Acuff v. State

• Court: Arkansas Supreme Court
• Writing for the Court: HARRIS; BYRD
• Citation: Acuff v. State, 484 S.W.2d 698, 253 Ark. 85 (Ark. 1972)
• Decision Date: 25 September 1972
• Docket Number: No. 5755,5755
• Parties: Troy ACUFF, Appellant, v. STATE of Arkansas, Appellee.

Page 698

484 S.W.2d 698

253 Ark. 85

Troy ACUFF, Appellant, v. STATE of Arkansas, Appellee.

No. 5755.

Supreme Court of Arkansas.

Sept. 25, 1972.

Jeff Duty, Rogers, for appellant.

Ray Thornton, Atty. Gen., by Robert H. Crank, Asst. Atty. Gen., Little Rock, for appellee.

HARRIS, Chief Justice.

Troy Acuff was charged with assault with intent to kill Kenny Bowen. On trial, Acuff was found guilty and his punishment fixed at eighteen months imprisonment in the Arkansas Department of Correction. From the judgment entered in accord with the verdict, appellant brings this appeal. For reversal, it is simply contended that the court should have directed a verdict of not guilty, and the question therefore is whether there was substantial evidence to support the conviction.

Mrs. Roy Deatherage, a resident of Pleasure Heights in Benton County, testified that appellant lived on top of a little hill about 200 feet from the Deatherage home which was located near the foot of the hill. She said that on the evening of September 6, 1971, Acuff drove up to her house and asked for her husband, but the latter had already retired. They talked for a few minutes and the witness stated that Acuff had been drinking and she could smell the odor of alcohol on his breath. While talking, her son, Danny Deatherage and two brothers-in-law, Kenny and David Bowen, ages 15 and 17 respectively, came up and they talked awhile. During the conversation, the boys mentioned that they were going to sleep in the Deatherage car which was parked some distance from the house. ¹ Acuff had some chickens in his pickup truck and asked if they would help unload them, and David went with appellant to his home, helped unload the chickens, came back and went to the car. Mrs. Deatherage retired for the night and subsequently heard shooting coming from the hill near the Acuff chicken pen. 'Well, I just heard some shotgun shots up on the hill, and I wondered, you know, what he was shooting at, Mr. Acuff was shooting at.' She said she thought something was after his chickens and she went outside and commented to the boys that she wondered what Troy was shooting at. She then went back into the house, awakened her husband, and suggested that he 'go see what was wrong with Mr. Acuff'. About that time, she heard one of the boys scream, ran to the door, jerked it open and observed the boys running to the house. She said there were two shotgun blasts while they were running. One shot hit David in the corner of the left eye and one in the forehead.

David testified that after he returned from helping unload appellant's chickens, he got in the back seat of the car, Kenny being in the front seat, heard some shots, and stepped out of the car. The witness stated that he heard three or four shots and then he was struck, and he thought that he heard two shots while he was running to the house. Before being hit, David stated that he saw Acuff standing on top of the hill, firing the gun. ²

Kenny, who never did get out of the car until his brother was shot, corroborated the testimony of David, except that he could not see who was doing the shooting.

Clay Bowen, a part time worker for the sheriff, and a brother of the two Bowen boys, together with Deputy Sheriff Larry Anglin and two other officers, investigated the shooting and made the arrest of appellant. Deputy Sheriff Anglin testified that the shotgun was located in the bedroom; three empty shotgun shells, which had contained #4 shot, were found near the top of the hill. Another shell was found in front of the Acuff home. Anglin stated that Acuff had been drinking. William Fox, a neighbor, testified that some weeks after the shooting he talked with Acuff:

'I was in my yard and Mr. Acuff was in Arthur Lee's yard and there was another gentleman with him, and he motioned for me to come over. And I went over there and he just said, 'Hi,' and I said, 'Well, what the hell happened up here?' And he said, 'Oh, it was an accident.' He says, 'The gun jammed.' He said, 'I must have turned to clear it and it went off."

Ronnie Todd, also a resident of Pleasure Heights, testified that he talked with Acuff subsequent to the shooting:

'Well, he said he didn't know what they was doing if they wasn't stealing gas out of his pick up and that's all he said.'

Acuff testified that on the day in question he had gone to Fayetteville, and on his return stopped at the Deatherage house to get one of the boys to help him unload some chickens; he said that he had drunk about three beers. One of the Bowen boys said that he would help him unload. 'Well, I didn't pay no attention. I never did know the name. It was the biggest boy, the biggest one of the two.' He said that after they unloaded the chickens, he thanked the boy for helping him. He decided he wanted to try his gun because he was going to trade it for a deer gun, and he fired at some cans and an old refrigerator. Acuff said that he fired three shots and then stated:

'I started to reload the gun and it jammed and I turned around to the right a little bit to where the light would shine on my gun and I pulled it back and slammed it up real hard and it went off.'

Appellant emphatically denied any intent to kill, or to injure, anyone, and said that he had never had any trouble with Deatherage or the boys. The law relating to the offense of assault with intent to kill has been stated many times by this court. In Lewis v. State, 209 Ark. 51, 189 S.W.2d 641, this court said:

'One of our most recent cases is that of Craig v. State, 205 Ark. 1100, 172 S.W.2d 256, 257, wherein we said: 'In order to sustain the charge of assault with intent to kill proof of two distinct elements are necessary: (1) a specific intent to take life, and (2) facts which would have been sufficient to have sustained a conviction of murder if death had resulted from the assault. (citing cases) * * * Although the state is required to prove that the defendant actually intended to kill, it need not depend upon declarations made by the defendant to establish such fact. While the intent to kill cannot be implied as a matter of law, it may be inferred from facts and circumstances of the assault, such as the use of a deadly weapon in a manner indicating an intention to kill, or an act of violence which ordinarily would be calculated to produce death, or great bodily harm. In determining whether or not the intent to kill should be inferred, the trier of the facts may properly consider the character of the weapon employed and the way it was used; the manner of the assault and the violence attendant thereon;...