Arkansas Supreme Court

“ The court, of its own motion, gave the following instruction: "The killing being proved, the burden of proving circumstances of mitigation that justify or excuse the homicide shall devolve on the accused, unless by the proof on the part of the prosecution, it is sufficiently manifest that the offense committed only amounted to manslaughter, or that accused was justified or excused in committing homicide." ”

“ The 6th instruction is: "If the jury should believe from the evidence that the provocation was sought by the defendant, it cannot furnish any defense against the charge for a felonious homicide." This instruction is too vague as to what was meant by "provocation," and what was the meaning of "felonious homicide." The only objection to this is its obscurity, which we could not pronounce a decided error, unless it was misleading. ”

“ The 7th instruction is law. It is: Express malice is that deliberate intention of mind unlawfully to take away the life of a human being, which is manifested by external circumstances capable of proof. ”

“ This ox bow is proven by other witnesses to have been an old ox bow, untrimmed, about three-fourths straightened out, and was about five feet long; and that Meyers struck with both hands, advancing on Palmore to do so. Deceased was Mangum's superintendent.
Mangum further stated that the parties clenched and struggled after the pistol was fired the first time. He did not suspect a difficulty until it was too late to prevent it. The second shot was fired while they were clutched and struggling, when deceased threw defendant down, and got up holding Palmore's pistol in his hand. ”

“ For even if a case should occur where stimulants would become absolutely necessary to any person, the administration of them should not be left to the discretion of a barkeeper in a public saloon.
This court has not favored the setting aside of a verdict for mere separation, unless something more than opportunity for undue influence is shown. ”

“ A. J. Taylor testified, on behalf of defendant, that he was present when the difficulty occurred, and after detailing the circumstances attending the interview between Mangum and Palmore, and about Meyers coming up, he says: Palmore turned around and asked Meyers if he had said that he intended to cowhide him. Mr. Meyers said, yes, and I'll substantiate what I said, picking up an ox-bow, at the same time, he advanced on defendant. Palmore stepped back and said, Meyers, don't hit me with that stick. When Meyers got up to him, he struck him a lick with both hands with the bow. ”

“ This testimony was of more importance to defendant, in view of the slight conflict in the testimony as to which was the assailant, the deceased or the prisoner.
The rejection of evidence tending in any degree to aid the jury in determining a material fact is error. 3 J. J. Marsh., 229. It was perfectly competent for Harris to prove that Taylor had told appellant of the threat. The point of inquiry was not whether the threats were made, but what were Palmore's motives. The communication by Taylor to him was a fact in the case proving one of its circumstances. ”

“ This section is not obnoxious to the constitutional objection interposed by appellant, for the act of 1871, from which this section was taken, does not conflict with sections 22, 23, art. V, Constitution of 1868, by embracing more than one subject, and in failing to copy the law, revised or altered, entire. The constitution required singleness of subject, to prevent omnibus bills, by which various distinct schemes could be united in one bill, and the like, and the friends of separate measures be thus united to carry through measures which, alone, could not be passed. ”

“ I'm killed. Judge Mangum told him to come into the house, which he did.
Palmore shortly after, in the manner detailed by this witness, got his pistol from the elder Mr. Ellis and rode off on his mule, flourishing it over his head, saying, He cowhided me, did he?
Pink Harris, for defendant, testified: That Palmore was talking to Judge Mangum about Meyers' threats to cowhide him; that Meyers came and hitched his horses and picked upthe ox-bow after he had hitched the horses, and said to defendant: I will substantiate anything I have said ”