Cockriee, C. J.
1. Right of escaped felon,
The appellant had been legally sen tencecL to the penitentiary tor a ielony, and beiore Ins term had expired the warden of the penitentiary permitted him to leave the prison without a guard and go into the city of Little Rock, where he was recognized as a convict by a policeman named Copeland, who attempted to arrest him for the purpose of returning him to the prison authorities. The officer had no warrant for the convict’s arrest, the latter resisted, and in the rencounter the officer was killed.
The appellant was indicted for murder in the first degree, and was convicted of that grade of offense. He complains of the following part of the court’s charge to the jury, viz: “The court instructs the jury that if they find that defendant was a convict at the time of the killing of' Copeland, and was, out of the walls of the penitentiary without a guard, and going at liberty within the corporate limits of the city of Little Rock, and that Copeland was a police officer of said city, that Copeland had - the right and it was his duty to arrest the defendant.”
He also complains because the court refused to charge the jury that if they found that he was at liberty by the consent of'the prison warden, the officer ha'd no authority to arrest him without a warrant, and that if he killed the officer in resisting arrest under such circumstances, his offense would be no more than manslaughter. The only question of law arising upon the charge 'is thus presented.
A difference of opinion has been expressed upon the question whether an officer can re-arrest one whom he has held by virtue of a warrant of arrest and voluntarily liberated.
It may be that the divergence occurs only where the charge is a misdemeanor ; but, however that may be, we find no principle sustaining the position that an officer may not, without a warrant, legally arrest an escaped felon to restore him to prison, that the sentence of the law may be executed, whether the felon has escaped with or without the consent of his jailer. He may arrest without warrant one whom he has reason to believe has committed a felony, in order that he may be convicted if guilty ; and it would be anamolous if the authority is not equally as broad to bring a convicted felon to punishment.
A voluntary release of a convict from imprisonment by a warden or other person having legal custody of him is illegal, and the convict is an escaped felon so long as he is at liberty. The warden’s guilty consent to his escape cannot abrogate the judgment of conviction and legalize his liberty for an hour or any other 'length of time. Griffin v. State, 37 Ark. 437 ; Martin v. State, 32 id. 124. To hold that it could would be to recognize in him a limited power of pardon which the law has vested in the Governor exclusively.
The controlling question is not whether the convict is guilty of a felony (which of itself might subject him to re-arrest) in leaving the prison with the warden’s consent, intending to return ; but it is whether he is legally at liberty. If he is not, any peace officer may arrest him, without a warrant, to restore him to the imprisonment to which the court has sentenced him. 1 Bish. Cr. Pr. sec. 163 and n. 2; id. secs. 1382-3 ; Crocker on Sheriffs, secs. 74 and 597 ; Schwamble v. Sheriff, 22 Pa. St. 18 ; Clark v. Cleveland, 6 Hill, 344 ; Gano v. Hall, 42 N. Y. 67 ; Haggerty v. People, 53 id. 476 ; State v. Holmes, 48 N. H. 377 ; Com. v. Carey, 12 Cush. 246.
The complaint against the charge of the court is without foundation.
The other assignments of- error made by the appellant are not sustained by the record, and need not therefore be noticed. The motion for a new trial, however, challenges the evidence as insufficient to sustain a sentence of murder in the first degree, and that question has given us much concern.
As death ensued in an unlawful attempt to escape or to resist lawful arrest, and there was no evidence of mitigating circumstances, the jury could not consistently have reached any conclusion other than that the killing was murder. But there are two grades of murder, and a premeditated intention or a specific intent to take life is an indispensable ingredient of murder in the first degree. Bivens v. State, 11 Ark. 455. “ 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.” Johnson v. Commonwealth, 24 Pa. St. 386. As was said by Judge Agnew in administering the Pennsylvania law, which is similar to ours : ‘‘If, from all the facts attending the killing, the jury can fully, reasonably and satisfactorily infer the existence of the intention to kill, and the malice of heart with which it was done, they will be warranted in so doing. He who uses upon the body of another, at some vital part, with a manifest intention to use it upon him, a deadly weapon, as an axe, a gun, a knife or pistol, must, in the absence of qualifying facts, be presumed to know that his blow is likely to kill ; and, knowing this, must be presumed to intend the death which'is the probable and ordinary consequence of such an act.” Commonwealth v. Drum, 58 Pa. St. 9.
