HAET, J.,
(after stating the facts). (1) It is insisted by counsel for the defendant that the court erred in giving instruction No. 9, which is as follows: ‘ ‘ The killing being proved, the burden of proving circumstances of mitigation that justify or excuse the homicide shall devolve on the accused, unless by proof on the part of the prosecution it is sufficiently manifest that the offense only amounted to manslaughter, or that the accused was justified or excused in committing the homicide.”
There was no error in giving this instruction. The instruction as given is a copy of section 1765 of Kirby’s Digest. The killing of Mackley by the defendant was both proved and admitted, and the statute is applicable and makes it devolve on the defendant to prove circumstances in justification or excuse. In other instructions the court plainly instructed the jury that the burden was on the State to prove the defendant’s guilt beyond a reasonable doubt. The jury were fully and fairly instructed on the question of reasonable doubt in other instructions given by the court, and in this way the rights of the' defendant were entirely safeguarded: Tignor v. State, 76 Ark. 489; Johnson v. State, 120 Ark. 193, and Turner v. State, 128 Ark. 565. So it will be seen that the jury understood from the instructions of the court that, although the burden of proving acts of mitigation or justification devolved on the accused, it was sufficient for him to show facts which would raise in the minds of the jury a reasonable doubt as to his guilt.
(2) It is next insisted that the court erred in giving instruction No. 11, which is as follows: “If you believe from the evidence in this case that the defendant, armed with a deadly weapon, sought the deceased with a felonious intent to kill him, or sought or brought on, or voluntarily entered into the difficulty with deceased with the felonious intent to take his life, then the defendant can not invoke the law of self-defense, no matter how imminent the peril in which he found himself placed. ’ ’
It is claimed by counsel for the defendant that there is no testimony upon which to predicate this instruction. The evidence shows that the defendant and the wife of the deceased had a controversy over the delivery of some flowers on the day before the killing. According to the defendant’s own testimony, he anticipated further trouble with the parties about the flowers and for that reason armed himself with a pistol. When he first went into the store and before the deceased had time to write his name upon the express book, the defendant demanded of him an apology for the way he had treated him the day before. From these facts and others appearing in the statement of facts there was abundant evidence upon which to predicate the instruction.
3. It is next insisted that the court erred in refusing to give instruction No. 1, asked by the defendant. The instruction is as follows: ‘ ‘ The fact that defendant procured a pistol and went to deceased’s place of business armed is a circumstance that the jury may consider in determining what was his purpose and intention in going there; but, after considering all the testimony in the case, if you believe he went there not for the purpose of engaging in a difficulty with deceased, hut in the discharge of the duties of his employment, and that he armed himself for protection only while in the performance of such duties, then the fact that he had armed himself would not cut off his right of self-defense.”
The court did give instruction No. 2, which is as follows: “The fact that defendant procured a pistol and went to deceased’s place of business is a circumstance that the jury may consider in determining what was his purpose and intention in going there; but, after considering all the testimony in the case, if you believe he went there, not for the purpose of engaging in a difficulty with deceased, but in the discharge of the duties of his employment, or to settle peaceably with him a misunderstanding or ill feelings between them, or between him and deceased’s wife, and that he armed himself for protection only while trying to carry out such purpose, then the fact that he had armed himself would not cut off his right of self-defense.”
According to the defendant’s own testimony, it was necessary for him to go to the deceased’s place of business in the course of his employment. He anticipated further trouble with the deceased or his wife and armed himself that he might protect himself from violence at their hands. The defendant, also, said that as soon as he went into the store on the day of the killing he demanded an apology from the deceased for what had been said to him the day before. So it will be seen that both of these theories of the defendant were presented to the jury by the instructions given by the court.
4. It is next insisted that the court erred in refusing to give instruction .No. 8, which is as follows: “The law presumes the defendant innocent of this charge, and this presumption shields and protects him, and in reasonably doubtful cases is in itself sufficient to turn the scale in his favor and acquit him.”
The court gave instruction No. 9, which is as follows: “The law presumes the defendant in this case innocent of the charge against him, and that presumption of innocenee shields and protects him from a conviction in this case until such time as you may find from the evidence beyond a reasonable doubt the defendant is guilty of the charge against him.”
Thus it will be seen that the matters embraced in instruction No. 8 as asked by the defendant were completely presented in instruction No. 9, which was given by the court.
