erred in giving instruction in Arkansas

1915Bruder v. State, 110 Ark. 402 ; Pickett v. State, 91 Ark. 570 ; Allison v. State, 74 Ark. 444 . (2) It is also insisted by counsel for the defendant that the court erred in giving instruction No. 6, which is as follows: “The court instructs the jury that the defendant is a competent witness in his own behalf.

1913(Kirby’s Digest, §.1765.) In Allison v. State, 74 Ark. 444 , we said: “The question of whether it is proper to submit to the jury the question of the defendant’s guilt of any particular grade of offense included in the indictment must be answered by considering whether there is evidence which would justify a conviction for that offense.” Under the testimony in this case on behalf of the State, the jury would have been warranted in finding the defendant guilty of at least murder in the second degree.

1945In construing this section, in the case of Harshaw v. State, 94 Ark. 343 , 127 S. W. 745 , this court said: “Appellant contends that the court erred in giving instruction No. 6, which told the jury that the confession of the defendant, accompanied with proof that the offense was committed by some one, will warrant defendant’s conviction.

1945In construing this section, in the case of Harshaw v. State, 94 Ark. 343 , 127 S. W. 745 , this court said: “Appellant contends that the court erred in giving instruction No. 6, which told the jury that the confession of the defendant, accompanied with proof that the offense was committed by some one, will warrant defendant’s conviction.

1939This court in Southwestern Gas & Electric Co. v. Murdock, 183 Ark. 565 , 37 S. W. 2d 100 , said: “Appellant contends first, that the court erred in giving instruction No. 5, because it did not take into consideration the defense of contributory negligence.

1939This court in Southwestern Gas & Electric Co. v. Murdock, 183 Ark. 565 , 37 S. W. 2d 100 , said: “Appellant contends first, that the court erred in giving instruction No. 5, because it did not take into consideration the defense of contributory negligence.

1937We think, however, that it would be better, upon a new trial, to omit said instruction and to give an instruction similar to the one in Hurley v. Gus Blass Co., 191 Ark. 917 , 88 S. W. 2d 850 , where the court instructed the jury as'follows: '“You are instructed that it was the duty of Mrs. Hurley to exercise ordinary and reasonable care for her own safety while in defendant’s store, and if you find that she negligently failed to use reasonable care for her own safety and her failure to use such care, if any, contributed in any degree, however slight, to her injury, then she. cannot recover da

1937We think, however, that it would be better, upon a new trial, to omit said instruction and to give an instruction similar to the one in Hurley v. Gus Blass Co., 191 Ark. 917 , 88 S. W. 2d 850 , where the court instructed the jury as'follows: '“You are instructed that it was the duty of Mrs. Hurley to exercise ordinary and reasonable care for her own safety while in defendant’s store, and if you find that she negligently failed to use reasonable care for her own safety and her failure to use such care, if any, contributed in any degree, however slight, to her injury, then she. cannot recover da

1935Appellant next contends that the court erred in giving instruction No. 1, which is as follows: “You are instructed that words which even amount to abuse and which are violent in their nature cannot justify an assault; and if you find from the testimony in this case that the defendant provoked the deceased by word or act to use violent or abusive language- towards him for the purpose of bringing on a difficulty, and that when the deceased used such words that the defendant did assault the deceased and continued in his hostile demonstrations towards the deceased, and voluntarily pursued him and

1935Appellant next contends that the court erred in giving instruction No. 1, which is as follows: “You are instructed that words which even amount to abuse and which are violent in their nature cannot justify an assault; and if you find from the testimony in this case that the defendant provoked the deceased by word or act to use violent or abusive language- towards him for the purpose of bringing on a difficulty, and that when the deceased used such words that the defendant did assault the deceased and continued in his hostile demonstrations towards the deceased, and voluntarily pursued him and

1935If you find from the evidence in this case that the defendant, Otto Lockhart, at the time of the alleged injury, failed to observe any of the duties required of a driver of an automobile, and the plaintiff Ada Jean Eoss was injured thereby, this would constitute negligence.” It is argued that the language above quoted offends against the rule announced in Coca-Cola Bottling Co. v. Doud, 189 Ark. 986 , 76 S. W. (2d) 87 : “That the driver must have his car under such reasonable control as would enable -him to avoid accidents which might be foreseen by the exercise of ordinary care.” The contenti