But, in the absence of other proof, one is presumed to intend only the probable or ordinary consequence of his act ; and if death is the consequence of an act that would not probably or reasonably produce that result, malice, it may be, is presumed from the fact of killing, but there is no presumption of a deliberate purpose to kill. The presumption can be raised only as a legitimate inference from facts or circumstances in proof. Presumptions of fact must rest upon fact, and not upon surmises or guesses at what is not proved. In this case there was no eye witness to the homicide. The defendant testified in his own behalf, and admitted that he had resisted the officer and made his escape, but denied striking the fatal blow or any blow with a stick or like weapon. The jury were warranted, however, in finding that he struck the fatal blow.
But what was the evidence that the killing was premeditated ? A brief outline of the case has been given already. The statement of the details will be left to the reporter.
The character of the wounds, the conduct of the prisoner in using the knife, his contradictory statements, his motive for resisting the officer and his subsequent flight constitute the leading features of the evidence against him. There is nothing in either the third, fourth or fifth heads which can of itself be said to prove the specific intent. They can only be used to throw light upon other facts in proof and aid in extracting the truth from them. If no inference of a specific intent can be drawn from the other facts, the prisoner’s motive and the fact of flight will not warrant the inference ; and his contradictory statements only tend to prove that he struck the fatal blow. What evidence did the wounds themselves disclose ?
A blow upon the-back of the head caused the death. It was inflicted apparently with a round stick. The skull was not fractured, but a blood vessel was ruptured, and that caused death. Wé know nothing else in reference to the blow. It is not even shown that it broke the skin.
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Cockriee, C. J.
1. Right of escaped felon,
The appellant had been legally sen tencecL to the penitentiary tor a ielony, and beiore Ins term had expired the warden of the penitentiary permitted him to leave the prison without a guard and go into the city of Little Rock, where he was recognized as a convict by a policeman named Copeland, who attempted to arrest him for the purpose of returning him to the prison authorities. The officer had no warrant for the convict’s arrest, the latter resisted, and in the rencounter the officer was killed.
The appellant was indicted for murder in the first degree, and was convicted of that grade of offense. He complains of the following part of the court’s charge to the jury, viz: “The court instructs the jury that if they find that defendant was a convict at the time of the killing of' Copeland, and was, out of the walls of the penitentiary without a guard, and going at liberty within the corporate limits of the city of Little Rock, and that Copeland was a police officer of said city, that Copeland had - the right and it was his duty to arrest the defendant.”
He also complains because the court refused to charge the jury that if they found that he was at liberty by the consent of'the prison warden, the officer ha'd no authority to arrest him without a warrant, and that if he killed the officer in resisting arrest under such circumstances, his offense would be no more than manslaughter. The only question of law arising upon the charge 'is thus presented.
A difference of opinion has been expressed upon the question whether an officer can re-arrest one whom he has held by virtue of a warrant of arrest and voluntarily liberated.
It may be that the divergence occurs only where the charge is a misdemeanor ; but, however that may be, we find no principle sustaining the position that an officer may not, without a warrant, legally arrest an escaped felon to restore him to prison, that the sentence of the law may be executed, whether the felon has escaped with or without the consent of his jailer. He may arrest without warrant one whom he has reason to believe has committed a felony, in order that he may be convicted if guilty ; and it would be anamolous if the authority is not equally as broad to bring a convicted felon to punishment.
A voluntary release of a convict from imprisonment by a warden or other person having legal custody of him is illegal, and the convict is an escaped felon so long as he is at liberty. The warden’s guilty consent to his escape cannot abrogate the judgment of conviction and legalize his liberty for an hour or any other 'length of time. Griffin v. State, 37 Ark. 437 ; Martin v. State, 32 id. 124. To hold that it could would be to recognize in him a limited power of pardon which the law has vested in the Governor exclusively.
