Allen v. State
Citation | 174 S.W. 1179 |
Decision Date | 22 March 1915 |
Docket Number | (No. 257.) |
Parties | ALLEN v. STATE. |
Court | Supreme 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: 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:
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