is not a necessary element of murder in the second degree. Petty v. State,76 Ark. 515, 89 S.W. 465; Byrd v. State, 76 Ark. 286,88 S.W. 974; Price v. State, 114 Ark. 398, 170 S.W. 235. Yet the majority opinion shows by appellant's own testimony and confession that he had the intent to kill Dr. Ritchie. Appellant was drunk, but not too drunk to know what he was doing. We have held that if one who is too drunk to know what he is about assaults another without provocation and beats him to death, he is guilty of murder in the second degree, Byrd v. State, supra.

"Manslaughter," says our statute, 2980, "is the unlawful killing of a human being, without malice, express or implied, and without deliberation," Two kinds of manslaughter are defined in the next two sections, voluntary and involuntary. It is voluntary "upon a sudden heat of passion, caused by a provocation apparently sufficient to make the passion irresistible." It is entirely beyond my ability to read the evidence as given by appellant and set out by the majority opinion and reach the conclusion that appellant might have been guilty of involuntary manslaughter. In the first place, to be either kind of manslaughter, there must be a complete absence of malice, "without malice, express or implied," the presence of which makes the offense murder, — murder in the second degree, if there is lacking the specific intent to kill, but with it, murder in the first degree; but assuming the want of malice, where is the evidence that he threw Dr. Ritchie off his car "upon a sudden heat of passion, caused by a provocation apparently sufficient to make the passion irresistible?" To me there is no such evidence, and it is not error to refuse an instruction for a lower degree of the crime when there is no evidence to support such lower degree. Washington v. State, 181 Ark. 1011,28 S.W.2d 1055. His own statement fails to reveal any sudden heat of passion. His only fear was that Ritchie would turn him over to the cops, and, because he was drunk, it would go hard with him. He told them they were not man enough to take him to the cops, and that it was just suicide to him, thereby revealing his malice and intent to kill if necessary to throw him off the car. The fact that Dr. Ritchie struck at him, if it be a fact, and attempted to take hold of the steering wheel did not cause a sudden heat of passion on his part, nor was that act apparently or otherwise sufficient to make the passion irresistible. I think the cases cited in the majority opinion are not in point, because the undisputed facts here make them inapplicable.

I, therefore, respectfully dissent from the holding that the court erred in instructing the jury that appellant was guilty of murder in the second degree or nothing, and refusing to instruct on manslaughter, either voluntary or involuntary. I concur in the affirmance of guilt for voluntary manslaughter, as it is embraced in the charge of second degree murder, if the Attorney General so elects.

Mr. Justice HOLT concurs in the views here expressed. The Chief Justice concurs except as to the expression that the facts would justify a charge of murder in the first degree.