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until the improvements are paid for, and pay all the taxes, present and future, and retain possession of the lot until theamounts due him under the decree are paid; and that each party pay one-half of the costs. Both parties have appealed.
As to the alteration of the counterpart retained by Jones, it is sufficient to say we find from the evidence that it was made by Jones without the consent or knowledge of Hoard, after the execution of the lease. But this does not affect the rights of Jones under the contract actually made by the par. ties, for, the lease being executed in duplicate, there were two leases, and both were originals. Although the alteration of the lease held by Jones annulled that, the lease retained by Hoard was sufficient to sustain the contract of the parties: Lewis v. Payn, 8 Cow. 71; 18 Am. Dec. 427; 1 Taylor on Landlord and Tenant, 8th ed., sec. 165; 1 Wood on Landlord and Tenant, 2d ed., sec. 222, and notes.
As to the third house, which was in the course of construction when this action was brought, it being erected, as we find from the evidence, without the consent of Hoard, and against his protest, Jones is entitled to nothing; and, as to the other. houses, he is entitled to 47 the payment of a sum of money equal to their value at the time when he shall deliver the possession of them to Hoard; and he is entitled to hold the lot and improvements, he paying annually twenty-four dol-lars, as rent, until the first two houses and the fences built: and well dug on the lot shall be fully paid for by Hoard.
The decree of the chancery court is, therefore, reversed, and the cause is remanded for proceedings consistent with this opinion.
ALTERATION OF INSTRUMENTS_LEASE EXECUTED IN DUPLICATE.—Where a lease is executed in duplicate, each party receiving one, both are originals;. the fraudulent alteration of one of them by the party holding it does not destroy his estate under it if the other remains intact: Lewis v. Payn, 8 Cow. 71; 18 Am. Dec. 427, and note.
LANDLORD AND TENANT-IMPROVEMENTS.-As to whether a tenant is en. titled to reimbursement for improvements made upon the leased premises, see Pomeroy v. Lambeth, 1 Ired. Eq. 65; 36 Am. Dec. 33, and pote; King v. Woodruff, 23 Conn. 56; 60 Am. Dec. 625, and note; McQueen v. Chouteatr 20 Mo. 222; 64 Am. Dec. 178; Vaughan v. Cravens, 1 Head, 108; 73 Am. Dec. 163, and note. Improvements of a permanent character made upon land, and attached thereto, without the consent of the owner, by one having no title or interest, become a part of the realty, and vest in the owner of the fee without reimbursement from him: Williams v, Vanderbilt, 145 IIL 238; 36 Am. St. Rep. 486, and note.
Smith V. STATE.
169 ARKANSA8, 132.) NEW TRIAL-CRIMINAL CASES–DISQUALIFICATION OF JUROR.-A person
accused of crime is not entitled to a new trial on the ground that a juror had formed and expressed an opinion before he was selected, it
he was accepted as such juror without examination by the accused. Homicide. – To CONSTITUTE SELF-DEFENSE it need not to be made to appear
that the killing was actually necessary; but to justify the killing, however, the accused, in acting upon the facts as they appear to him, must honestly believe, without fault or carelessness on his part, that the danger is so urgent and pressing that it is necessary to kill his assailant in order to save his own life, or to prevent his receiving a great bodily injury. If there is danger, and his belief of the existence thereof is imputable to negligence, he is not excused, however honest
his belief may be. ARREST FOR MISDEMEANOR – HOMICIDE to Prevent Escape. – A peace
officer may arrest one committing a misdemeanor in his presence with. out a warrant, and, if necessary, orally summon as many persons as he deems necessary to aid him in making the arrest. In making the arrest, or in preventing an escape after the arrest, the officer or person assisting him in obedience to a summons, when resisted by the offender, is not bound to retreat, but may use such physical force as is appar. ently necessary, on the one hand to effect the arrest by overcoming the resistance he encounters, or, on the other hanıl, to subdue the efforts of the prisoner to escape, but he cannot in either case take the life of the accused, or even inflict upon him a great bodily harm, except to
save his own life, or to prevent a like harın to himself. NEW TRIAL.-AFFIDAVITs of JURORS are not admissible to show that the
jury received evidence after they retired to consider their verdict, under a statute providing that a juror cannot be examined to establish any ground for a new trial, except that the verdict was made by lot.
J. P. Clarke, attorney general, and C. T. Coleman, for the appellee.
1133 BATTLE, J. Bud Smith was indicted for voluntary manslaughter, committed by killing John Boyd at Sulphur Springs, in Benton county, in October, 1892. “The evidence adduced at his trial tended to show that the deceased was drinking, and that as he came out of a saloon he gave a *whoop. Sharp, the town marshal, and Poindexter, his deputy, came to where he was, and asked who did the baldooing. The deceased replied that it was he, and they arrested him, and a scuffle ensued, in which the deceased succeeded in getting loose.'” When he had freed himself
‘' from the hands of the officers he immediately attacked the marshal, and knocked him down, and a friend, coming to his assistance, felled the deputy. As soon as the marshal recovered from his fall he fled toward and around a crowd which was looking on, the deceased following. The defendant was then standing on the outskirts of the crowd 13%. whittling with a knife. Sharp, the marshal, in his flight, approached him and said, “I deputize you to help me arrest, Boyd." The defendant made no reply, but moved a step or two toward the marshal, and stopped. The deceased ran up to them with a club or gaspipe, about twenty or twenty-four inches long, in bis hand, and asked the defendant what he had to do with it, and, without waiting for a reply, struck him on the head with the club or gaspipe, and knocked him down, and, as he partially recovered, and before he was erect, struck at him again, and the defendant threw up one hand to ward off the blow, and as he did so stabbed the deceased with a pocketknife in the other. Only one wound was inflicted, and from that the deceased died on the third day. Evidence was also adduced tending to prove that the defendant had never seen the deceased before his arrest by the marshal, and that the deceased threatened to kill him when he was attacking him.
