Paul Ward, Associate Justice.
Appellant, a Negro man 63 years old, was convicted of murder in the first degree for the slaying of George Wells on the early morning of October 20, 1956. The deceased and another white man named Fred Watkins were discovered by appellant in a car with a Negro woman, Hattie Mae Williams, parked near the house where appellant and his family lived. Circumstances later developed left no doubt that the white men and the Negro woman were engaging in a prolonged orgy of drinking and immoral conduct.
When appellant approached the car one of the men called him a revolting name and when he started to return to his house he was again accosted by one of the white men. Thereupon the parties in the car drove away and appellant, so he says, thought they had left. Appellant then got his shotgun and started to hunt squirrels (he says) but in a short while he discovered the same three people parked by the side of the road approximately one-half mile from appellant’s home. There he saw one of the men and the Negro woman engaged in sexnal intercourse. Appellant decided that he was going to call the law and returned to his home and got his automobile in order to drive to the nearest telephone. In going to the telephone it was necessary for him to pass along that portion of the road where he had last seen the people above mentioned. % Finding the party car at or near where he had just previously left it, appellant drove by. As he proceeded along the road the other car forced him to stop. Again there was abusive and threatening language and appellant shot the deceased.
When shotgun shells picked up at the scene of the shooting were found to match appellant’s shotgun he admitted to the sheriff that he had killed the deceased and also the other white man and the Negro woman. Later he signed a written confession which was introduced in evidence and is contained in the record. Appellant also took the witness stand in his own behalf. More than a half dozen witnesses some of whom had known appellant for a quarter of a century and among whom there were a school teacher, a groceryman, a contractor and a farmer, testified that he had a good reputation as being a quiet and peaceable citizen and “a good man in the community.”
For a reversal or modification of the judgment of the trial court appellant makes one primary contention, and that is that there is no substantial testimony in the record to show that the slaying of George Wells by appellant was done with deliberation and premeditation. After a careful review of all of the testimonjr in the record and of the many decisions of this court relative to the point in issue we have concluded that appellant is right in his contention.
There is no testimony of any witness, aside from the testimony of appellant in open court and his written confession, from which the jury could have found the existence of premeditation and deliberation. Neither do we find any circumstance which amounts to substantial evidence upon which a finding of premeditation and deliberation eonld be based. Consequently we are led to conclude that the jury must have resorted to speculation rather than substantial evidence in arriving at a verdict of murder in the first degree.
Appellant testified in substance: I live about three miles southwest of Crossett on the Sulphur Springs road. On the early morning of October 20, 1956 I heard a noise and saw a car parked on the road near my garden. "When I was within 14 or 15 feet of the car a man jumped out and said: “Hey, where in the hell you going, you goddam son-of-a-bitch, don’t come any farther. Co back. ’ ’ I was returning to my house when the man said “you son-of-a-bitch, you come out here,” but I did not do so. There were three people in the car and I could tell one was a colored woman. When the car drove off in the direction of Crossett I thought they were gone. I had planned all night to go squirrel hunting and I had told Mr. Houston Childress I was going squirrel hunting. So I went into the house and got my shotgun and started out to where I had seen the squirrels’ signs. Later on I saw the same car parked in the road again. One man was backed up against the hood of the oar and the other man and the woman were behind the car on the ground in the act of intercourse. I saw them but I did not want to come in contact with them so I went around the car, into the thicket and then on up to my house, and I said to myself “I am going to call the law. Those folks are going to do something to me.” When I got into my car and was coming down the road I found that their car was no longer where I had last seen it. However a little further down the road I heard their car and they were parked to where I could barely get by. Just as I “squeezed” by their car started up — I held the center of the road “and I seen they were driving past and I pulled over and they just whipped over right ahead of me and stopped. ’ ’ I pulled over to the left, and one man jumped out of the car — the driver — and got right in the road said “stop, stop, you goddam son-of-a-bitch. Where are you going?” I said, “I am going to call the law to you all.” He said, “Yeah, you are going to call the law goddam you, don’t you know I am going to kill you?” “Nothing to do but protect my life. This other man said, ‘kill the son-of-a-bitch, kill him.’ He got up and I don’t know whether it was a two-door or a four-door, and he came up and stuck his head over the front seat of the car and I shot them both.” On cross examination appellant admitted to Sheriff Courson that he killed the deceased.