1935If you find from the evidence in this case that the defendant, Otto Lockhart, at the time of the alleged injury, failed to observe any of the duties required of a driver of an automobile, and the plaintiff Ada Jean Eoss was injured thereby, this would constitute negligence.” It is argued that the language above quoted offends against the rule announced in Coca-Cola Bottling Co. v. Doud, 189 Ark. 986 , 76 S. W. (2d) 87 : “That the driver must have his car under such reasonable control as would enable -him to avoid accidents which might be foreseen by the exercise of ordinary care.” The contenti

1931This court ruled that the standard for determining whether a minor is guilty of contributory negligence is what one of his age, intelligence, and discretion would do under the same circumstances, in the case of Kansas City Railway Company v. Teater, 124 Ark. 1 , 186 S. W. 294 .

1931This court ruled that the standard for determining whether a minor is guilty of contributory negligence is what one of his age, intelligence, and discretion would do under the same circumstances, in the case of Kansas City Railway Company v. Teater, 124 Ark. 1 , 186 S. W. 294 .

1930In Van Winkle v. Satterfield, 58 Ark. 617 , 25 S. W. 1113 , 23 L.

1930In Van Winkle v. Satterfield, 58 Ark. 617 , 25 S. W. 1113 , 23 L.

1929Appellant cites the case of High v. Sharp, 166 Ark. 424 , 265 S. W. 638 .

1929Appellant cites the case of High v. Sharp, 166 Ark. 424 , 265 S. W. 638 .

1928This is not like the case of Davis v. Scott, 151 Ark. 34 , 235 S. W. 407 , where it was held that it was not necessary to submit to the jury the question of keeping a lookout because the testimony of the engineer that he was keeping a lookout was undisputed and was reasonable and consistent in itself.

1928This is not like the case of Davis v. Scott, 151 Ark. 34 , 235 S. W. 407 , where it was held that it was not necessary to submit to the jury the question of keeping a lookout because the testimony of the engineer that he was keeping a lookout was undisputed and was reasonable and consistent in itself.

1927Wisconsin & Arkansas Lumber Co. v. Standridge, 132 Ark. 535 , 201 S. W. 295 .

1927Wisconsin & Arkansas Lumber Co. v. Standridge, 132 Ark. 535 , 201 S. W. 295 .

1924This also disposes of appellant ’s contention that the court erred in giving instruction- No'. 9,- which told the jury, in the language of the statute, that, where the killing is proved, “the burden of proving mitigating circumstances 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.” It is earnestly insisted that the proof adduced- by the State showed that the offense was not above

1923Co., 141 Ark. 414 .

1922Co. v. Solomon, 123 Ark. 66 ; Lisko v. Uhren, 130 Ark. 111 . ' Appellant’s next contention for a. reversal of the judgment is, that the court erred in giving instruction No. 25, which is as follows: .

1922The first assignment of error is that the court erred in giving instruction No. 10, which is as follows: “You are instructed that the possession of the property recently stolen, without reasonable explanation of that possession, is evidence which goes to you for your consideration, under all the circumstances of the case, to be weighed as tending to show the guilt of one in whose hands such property is found, but such evidence alone does not imperatively impose upon you the duty of convicting, even though it is not rebutted. ’ ’ Counsel for the defendant relies upon the cases of Duckworth v. S

1922The first assignment of error is that the court erred in giving instruction No. 10, which is as follows: “You are instructed that the possession of the property recently stolen, without reasonable explanation of that possession, is evidence which goes to you for your consideration, under all the circumstances of the case, to be weighed as tending to show the guilt of one in whose hands such property is found, but such evidence alone does not imperatively impose upon you the duty of convicting, even though it is not rebutted. ’ ’ Counsel for the defendant relies upon the cases of Duckworth v. S

1922Co. v. Solomon, 123 Ark. 66 ; Lisko v. Uhren, 130 Ark. 111 . ' Appellant’s next contention for a. reversal of the judgment is, that the court erred in giving instruction No. 25, which is as follows: .