The defendant also contended that the court refused to give certain instructions asked by him on the question of reasonable doubt. "We do not deem it necessary to set out these instructions because the court gave other instructions on that subject which were complete in themselves and fully and fairly submitted that question to the jury.
5. The court also read to the jury certain sections of the digest relating to homicide. There was no error in this. Mitchell v. State, 73 Ark. 291. One ground of objection to the reading of these sections of the statute was that they did not contain any charge on the subject of appearance of danger to the defendant. This phase of the case was fully and fairly submitted to the jury in other instructions given by the court, and the instructions when read as a whole are harmonious. Therefore the court did not err in this regard.
6. Finally it is insisted that the court erred in not granting a new trial because of certain remarks made by one of the attorneys for the State in his closing argument to the jury. In his opening statement to the jury the defendant’s counsel told the jury that the defendant had nothing to cover up or conceal from the jury. Later on he objected to certain testimony being given to the jury at the instance of the State, and the court sustained his objection and excluded the testimony. One of the State’s attorneys, in his closing argument, referred to this fact as an attempt by the defendant to conceal the facts from the jury. The defendant’s counsel objected to the argument, but the court overruled his objection.
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HAET, J.,
(after stating the facts). (1) It is insisted by counsel for the defendant that the court erred in giving instruction No. 9, which is as follows: ‘ ‘ The killing being proved, the burden of proving circumstances of mitigation that justify or excuse the homicide shall devolve on the accused, unless by proof on the part of the prosecution it is sufficiently manifest that the offense only amounted to manslaughter, or that the accused was justified or excused in committing the homicide.”
There was no error in giving this instruction. The instruction as given is a copy of section 1765 of Kirby’s Digest. The killing of Mackley by the defendant was both proved and admitted, and the statute is applicable and makes it devolve on the defendant to prove circumstances in justification or excuse. In other instructions the court plainly instructed the jury that the burden was on the State to prove the defendant’s guilt beyond a reasonable doubt. The jury were fully and fairly instructed on the question of reasonable doubt in other instructions given by the court, and in this way the rights of the' defendant were entirely safeguarded: Tignor v. State, 76 Ark. 489; Johnson v. State, 120 Ark. 193, and Turner v. State, 128 Ark. 565. So it will be seen that the jury understood from the instructions of the court that, although the burden of proving acts of mitigation or justification devolved on the accused, it was sufficient for him to show facts which would raise in the minds of the jury a reasonable doubt as to his guilt.
(2) It is next insisted that the court erred in giving instruction No. 11, which is as follows: “If you believe from the evidence in this case that the defendant, armed with a deadly weapon, sought the deceased with a felonious intent to kill him, or sought or brought on, or voluntarily entered into the difficulty with deceased with the felonious intent to take his life, then the defendant can not invoke the law of self-defense, no matter how imminent the peril in which he found himself placed. ’ ’
It is claimed by counsel for the defendant that there is no testimony upon which to predicate this instruction. The evidence shows that the defendant and the wife of the deceased had a controversy over the delivery of some flowers on the day before the killing. According to the defendant’s own testimony, he anticipated further trouble with the parties about the flowers and for that reason armed himself with a pistol. When he first went into the store and before the deceased had time to write his name upon the express book, the defendant demanded of him an apology for the way he had treated him the day before. From these facts and others appearing in the statement of facts there was abundant evidence upon which to predicate the instruction.
3. It is next insisted that the court erred in refusing to give instruction No. 1, asked by the defendant. The instruction is as follows: ‘ ‘ The fact that defendant procured a pistol and went to deceased’s place of business armed is a circumstance that the jury may consider in determining what was his purpose and intention in going there; but, after considering all the testimony in the case, if you believe he went there not for the purpose of engaging in a difficulty with deceased, hut in the discharge of the duties of his employment, and that he armed himself for protection only while in the performance of such duties, then the fact that he had armed himself would not cut off his right of self-defense.”
The court did give instruction No. 2, which is as follows: “The fact that defendant procured a pistol and went to deceased’s place of business is a circumstance that the jury may consider in determining what was his purpose and intention in going there; but, after considering all the testimony in the case, if you believe he went there, not for the purpose of engaging in a difficulty with deceased, but in the discharge of the duties of his employment, or to settle peaceably with him a misunderstanding or ill feelings between them, or between him and deceased’s wife, and that he armed himself for protection only while trying to carry out such purpose, then the fact that he had armed himself would not cut off his right of self-defense.”