On November 5, appellant made and signed a written confession but it does not differ in any material way from his testimony as set forth above.
The testimony shows that the two white men and the Negro woman had with them in the car several cans of beer, some of which had been opened and some had not.
This court has on many occasions had the opportunity to consider the importance of the elements of premeditation and deliberation in connection with murder in the first degree. In the early case of Burris v. State, 38 Ark. 221, this court said: “. . . , in order to convict the defendant of murder in the first degree, it is not sufficient to barely prove the killing. The State must also prove, beyond a reasonable doubt, that the killing Avas done willfully, deliberately, maliciously, and with premeditation of mind.” It Avas said in Simpson v. State, 56 Ark. 8, 19 S. W. 99: “An unlawful killing may be presumed murder, but it will not be presumed murder in the first degree. The burden of proving it so lies on the Commonwealth.” The court in the case of Ferguson v. State, 92 Ark. 120, 122 S. W. 236, announced the rule this AAmy:
“When the fact of death alone is proved, the presumption is that the crime is murder in the second degree ; and, before it can be determined that the crime is murder in the first degree, it is incumbent on the prosecution to prove further, by evidence, that the killing was done with premeditation and deliberation. The premeditation cannot be inferred from the fact of death, but there must be evidence of a prior intention to do the act of killing in question.”
In the case of Harris v. State, 119 Ark. 85, 177 S. W. 421, the appellant was convicted of murder in the first degree and this court reduced it to murder in the second degree. Appellant, a Negro, was at a party or dance when trouble arose, a fight ensued and he killed one Johnny Daniels.
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Paul Ward, Associate Justice.
Appellant, a Negro man 63 years old, was convicted of murder in the first degree for the slaying of George Wells on the early morning of October 20, 1956. The deceased and another white man named Fred Watkins were discovered by appellant in a car with a Negro woman, Hattie Mae Williams, parked near the house where appellant and his family lived. Circumstances later developed left no doubt that the white men and the Negro woman were engaging in a prolonged orgy of drinking and immoral conduct.
When appellant approached the car one of the men called him a revolting name and when he started to return to his house he was again accosted by one of the white men. Thereupon the parties in the car drove away and appellant, so he says, thought they had left. Appellant then got his shotgun and started to hunt squirrels (he says) but in a short while he discovered the same three people parked by the side of the road approximately one-half mile from appellant’s home. There he saw one of the men and the Negro woman engaged in sexnal intercourse. Appellant decided that he was going to call the law and returned to his home and got his automobile in order to drive to the nearest telephone. In going to the telephone it was necessary for him to pass along that portion of the road where he had last seen the people above mentioned. % Finding the party car at or near where he had just previously left it, appellant drove by. As he proceeded along the road the other car forced him to stop. Again there was abusive and threatening language and appellant shot the deceased.
When shotgun shells picked up at the scene of the shooting were found to match appellant’s shotgun he admitted to the sheriff that he had killed the deceased and also the other white man and the Negro woman. Later he signed a written confession which was introduced in evidence and is contained in the record. Appellant also took the witness stand in his own behalf. More than a half dozen witnesses some of whom had known appellant for a quarter of a century and among whom there were a school teacher, a groceryman, a contractor and a farmer, testified that he had a good reputation as being a quiet and peaceable citizen and “a good man in the community.”
For a reversal or modification of the judgment of the trial court appellant makes one primary contention, and that is that there is no substantial testimony in the record to show that the slaying of George Wells by appellant was done with deliberation and premeditation. After a careful review of all of the testimonjr in the record and of the many decisions of this court relative to the point in issue we have concluded that appellant is right in his contention.
There is no testimony of any witness, aside from the testimony of appellant in open court and his written confession, from which the jury could have found the existence of premeditation and deliberation. Neither do we find any circumstance which amounts to substantial evidence upon which a finding of premeditation and deliberation eonld be based. Consequently we are led to conclude that the jury must have resorted to speculation rather than substantial evidence in arriving at a verdict of murder in the first degree.
