Carson v. State

• Court: Arkansas Supreme Court
• Writing for the Court: Holt, J.
• Citation: Carson v. State, 173 S.W.2d 122, 206 Ark. 80 (Ark. 1943)
• Decision Date: 12 July 1943
• Docket Number: 4311
• Parties: Carson v. State

173 S.W.2d 122

206 Ark. 80

Carson v. State

No. 4311

Supreme Court of Arkansas

July 12, 1943

Appeal from Crittenden Circuit Court; Walter N. Killough, Special Judge.

Modified and Affirmed.

Wils Davis and Elton A. Rieves, Jr., for appellant.

Guy E. Williams, Attorney General, and Earl N Williams, Assistant Attorney General, for appellee.

Holt J. The Chief Justice and McFaddin and Knox, JJ., dissent from the modification.

OPINION

Holt, J.

Appellant, G. E. Carson, was charged with assault with intent to kill, convicted of assault with a deadly weapon, and his punishment fixed by the jury at a fine of $ 500 and imprisonment in the county jail for a period of twelve months. The victim of the assault was Herman Spears, deputy prosecuting attorney for Crittenden county.

For reversal appellant contends (1) that the evidence is not sufficient to support the verdict and "is so highly excessive that it evidences passion and prejudice" and (2) that the court erred in refusing his amended motion for a new trial on newly-discovered evidence.

Appellant makes no complaint as to the instructions, and, upon examination, we think they clearly and correctly covered the case.

1. The record discloses that appellant is a married man, 55 years of age, five feet, seven inches tall and weighs 155 pounds. For many years he has been lame and walks with a brace and cane. He owns and operates a farm of 960 acres, about four miles from Turrell, Arkansas. In connection with the farm he operates a small store, the building being twenty by forty feet.

The prosecuting witness, Herman Spears, is 41 years of age, six feet, one inch tall and weighs 175 pounds, with no physical defects. He is deputy prosecuting attorney for Crittenden county and lives at Turrell. He and appellant had been acquainted and friendly for about five years. On October 3, 1942, in company with some Mexican laborers, Mr. Spears went to appellant's store in an effort to adjust certain differences that had arisen between Mr. Carson and the Mexicans for compensation for cotton which they, the Mexicans, had picked for Mr. Carson. Mr. Spears' version of what took place after they entered Mr. Carson's store is fairly abstracted in appellant's brief, from which we quote: "The Mexicans followed me in and the little Carter boy was in there. Mr. Watts, Mr. Aiken, Mr. and Mrs. Carson and some negroes were also there. Mr. Carson was standing in the office in the middle of the store leaning on a board which separates the store from the office and was facing the front. Mrs. Carson was in the east side of the office near the wall. He invited me to come in. His office was open. There is a little gate that goes into his office. I went behind the counter and walked up to about two feet in front of him. I folded my arms in the same manner that he had his and put them on the desk. We exchanged some words about it being a pretty day. I went into detail about what the Mexicans had told me about the cotton they had picked and that he didn't pay them. . . . He said he was not going to pay the Mexicans until he got his samples back from Memphis to see how much they had damaged his cotton, because they had not done the work like they should have. One of the Mexicans had a small book which he started to hand to me, and Mr. Carson made a lurch for it and David (one of the Mexicans) snatched it back and handed it to me. While I was holding the book, I said 'Here is the book, and let's have an understanding about what should be done.' I told him I was not interested in what he was paying them, and he reached over and grabbed the book out of my hand and kicked me in the stomach and the groins, cursing me. When I started to say something, he got his walking cane and hit me like that. I threw up my arm and he was hitting me from my elbow until my arm was black and blue for a week. While he was hitting me over the head, I was backing out. I backed eight or ten steps to a meat box and picked up a butcher knife. Mrs. Carson ran up and put her arms in front of him with her back to me. As she did that, I laid the knife down and started out of the store. Someone spoke and I turned around, and he was fumbling with his pocket and jerked out a pistol and he leveled it at me and said he was going to shoot me. When he got through cursing, I just looked at him until he put the pistol in his pocket and I started out the door. I had taken two or three steps when I felt a stinging sensation on the back of my head, and heard something pop like a pistol shot. Blood was streaming down my face and I didn't know whether I had been shot or hit. I don't think the blow knocked me to the floor. The only sensation I felt about that was the floor coming up. The last thing I remember I was in the car on the outside. Mr. Percy Watts got in the car with me and we went to Dr. McVay's office. I stayed in bed that night, and the next day and the next night." He further testified that appellant cursed him and used violent, vulgar and profane language during the encounter.

Dr. McVay treated appellant immediately following the assault and found one wound a little to the back on the left side of his head and about three inches above his left ear, which appeared to have been caused by a heavy blow. It required five stitches to close the wound.

Two eye witnesses, Percy Watts and a boy, William Carter, tended to corroborate Mr. Spears except that part of his testimony as to the abusive and profane language which he testified Carson used.

It may be said here that counsel have failed to point to, or abstract, any testimony corroborating Mr. Spears' testimony that appellant used the violent and vulgar language, attributed to him, during the encounter.

We think it unnecessary to comment upon the effect of the above testimony. It speaks for itself.

After a careful review of all the testimony and giving to it its strongest probative effect in favor of the state (Slinkard v. State, 193 Ark. 765, 103 S.W.2d 50), we are of the opinion that it was sufficient to support a conviction for the crime of assault with a deadly weapon, as found by the jury. However, we must agree with appellant's contention that the punishment assessed is highly excessive, in the light of the testimony. This court has many times announced its power to reduce the punishment imposed upon a jury's verdict, and in circumstances such as are presented here. In Blake v. State, 186 Ark. 77, 52 S.W.2d 644, this court said: "One of the leading cases is that of Routt v State, 61 Ark. 594, 34 S.W. 262, in which a defendant had been convicted of robbing one Morgan of several hundred dollars. The court was of the opinion that, while the testimony established the fact that Routt had stolen Morgan's money, it did not suffice to establish the crime of robbery. . . . In discussing the power of the court to reverse the judgment of the trial court convictin...