. . . [M]ere threats or menaces, where the person killed was unarmed and neither committing nor attempting to commit violence on the defendant at the time of the killing, will not free him of the guilt of murder. 310 Ark. at 423, 837 S.W.2d at 455 (quoting Wooton v. State, 232 Ark. 300, 337 S.W.2d 651 (1960)). However, the court explained further that "adequate provocation can occur when the victim is armed or is attempting to commit violence toward the defendant."

[P]assion springing from anger, resentment, fear, or terror will not alone reduce a homicide from murder to manslaughter; there must be a provocation inducing the passion such as physical fighting, a threat, or a brandished weapon which makes the passion irresistible.Spann, 328 Ark. at 514-15, 944 S.W.2d at 540, quoting from Rainey v. State, 310 Ark. at 423, 837 S.W.2d at 455, quoting Wooton v. State, 232 Ark. 300, 337 S.W.2d 651 (1960). [4] Despite feelings of individuals who are suffering marital discord, the frustration, anger, and resentment that can result fails to constitute, on its own, a rational basis for giving an instruction on voluntary manslaughter.

An assault with violence upon another who acts under the influence thereof may be sufficient to arouse such passion.Rainey v. State, 310 Ark. at 423, 837 S.W.2d at 455, quoting Wootton v. State, 232 Ark. 300, 337 S.W.2d 651 (1960). [6] In the present case, there was proof of intense anger on the part of Spann after the victim, who purportedly had been drinking, accused Spann's son of theft and demanded retribution from Spann.

There is a substantial difference between the emotional effect of being teased and being threatened with a gun. In Wootton v. State, 232 Ark. 300, 337 S.W.2d 651 (1960), quoting from Clardy v. State, 96 Ark. 52, 131 S.W. 46 (1910), the following obiter dictum appears: The passion that will reduce a homicide from murder to manslaughter may consist of anger or sudden resentment, or of fear or terror; but the passion springing from any of these causes will not alone reduce the grade of the homicide.

on to assert reversible error in giving the instruction on first degree murder because the state failed to prove him guilty of first degree murder beyond a reasonable doubt, when the jury completely agreed with him on that point and he stands acquitted of the charge of first degree murder by the jury verdict of guilty on the lesser charge of second degree murder. Easley v. State, 109 Ark. 130, 159 S.W. 36; Carlton v. State, 109 Ark. 516, 161 S.W. 145; Paul v. State, 125 Ark. 209, 188 S.W. 555; Wilson v. State, 126 Ark. 354, 190 S.W. 441; Hays v. State, 129 Ark. 324, 196 S.W. 123; Jordan v. State, 141 Ark. 504, 217 S.W. 788; Witham v. State, 149 Ark. 324, 232 S.W. 437; Bird v. State, 154 Ark. 297, 242 S.W. 71; Williams v. State, 162 Ark. 285, 258 S.W. 386; Sullivan v. State, 163 Ark. 353, 258 S.W. 980; Daniels v. State, 182 Ark. 564, 32 S.W.2d 169; Mustain v. State, 189 Ark. 887, 75 S.W.2d 800; Bone v. State, 200 Ark. 592, 140 S.W.2d 140; Edwards v. State, 208 Ark. 231, 185 S.W.2d 556; Wootton v. State, 232 Ark. 300, 337 S.W.2d 651. Brewer has certainly shown no prejudice to his substantial rights by the information and the instructions thereon in the case at bar.

We can only say that there is substantial evidence to support the verdict when it is viewed in the light most favorable to the state, and this is the extent of the scope of our review. Slinkard v. State, 193 Ark. 765, 103 S.W.2d 50; Higgins v. State, 204 Ark. 233, 161 S.W.2d 400; Ashcraft v. State, 208 Ark. 1089, 189 S.W.2d 374; Wootton v. State, 232 Ark. 300, 337 S.W.2d 651; Finley v. State, 233 Ark. 232, 343 S.W.2d 787; Ballew v. State, 246 Ark. 1191, 441 S.W.2d 453. It would serve no useful purpose to detail all the testimony of all the witnesses.

Johnson v. United States, 370 F.2d 495 (9th Cir. 1966). In any event the defendant, having been convicted of second-degree murder, was not prejudiced by the "lying in wait" instruction, which we recently considered in detail in State v. Brooks, 103 Ariz. 472, 445 P.2d 831 (1968); Walker v. People, 126 Colo. 135, 248 P.2d 287 (1952); State v. Goettina, 61 Wyo. 420, 158 P.2d 865 (1945); 41 C.J.S. Homicide § 427, para. d; Viliborghi v. State, 45 Ariz. 275, 43 P.2d 210 (1935); Wootton v. State, 232 Ark. 300, 337 S.W.2d 651 (1960); State v. Aubuchon, 394 S.W.2d 327 (Mo. 1965); Ruffin v. State, 11 Terry 83, 50 Del. 83, 123 A.2d 461 (1956). Any error is cured by the acquittal of first-degree murder.

The plaintiff's only pertinent objection was to "all instructions given." Some of the instructions were correct; so this en masse objection is unavailing. Wootton v. State, 232 Ark. 300, 337 S.W.2d 651. Counsel also relied upon Ark. Stat. Ann. 81-101 and -108 (Repl. 1960) in requesting the court to tell the jury that if Boatright (though not Richison's employer) had control of the laying of the roofing felt it was his duty to furnish the plaintiff a safe place to work.

[M]ere threats or menaces, where the person killed was unarmed and neither committing nor attempting to commit violence on the defendant at the time of the killing, will not free him of the guilt of murder. 310 Ark. at 423, 837 S.W.2d at 455 (quoting Wootton v. State, 232 Ark. 300, 337 S.W.2d 651 (1960)). The Rainey court explained further, however, that "adequate provocation can occur when the victim is armed or is attempting to commit violence toward the defendant."

the killing, will not free him of the guilt of murder.310 Ark. at 423, 837 S.W.2d at 455 (quoting Wootton v. State, 232 Ark. 300, 337 S.W.2d 651 (1960) ). The court explained further, however, that “adequate provocation can occur when the victim is armed or is attempting to commit violence toward the defendant.”