Appellant testified in substance: I live about three miles southwest of Crossett on the Sulphur Springs road. On the early morning of October 20, 1956 I heard a noise and saw a car parked on the road near my garden. "When I was within 14 or 15 feet of the car a man jumped out and said: “Hey, where in the hell you going, you goddam son-of-a-bitch, don’t come any farther. Co back. ’ ’ I was returning to my house when the man said “you son-of-a-bitch, you come out here,” but I did not do so. There were three people in the car and I could tell one was a colored woman. When the car drove off in the direction of Crossett I thought they were gone. I had planned all night to go squirrel hunting and I had told Mr. Houston Childress I was going squirrel hunting. So I went into the house and got my shotgun and started out to where I had seen the squirrels’ signs. Later on I saw the same car parked in the road again. One man was backed up against the hood of the oar and the other man and the woman were behind the car on the ground in the act of intercourse. I saw them but I did not want to come in contact with them so I went around the car, into the thicket and then on up to my house, and I said to myself “I am going to call the law. Those folks are going to do something to me.” When I got into my car and was coming down the road I found that their car was no longer where I had last seen it. However a little further down the road I heard their car and they were parked to where I could barely get by. Just as I “squeezed” by their car started up — I held the center of the road “and I seen they were driving past and I pulled over and they just whipped over right ahead of me and stopped. ’ ’ I pulled over to the left, and one man jumped out of the car — the driver — and got right in the road said “stop, stop, you goddam son-of-a-bitch. Where are you going?” I said, “I am going to call the law to you all.” He said, “Yeah, you are going to call the law goddam you, don’t you know I am going to kill you?” “Nothing to do but protect my life. This other man said, ‘kill the son-of-a-bitch, kill him.’ He got up and I don’t know whether it was a two-door or a four-door, and he came up and stuck his head over the front seat of the car and I shot them both.” On cross examination appellant admitted to Sheriff Courson that he killed the deceased.
On November 5, appellant made and signed a written confession but it does not differ in any material way from his testimony as set forth above.
The testimony shows that the two white men and the Negro woman had with them in the car several cans of beer, some of which had been opened and some had not.
This court has on many occasions had the opportunity to consider the importance of the elements of premeditation and deliberation in connection with murder in the first degree. In the early case of Burris v. State, 38 Ark. 221, this court said: “. . . , in order to convict the defendant of murder in the first degree, it is not sufficient to barely prove the killing. The State must also prove, beyond a reasonable doubt, that the killing Avas done willfully, deliberately, maliciously, and with premeditation of mind.” It Avas said in Simpson v. State, 56 Ark. 8, 19 S. W. 99: “An unlawful killing may be presumed murder, but it will not be presumed murder in the first degree. The burden of proving it so lies on the Commonwealth.” The court in the case of Ferguson v. State, 92 Ark. 120, 122 S. W. 236, announced the rule this AAmy:
“When the fact of death alone is proved, the presumption is that the crime is murder in the second degree ; and, before it can be determined that the crime is murder in the first degree, it is incumbent on the prosecution to prove further, by evidence, that the killing was done with premeditation and deliberation. The premeditation cannot be inferred from the fact of death, but there must be evidence of a prior intention to do the act of killing in question.”
In the case of Harris v. State, 119 Ark. 85, 177 S. W. 421, the appellant was convicted of murder in the first degree and this court reduced it to murder in the second degree. Appellant, a Negro, was at a party or dance when trouble arose, a fight ensued and he killed one Johnny Daniels. This court in recognizing that premeditation was an indispensable element of murder in the first degree stated that it need not exist for any particular length of time, but that it must be shown to exist. The court also took into account the element of provocation, stating: “True, the provocation was not sufficient to justify the extreme measures to which appellant resorted, and it was not sufficient to reduce the killing from murder to manslaughter; but it was sufficient to reduce the homicide from murder in the first degree to that of second degree.” Provocation to a considerable degree was present in the case under consideration.
This court in the case of Stanley v. State, 183 Ark. 1093, 40 S. W. 2d 415, again reduced a conviction for murder in the first degree to second degree, giving as the principal reason that “the killing appears to have been the result of a sudden affray or row provoked and brought on by the deceased in the serving of appellant with a bowl of chili that he had ordered.” There was a conflict in the testimony regarding how the killing occurred but the court took the view that it was one continuous difficulty and altercation, provoked by the deceased. In the case under consideration we adopt the language which the court used in reaching its decision in the Stanley case, to-wit: “(We) have concluded that, under the circumstances and according to the undisputed testimony the killing could not have been murder in the first degree, and that the evidence is insufficient to support a conviction for a greater offense than murder in the second degree . . .”