The court instructed the jury, over the objections of the defendant, as to what constitutes murder in the first and second degrees, and defined express and implied malice; and among others, gave the following instructions to the jury, over the objections of the defendant:
"In order to justify the killing on the grounds of selfdefense it must appear from the evidence that the circumstances surrounding the defendant at the time were sufficient to excite the fears of a reasonable person, and that the defendant really acted under the influence of such fears, and not in a spirit of revenge. It must appear that the danger was not only impending, but was so urgent and pressing that, in order to save his own life or to prevent his receiving great bodily injury, the killing of John Boyd was necessary. It must also appear from the evidence, in order to justify the killing, that the defendant had employed all reasonable means within his
power, and consistent with his safety, to avert the necessity of taking life.”
It also gave the following instruction: "The jury are instructed that if the deceased, Boyd, willfully or maliciously disturbed the peace and quiet of the town or village or neighborhood of Sulphur Springs by loud or unusual noises, or by abusive, violent, obscene, or profane language, and sucb
disturbance was committed in the presence of a peace officer, then such peace officer would have authority to arrest him, and summon others to assist him in making such arrest. In making an arrest for the disturbance of the peace, or other misdemeanor, or in attempting to prevent the escape of the person arrested, the officer or person acting under him can exert such physical force as is necessary, on the one hand, to effect the arrest by overcoming the resistance he encounters, or, on the other hand, to subdue the efforts of the prisoner to escape; but he cannot in either case take the life of the accused, or even inflict upon him great bodily harm, except to save his own life, or to prevent great bodily harm to himself.”
The defendant asked, and the court refused, to instruct the jury that a peace officer, or person summoned to assist him, in making an arrest of a criminal for a disturbance of the peace, or other misdemeanor, or in attempting to prevent the escape of the person arrested, is not required to retreat from resistance made to efforts to compel submission to arrest, but may use such force as is apparently necessary to compel such submission, and may if, in an effort to do so, he is assaulted iby the criminal under such circumstances as lead him to believe he is in danger of losing his life or receiving a great bodily injury, repel force with force to the extent of taking the life of the criminal.
Upon the submission of the cause to them the jury found the defendant guilty of voluntary manslaughter, 136 and assessed his punishment at two years' imprisonment in the penitentiary. He filed a motion for a new trial, and stated, as the grounds of the same, among other things, that one of the jurors had formed and expressed an opinion as to his guilt or innocence of the crime whereof he was accused, before he was selected to try him; that the court erred in give ang instructions to the jury over his objections, and in refusing to give others asked for by him; and that the jury received evidence after they retired to consider of their verdict. To sustain the last ground the affidavit of one of the jurors was read, to the effect that, after the jury had retired, and had taken a ballot finding the defendant guilty, Ragg. dale, a juror, detailed certain circumstances of the killing as of his own knowledge. The state read the affidavits of the twelve jurors, saying that they had found the defendant guilty of voluntary manslaughter before Ragsdale said any
thing about what he knew of the facts in the case, and, in arriving at the verdict, were governed solely by the evidence adduced at the trial and the instructions of the court.
The motion was overruled, and the defendant appealed to this court.
When a juror or talesman is placed on the stand to be accepted on a jury in a criminal case, or challenged, either party may ask him whether he has formed or expressed an opinion as to the guilt or innocence of the accused. If both fail to do so the defendant is not entitled to a new trial on the ground that the juror had formed and expressed such an opinion before he was selected. Having failed to avail himself of the means provided by law for obtaining an impartial jury, he has no right to complain of the results of his own negligence: Casat v. State, 40 Ark. 515.
We find nothing in the record in this case, outside of the motion for a new trial, which shows that any juror was asked whether he had any opinion about the guilt or innocence of the defendant; and that there is no error in the refusal of the court to grant a new trial because a juror had formed or expressed an opinion before he was selected to serve on the jury.
The instructions as to what constitutes murder in the first and second degrees, and express and implied malice, should not have been given, but, as the defendant was only accused and convicted of voluntary manslaughter, they were not prejudicial.
The instruction of the court upon the right of self-defense is not correct. It is true that "in ordinary cases of one person killing another in self-defense it must appear that the danger was so urgent and pressing that, in order to save his own life, or to prevent his receiving great bodily injury, the killing of the other was necessary.” But to whom must it appear that the danger was urgent and pressing? According to reason and the weight of authority it must so appear to the defendant. To be justified, however, in acting upon the facts as they appear to him, he must honestly believe, without fault or carelessness on his part, that the danger is so urgent and pressing that it is necessary to kill his assailant in order to save his own life, or to prevent his receiving & great bodily injury. He must act with due circumspection. If there was no danger, and his belief of the existence thereof be imputable to negligence, he is not excused, however honest