Allen v. State

Citation174 S.W. 1179
Decision Date22 March 1915
Docket Number(No. 257.)
PartiesALLEN v. STATE.
CourtSupreme Court of Arkansas

Appeal from Circuit Court, Miller County; Geo. R. Haynie, Judge.

Tom Allen was convicted of assault with intent to kill, and he appeals. Affirmed.

The appellant was convicted of the crime of assault with intent to kill one Dick Choate, and he has duly prosecuted this appeal.

On the part of the state, there was evidence tending to show that on the night of October 23, 1914, Dick Choate, who was a deputy constable, and John Strange, a special deputy, and Walter Crowell, the regular constable, passed the appellant's restaurant. Crowell went around to the back door and saw the appellant let a negro, named Tom Crump, have some whisky. Crump was intoxicated, and Crowell arrested him and found a bottle of whisky upon his person. He took Crump to jail, which was about 50 or 60 feet from appellant's restaurant. While he was in the jail, he directed his deputy, Choate, to arrest appellant. Crowell could see appellant from the jail door locking up his restaurant. The next thing Crowell knew, he heard two shots, close together. He unlocked the jail door, and when he got outside he saw a scuffle between appellant and one Coleman and his deputy, Choate. Coleman was lying on his back, appellant was on top of him, and Choate was over both of them. Appellant had hold of Choate's gun. Crowell, the constable, threw his gun on appellant and demanded of him to turn Choate's gun loose. He did so, and grabbed for Crowell's gun. The reports of the first two shots that were fired were the reports of a small pistol, and the last two were loud reports. Crowell did not notice, before he lodged appellant in jail, that appellant had been shot, but appellant was bloody. Crowell had had a warrant that morning for appellant. Appellant was searched at the jail, and two pocket knives and some money were found on his person. Choate testified for the state: That he arrested the appellant on the charge of running a "blind tiger." He told him at the time that he had a warrant for him. The appellant asked when he was supposed to have been running a "blind tiger," and witness told him that he would inform him when they got to the jail. Appellant kept pulling back. Jack Coleman, who was accompanying the witness Choate, caught appellant by the right arm, and Choate caught him by the left arm. They had gone about 20 feet from where they started, and appellant kept trying to get his left hand loose. Appellant pulled his pistol with his right hand and fired at the witness. Witness grabbed appellant's wrist, and appellant fired again. Appellant then threw the pistol about ten feet. Witness hit the appellant with his gun while the same was in the scabbard. Witness did not draw his gun until appellant had drawn his. When witness hit appellant with his gun, it went off, and appellant grabbed it, and all three fell together. At the time they fell, witness' gun went off again, and the shot took effect in appellant's jaw. Witness knew appellant before he arrested him. Witness did not, in fact, have a warrant at the time that he arrested appellant. Appellant did not ask the witness to show any warrant.

On behalf of the appellant, the proof tends to show: That he and his wife were on their way to a circus and met Choate and Coleman, who directed appellant to halt. They walked up to appellant, and one of them shoved his hand into appellant's coat pocket and the other slapped him on the side. Appellant said: "Wait a minute. What are you going to do to me?" And one of them answered, "Don't give me none of your head," and hit appellant with a gun. Appellant commenced backing off. They got him about middle ways the street car track, when Mr. Choate hit him again. Appellant was weak from loss of blood, and, when he got up on the sidewalk, Choate hit him again and knocked him from the sidewalk. Appellant then threw up his hands and caught the barrel of Choate's gun, and all three of them fell together. Choate again hit him with the gun, and appellant by that time was "bleeding like a hog." Crowell came up, and the three of them took appellant into the jail. While in the jail, Choate walked up near the edge of the door, pulled his gun out quickly and threw it up to make a shot. Appellant threw his hand up, and the bullet went through one of his fingers and through his jaw. Appellant did not own a gun and had no gun on him that night. The cartridges taken off of him had been taken by appellant out of an old gun that belonged to his boy. Choate and Coleman searched appellant, getting his money and a bottle of whisky. Appellant had no gun with him. Appellant knew Choate, but did not know the man that was with him. He knew Choate was an officer, but Choate did not tell appellant that he had a warrant for him.

Another witness on behalf of appellant testified: That he had a lunch stand across the street, in front of which the trouble occurred. There were about two or three of the shots, and he saw some of them. All of them were fired in the air. The first two seemed to be from a small gun. He did not hear any shot fired in the jail.

The court, on its own motion, instructed the jury as follows:

"Gentlemen of the Jury: This defendant, Tom Allen, is on trial under his plea of not guilty charged with assault with intent to kill, alleged to have been committed upon one Dick Choate. The burden is on the state in this case to prove the defendant's guilt from the evidence beyond a reasonable doubt; and if, after considering all the evidence in the case, you entertain a reasonable doubt as to defendant's guilt, you will give him the benefit of that doubt by an acquittal.

"Now, gentlemen, I will read you the statute under which this indictment was returned, and upon which this defendant is being prosecuted: `Whoever shall feloniously, willfully and with malice aforethought, assault any person with intent to murder or kill, shall administer, or attempt to give any poison or potion, with intent to kill or murder, and their counsellors, aiders and abettors, shall, on conviction thereof, be imprisoned in the penitentiary not less than one nor more than twenty-one years.'

"The intent in this case is one of the most important ingredients of the offense. Before you could convict this defendant of assault with intent to kill, you would have to find from the evidence, beyond a reasonable doubt, that, at the time of the alleged attack by him upon the witness Dick Choate, he had malice in his heart, and that he had a specific intent in his mind at that time to take the life of the witness Dick Choate.

"Now, gentlemen, in this charge there is included two other charges. After considering the question as to the charge of assault with intent to kill — if, after considering all the evidence upon that charge, you entertain a reasonable doubt as to defendant's guilt of the charge of assault with intent to kill — then you will acquit him of that charge, and then next consider the question of whether he is guilty of an assault with a deadly weapon, and this is the statute upon which that charge is to be based: `If any person assault another with a deadly weapon, instrument or other thing, with an intent to inflict upon the person of another a bodily injury where no considerable provocation appears, or where the circumstances of the assault show an abandoned and malignant disposition, he shall be adjudged guilty of a misdemeanor, and, on conviction, shall be fined in any sum not less than fifty nor exceeding one thousand dollars and imprisonment not exceeding one year.'

"If you find from the evidence, in considering this charge, that the defendant is guilty of that charge, then your verdict will be, `We, the jury, find the defendant guilty of an assault with a...

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