Page:Bone v. State (1940).pdf/5

 against Rome Bone. It has been the long settled rule of this court that where defendant is convicted of a lesser crime than that with which he is charged, he cannot complain of any alleged error in instructions covering a higher degree of crime.

In the comparatively recent case of Sanders v. State, 175 Ark. 61, 296 S.W. 70, the rule is stated as follows: "Neither can appellant complain of the error in the giving of instruction number 9, relative to the offense of rape, since the jury acquitted him of that crime and convicted him of the lesser offense of carnal abuse, in which the questions of resistance and outcry of the female are not involved, and any error committed in the giving of said instruction was harmless. James v. State, 161 Ark. 389, 256 S.W. 372."

This assignment is, therefore, without merit.

(6) Finally, appellants insist that the evidence is not sufficient to support a conviction for second degree murder. After a careful review of the record, we have reached the conclusion that this contention must be sustained.

The record reflects that Mrs. Deaver was killed by a shot from a pistol during an altercation between her husband and the appellants. This unfortunate tragedy occurred on a cotton farm of which her husband, John Deaver, was manager, and where she was engaged in keeping records of weights of cotton picked by a large number of cotton-pickers, both white and black. At the time she had charge of a money box containing some $300 used to pay the cotton-pickers. She was seated at a table under a shade tree in the cotton field. About fifteen inches from her right band, in the money box, rested an automatic pistol which she used to protect the money. She was very proficient in the use of a pistol. A controversy arose between appellants and Mr. Deaver about 15 or 20 feet from the table where Mrs. Deaver was seated. The controversy arose over the manner in which the cotton was being picked and appellants and Mr. Deaver became engaged in a fight. The evidence tends to show that when the controversy arose Moses Bone was