According to the defendant’s own testimony, it was necessary for him to go to the deceased’s place of business in the course of his employment. He anticipated further trouble with the deceased or his wife and armed himself that he might protect himself from violence at their hands. The defendant, also, said that as soon as he went into the store on the day of the killing he demanded an apology from the deceased for what had been said to him the day before. So it will be seen that both of these theories of the defendant were presented to the jury by the instructions given by the court.
4. It is next insisted that the court erred in refusing to give instruction .No. 8, which is as follows: “The law presumes the defendant innocent of this charge, and this presumption shields and protects him, and in reasonably doubtful cases is in itself sufficient to turn the scale in his favor and acquit him.”
The court gave instruction No. 9, which is as follows: “The law presumes the defendant in this case innocent of the charge against him, and that presumption of innocenee shields and protects him from a conviction in this case until such time as you may find from the evidence beyond a reasonable doubt the defendant is guilty of the charge against him.”
Thus it will be seen that the matters embraced in instruction No. 8 as asked by the defendant were completely presented in instruction No. 9, which was given by the court.
The defendant also contended that the court refused to give certain instructions asked by him on the question of reasonable doubt. "We do not deem it necessary to set out these instructions because the court gave other instructions on that subject which were complete in themselves and fully and fairly submitted that question to the jury.
5. The court also read to the jury certain sections of the digest relating to homicide. There was no error in this. Mitchell v. State, 73 Ark. 291. One ground of objection to the reading of these sections of the statute was that they did not contain any charge on the subject of appearance of danger to the defendant. This phase of the case was fully and fairly submitted to the jury in other instructions given by the court, and the instructions when read as a whole are harmonious. Therefore the court did not err in this regard.
6. Finally it is insisted that the court erred in not granting a new trial because of certain remarks made by one of the attorneys for the State in his closing argument to the jury. In his opening statement to the jury the defendant’s counsel told the jury that the defendant had nothing to cover up or conceal from the jury. Later on he objected to certain testimony being given to the jury at the instance of the State, and the court sustained his objection and excluded the testimony. One of the State’s attorneys, in his closing argument, referred to this fact as an attempt by the defendant to conceal the facts from the jury. The defendant’s counsel objected to the argument, but the court overruled his objection. Counsel for the State then proceeded again with the same line of argument, and the defendant again objected to the argument. Thereupon the court said to the counsel for the State making the argument: ‘ ‘ Mr. Parks, that argument is wrong, and the jury will not consider it and you had better not follow it any further. ’ ’ The attorney then said that his only object in making that argument was in answer to Judge Carter’s statement to the jury that the defense had nothing to conceal or hide in the case. Counsel for the defendant then requested the court to withdraw these remarks from the consideration of the jury and to reprimand and punish counsel. The court overruled his motion and told Attorney Parks to proceed with his argument within the ruling of the court above made and set out.
Counsel for the defendant assigned this action of the court as error, and rely upon the case of Holder v. State, 58 Ark. 473, and other cases of like character. In the Holder case the prosecuting attorney persistently defended his action and in defiance of the court repeated his objectionable argument. Here the facts are essentially different. Upon the first complaint the court overruled the objections of the defendant’s attorney. Upon the second complaint he sustained his objections and specifically directed the jury not to consider the remarks and told the attorney for the State that his remarks were wrong and that he had better not repeat them. This had the effect to relate back to all the remarks made by the prosecuting attorney at any stage of his argument and was tantamount to a reconsideration of the court of its first ruling in the matter and was equivalent to a favorable ruling to the defendant in both instances.
It is true the State’s attorney then stated that his only object in making the argument was in answer to the defendant’s attorney’s opening statement that he had nothing to conceal; but it does not appear to us that this remark was made in defiance of the orders of the court but was rather an apology for his transgression of the rules of argument. It seems that the court so understood it and declined to reprimand him further, but told him to proceed with his argument within the ruling of the court above set out.
We think the action of the court removed any prejudice that might have resulted from improper remarks made by the counsel for the State, and that the jury disregarded the improper remarks of counsel as directed by the court and considered the case solely upon the testimony and the law. It may be fairly assumed from the record that the jury heeded the admonition of the court and did not consider the improper remarks made by the State’s attorney. Sims v. State, 131 Ark. 185.
We find no prejudicial error in the record and the judgment will be affirmed.