1921It is' next insisted that the court erred in giving instruction No. 4, which reads as follows: “You are instructed that while the plaintiff, by entering the services of the defendant as a shot-firer in its mine, assumed all the risks ordinarily incident to that employment, he did not assume any risks arising from the negligence of the defendant, or any one to whom it intrusted its superintending authority, unless it be further shown that the plaintiff was awar.e of such dangers and appreciated the same.” It is contended that the instruction is erroneous upon the authority of Athletic Miming &

1919Carpenter v. State, 62 Ark. 286 , and Taylor v. State, 99 Ark. 576 . (4) It is insisted that the court erred in giving instruction No. 19, which is as follows: “You are instructed if you find from the testimony in the'case, beyond a reasonable doubt, that the defendant and deceased had a fight a day or so before the killing; that the defendant heard that Jim Copass had threatened his life and had been looking for him with a gun, and on that account the defendant at the time and place mentioned in the indictment, armed himself with a pistol, went out to where the deceased was sitting, and shot

1919Carpenter v. State, 62 Ark. 286 , and Taylor v. State, 99 Ark. 576 . (4) It is insisted that the court erred in giving instruction No. 19, which is as follows: “You are instructed if you find from the testimony in the'case, beyond a reasonable doubt, that the defendant and deceased had a fight a day or so before the killing; that the defendant heard that Jim Copass had threatened his life and had been looking for him with a gun, and on that account the defendant at the time and place mentioned in the indictment, armed himself with a pistol, went out to where the deceased was sitting, and shot

1919A similar objection was made in the case of Manasco v. State, 104 Ark. 397 , and the court held that the verbiage of the instruction should have been met with a specific objection. (2) It was also insisted that the court erred in giving instruction No. 12, which reads as follows: “You are instructed that if you find and believe from the evidence in the case, beyond a reasonable doubt, that the defendant, Will McKinney, killed the deceased on account of any real or imaginary grievance, which he might have had against the deceased,.or on account of any threats the deceased might have made agains

1918The instruction is in accordance with the principles of law laid down in Blumenthal v. Bridges, 91 Ark. 212 .

1917Co. v. Hook, 83 Ark. 584 . (2) It is next insisted by counsel for appellant that the court erred in giving instruction No. 4 on the measure of damages.

1917The instruction reads as follows: “If you believe from the evidence that there were other standard veneer machines which would be reasonably safe, and if you find that the machine used was not reasonably safe, then you are instructed that it was the duty of the defendant to have installed a reasonably safe machine or to have so altered and equipped the one used as to have made it reasonably safe.” (2-3) The instruction in the precise language given was erroneous and was so held in the case of Holmes v. Bluff City Lumber Co., 97 Ark. 180 .

1917In the case of Southwestern Telegraph & Telephone Company v. Murphy, 100 Ark. 546 , in construing a statute in all respects similar to the one now under consideration except as to the penalty provided, the court said: “The manifest purpose of the statute is to inflict a penalty on a telephone company, not for negligence or inattention in failing to repair its instrumentalities for supplying service, but for wilful refusal to furnish telephone connections and facilities without discrimination or partiality to all applicants who comply or offer to comply with the rules.

1916Railway Company v. Goolsby, 58 Ark. 401 ; Railway Company v. Henderson, 57 Ark. 402 . (2) We do not think the court erred in giving instruction. numbered 5 complained of, since Parker the driver of appellants’ mules, engaged in their service, was charged with the duty of looking after and taking care of them and being their agent his knowledge of the condition of the mules was their own.

1916Railway Company v. Goolsby, 58 Ark. 401 ; Railway Company v. Henderson, 57 Ark. 402 . (2) We do not think the court erred in giving instruction. numbered 5 complained of, since Parker the driver of appellants’ mules, engaged in their service, was charged with the duty of looking after and taking care of them and being their agent his knowledge of the condition of the mules was their own.

1915Bruder v. State, 110 Ark. 402 ; Pickett v. State, 91 Ark. 570 ; Allison v. State, 74 Ark. 444 . (2) It is also insisted by counsel for the defendant that the court erred in giving instruction No. 6, which is as follows: “The court instructs the jury that the defendant is a competent witness in his own behalf.

1915Bruder v. State, 110 Ark. 402 ; Pickett v. State, 91 Ark. 570 ; Allison v. State, 74 Ark. 444 . (2) It is also insisted by counsel for the defendant that the court erred in giving instruction No. 6, which is as follows: “The court instructs the jury that the defendant is a competent witness in his own behalf.

1912It is next insisted that the court erred in giving instruction No. 5 as follows: “If you find for the plaintiff in his own individual right, you will in a separate finding assess his damages in whatever sum you may believe from the evidence he has been damaged by reason of the loss of the service and companionship he would have received from her, but for the injury complained of in his action.” In support of their contention they rely on the case of Helena Gas Co. v. Rogers, 98 Ark. 413 .