The controlling question is not whether the convict is guilty of a felony (which of itself might subject him to re-arrest) in leaving the prison with the warden’s consent, intending to return ; but it is whether he is legally at liberty. If he is not, any peace officer may arrest him, without a warrant, to restore him to the imprisonment to which the court has sentenced him. 1 Bish. Cr. Pr. sec. 163 and n. 2; id. secs. 1382-3 ; Crocker on Sheriffs, secs. 74 and 597 ; Schwamble v. Sheriff, 22 Pa. St. 18 ; Clark v. Cleveland, 6 Hill, 344 ; Gano v. Hall, 42 N. Y. 67 ; Haggerty v. People, 53 id. 476 ; State v. Holmes, 48 N. H. 377 ; Com. v. Carey, 12 Cush. 246.
The complaint against the charge of the court is without foundation.
The other assignments of- error made by the appellant are not sustained by the record, and need not therefore be noticed. The motion for a new trial, however, challenges the evidence as insufficient to sustain a sentence of murder in the first degree, and that question has given us much concern.
As death ensued in an unlawful attempt to escape or to resist lawful arrest, and there was no evidence of mitigating circumstances, the jury could not consistently have reached any conclusion other than that the killing was murder. But there are two grades of murder, and a premeditated intention or a specific intent to take life is an indispensable ingredient of murder in the first degree. Bivens v. State, 11 Ark. 455. “ 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.” Johnson v. Commonwealth, 24 Pa. St. 386. As was said by Judge Agnew in administering the Pennsylvania law, which is similar to ours : ‘‘If, from all the facts attending the killing, the jury can fully, reasonably and satisfactorily infer the existence of the intention to kill, and the malice of heart with which it was done, they will be warranted in so doing. He who uses upon the body of another, at some vital part, with a manifest intention to use it upon him, a deadly weapon, as an axe, a gun, a knife or pistol, must, in the absence of qualifying facts, be presumed to know that his blow is likely to kill ; and, knowing this, must be presumed to intend the death which'is the probable and ordinary consequence of such an act.” Commonwealth v. Drum, 58 Pa. St. 9.
But, in the absence of other proof, one is presumed to intend only the probable or ordinary consequence of his act ; and if death is the consequence of an act that would not probably or reasonably produce that result, malice, it may be, is presumed from the fact of killing, but there is no presumption of a deliberate purpose to kill. The presumption can be raised only as a legitimate inference from facts or circumstances in proof. Presumptions of fact must rest upon fact, and not upon surmises or guesses at what is not proved. In this case there was no eye witness to the homicide. The defendant testified in his own behalf, and admitted that he had resisted the officer and made his escape, but denied striking the fatal blow or any blow with a stick or like weapon. The jury were warranted, however, in finding that he struck the fatal blow.
But what was the evidence that the killing was premeditated ? A brief outline of the case has been given already. The statement of the details will be left to the reporter.
The character of the wounds, the conduct of the prisoner in using the knife, his contradictory statements, his motive for resisting the officer and his subsequent flight constitute the leading features of the evidence against him. There is nothing in either the third, fourth or fifth heads which can of itself be said to prove the specific intent. They can only be used to throw light upon other facts in proof and aid in extracting the truth from them. If no inference of a specific intent can be drawn from the other facts, the prisoner’s motive and the fact of flight will not warrant the inference ; and his contradictory statements only tend to prove that he struck the fatal blow. What evidence did the wounds themselves disclose ?
A blow upon the-back of the head caused the death. It was inflicted apparently with a round stick. The skull was not fractured, but a blood vessel was ruptured, and that caused death. Wé know nothing else in reference to the blow. It is not even shown that it broke the skin. A light blow at the base of the brain may, without a break of the skin, rupture a blood vessel, which in due course of time may produce paralysis of speech, and afterwards stupor, and finally death — just the effects the proof shows upon the deceased in this case. But death is not the probable or ordinary consequence of striking a light blow, and proof of inflicting it does not therefore raise a presumption of the deliberate purpose to kill unless it is made to appear that it was probably given with that intent. But there is no proof in the case that it was, outside of the fact of death which, as we have seen, is not in itself sufficient. A blow similar to the one already described was inflicted upon the temple of the deceased, but it was not delivered with force enough to fracture the skull, and the evidence shows that it did not conduce to the death. There is nothing from which we can draw the inference that it was not as severe as the blow on the back of the head. It furnishes as much, but no greater, evidence of the intent to kill than the other wound.