In the case of Blake v. State, 186 Ark. 77, 52 S. W. 2d 644, the court considered the conviction of appellant for murder in the first degree and reduced it to murder in the second degree. Blake was a tenant on the farm of Brad Polk and a difficulty arose between them regarding an accounting! The testimony showed that there had been a disagreement and there was also testimony that threats had been made. The killing was not disputed. The facts regarding the issue here considered are, we think, comparable to the case under consideration. In reducing the degree of the conviction,' the court said: “We have concluded that, while this testimony is sufficient to support a verdict of murder in the second degree, it is not sufficient to support a verdict of murder in the first degree. We think there is lacking that deliberation and premeditation required-to constitute the higher degree of murder.”
We think the facts set forth in the case of Porchia v. State, 196 Ark. 1039, 120 S. W. 2d 700, are as favorable to sustain the verdict of murder in the first degree as they are in the case under consideration. The appellant, a Negro, was convicted of murder in the first degree for killing a white man. The evidence shows that the deceased had been drinking and that he overtook appellant as he was walking along the road. An altercation ensued in which the deceased knocked the appellant down and the appellant wounded him fatally with his knife-. The court said that the only question to be determined was whether the act was premeditated and in holding that it was not this language was used: ‘ ‘ While ordinarily malice is to be implied from the nature of a homicidal transaction and the circumstances attending its commission, yet in the instant case the state’s testimony tends to show that premeditation and deliberation were absent.” Again we think that the language there used in announcing its conclusion is applicable in the case under consideration. The court said: “It is our belief that the ends of justice insofar as penalties can satisfy or appease justice will be met by a sentence confining penalties can satisfy or appease justice will be met by a sentence confining .appellant in the penitenriary for 21 years.” Likewise the language used by this court in Gulley v. State, 201 Ark. 744, 146 S. W. 2d 706, is applicable in the case here considered, where it said: “We think the evidence falls short of showing beyond reasonable doubt that appellant went to James Williams’ home with the intent of killing Louis White.” Neither can we say with confidence that appellant here had any intention of killing the deceased when he got in his car and started to inform the sheriff. In the case of McClendon v. State, 197 Ark. 1135, 126 S. W. 2d 928, we affirmed that it is necessary to “show beyond a reasonable doubt that the killing was the result of malice,” and then the court said: “Certainly it does not show beyond a reasonable doubt that it was the result of deliberation and premeditation.” In that case appellant had seized an as and hit the deceased on the head causing his death. The court, in reducing his conviction of murder in the first degree to second degree apparently relied on the fact that the killing was the result of a difficulty that arose suddenly and continued until the fatal blow was struck, and that the appellant and the deceased, had theretofore been friends.
It is obvious that the line of demarcation in many cases, as in the case under consideration, between deliberation and the lack of deliberation is not easily discernible. It is a safe rule that deliberation must be proven, and beyond a reasonable doubt. In our opinion there is no direct testimony in this case to support the finding that appellant shot the deceased after deliberation and premeditation. Also there is no circumstance which is inconsistent with the direct proof. We are especially impressed by the fact that if appellant had wanted to or had intended to kill the deceased he would have done so when he encountered him the second time. Appellant had his shotgun at that time and he found the deceased in a relationship with the Negro woman which was calculated to infuriate him to the extreme. If appellant had wanted or intended to kill the deceased we can think of no better opportunity for him to have done so than he had at that time. The mere fact that he did not (but went home to get his car so he could drive to a telephone and call the sheriff) necessarily negatives the assumption that appellant got his shotgun, in the first instance, with premeditation and murder in his heart. If the jury concluded appellant was lying about going to call the sheriff, then such conclusion rested on mere conjecture because there is no testimony in the record to sustain it. As we view the record there is no testimony or circumstance to show (and certainly not to show beyond a reasonable doubt) that premeditation and deliberation were present in the mind of appellant when he fired the fatal shot.
Since the evidence is sufficient to support a verdict for murder in the second degree, the judgment will be so modified and appellant’s punishment fixed at 21 years in the penitentiary, and, as so modified, the judgment of the trial court is affirmed.
Justices MoFaddin, Smith and Robinson dissent.