The defendant testified that he struck at the deceased with his pocket knife in his effort to escape, and , a knife wound was found on one of the deceased’s arms. That is the circumstance in the case which has g'iven me trouble. The stealthy and deliberate use of a knife, which the prisoner detailed when on the stand, may have afforded the jury the right to infer that he entertained the specific intent to kill, and, having the existence of the specific intent established in the rencounter in which life was taken, why should it -not be presumed to continue to the striking of the fatal blow ? But the knife used was a pocket knife, the size of which was not proved; the wound inflicted with it was not shown to be of a severe or vicious character ; it is not known that its use preceded the striking of the fatal blow ; and the blow which caused the death would not ordinarily produce that result. For these reasons and from a general view of the testimony, my brother judg-es express the abiding conviction that the prisoner’s design was escape from arrest only and not the taking of life, and that sentence for the first degree of murder cannot be sustained upon the proof which- the record affords. What, then, should be the judgment in the cause ?
O» Ocut6HC6 gfr gree ^pear ed 011
The only error committed is in the excess of the punishment. In other States where statutes authorize the appellate courts to modify the judgments of the circuit courts in criminal cases, the remedy in cases like this is found, not in a new trial, but by reducing the punishment to make it appropriate to murder in the second degree. The courts find no constitutional obstacle to such a practice. State v. Fields, 70 Iowa, 196; State v. McCormick, 27 id. 402; Hogan v. State, 30 Wis. 438-9 ; Johnson v. Com. 24 Pa. St. 386.
In this case the jury have found the prisoner guilty of murder ; but having found a degree of murder which the proof does not warrant, the verdict stands for the offense of murder, and fails as to the degree. It is then as though the jury had found him guilty of murder but failed to assess the punishment. The two degrees of murder are not distinct offenses — they are only statutory regulations of the punishment of the one offense of murder, to be inflicted according to the mental state in which the crime is committed. Thompson v. State, 26 Ark. 323 ; 2 Bish. Cr. Pr. sec. 565.
It is true the statute requires the jury to find the degree of murder; but that is done for the purpose of having them take into consideration the distinguishing features of the two degrees, in order that the prisoner may not be sentenced to capital punishment without a special finding' for the first degree. If their verdict does not show the intention to find the first degree, no sentence for that degree can follow. And if the verdict is “g'uilty as charged, ” no sentence for murder can be pronounced, because, other grades of homicide being charged in the indictment, it is not known that a verdict of murder was intended. Thompson v. State, 26 Ark. sup. ; Curtis v. State, ib. 439; Trammell v. State, ib. 534.
But all murder which is not of the first degree is of the second ; and when there is a verdict for murder and no punishment is assessed by the jury, the prisoner is not prejudiced if the verdict is referred to the lower degree of the offense. It is the established practice under our statute that a new trial shall not be awarded for an error not prejudicial to the prisoner. Hayden v. State, 55 Ark. 342 ; Cline v. State, 51 Ark. 145.
The appellant may therefore be sentenced for-murder in the second degree. The case of Brown v. State, 34 Ark. 232, is authority, if further authority were needed, for such a modification of the punishment. In that case the verdict was for manslaug'hter, without indicating whether it was for voluntary or involuntary manslaughter. The term of imprisonment fixed by the verdict was greater than the highest punishment authorized for involuntary manslaughter. The court modified the judgment of conviction by reducing the punishment to the highest term authorized for involuntary manslaughter.
The Attorney General, on behalf of the State, prefers a conviction for murder in the second degree to a reversal for a new trial.
The sentence for the first degree of murder will be set aside, and the cause remanded to the circuit court with directions to sentence the prisoner for murder in the second degree.
It is so ordered.