Cheney v. State
Decision Date | 21 June 1943 |
Docket Number | 4310 |
Parties | CHENEY v. STATE |
Court | Arkansas Supreme Court |
Appeal from Crittenden Circuit Court; W. N. Killough, Judge affirmed.
Judgment affirmed.
Wils Davis, for appellant.
Guy E Williams, Attorney General, and Earl N. Williams, Assistant Attorney General, for appellee.
Appellant, Dock Cheney, was convicted of the crime of assault with intent to kill. Gabe Robinson was the victim of the assault. The jury assessed his punishment at 15 years in the state penitentiary, and from the judgment comes this appeal.
For reversal appellant urges (1) that the evidence was not sufficient to support the verdict, and the punishment assessed is excessive, (2) that the court erred in denying change of venue, and (3) that the cause should be reversed because one of the jurors was a nephew by marriage of the prosecuting witness, Gabe Robinson.
1. The record presents the following facts: Gabe Robinson, 56 years of age, had lived in Crittenden county approximately 36 years and owned and farmed 3,200 acres of land. On August 8, 1942, Gabe Robinson went to the store of Joe Levitch in Crawfordsville to collect for some corn sold to Levitch, and while leaning on the show case writing a check, the defendant, Cheney, without warning, came up behind Robinson and assaulted him. Robinson testified:
Robinson was unarmed at the time and was not acquainted with his assailant. He was so severely beaten that he stayed in the hospital six days, was confined to his home thereafter for approximately three weeks and was advised by his doctor not to attempt to drive his car for six weeks. At the time of trial, he was still suffering pain in his head and testified "when I stoop over I get blind."
An eye-witness, Joe Levitch, testified,
Roy Hampton testified that he heard the bursting of the beer bottle when it struck Mr. Robinson's head; that it sounded like a pistol shot; that he was standing near the door and he went in immediately.
Appellant was armed with a pistol.
Mike Levitch and James Black corroborated Mr. Robinson, Joe Levitch and Roy Hampton. Lonnie Anderson, witness for appellant, also corroborated these witnesses.
The appellant admitted the assault upon the prosecuting witness and gave as his reason that "I was mad" because Mr. Robinson had cursed in front of his wife. He denied that he intended to kill him. Robinson denied that he had cursed before appellant's wife.
There was other testimony of probative value which we do not deem it necessary to set out in detail here. It suffices to say that we have considered all the testimony and are of the opinion that the evidence, when given its strongest probative force in favor of the state, as we are required to do (Slinkard v. State, 193 Ark. 765, 103 S.W.2d 50) is amply sufficient to warrant the jury's finding that appellant assaulted the prosecuting witness, Robinson, with the intent to kill him. The testimony was sufficient to show malice on the part of the appellant. Malice may be either express or implied. The court properly instructed the jury that before they could convict the defendant of assault with intent to kill it must appear from the testimony, that appellant would have been guilty of either murder in the first or second degree, had the victim of his assault died. In Allen v. State, 117 Ark. 432, 174 S.W. 1179, this court held (quoting headnote 2): "If an assault be committed with the specific intent to take life, and with a deadly weapon, under circumstances which show implied malice, it will be sufficient to constitute the crime of an assault with intent to kill, even though there be no express malice; there must be malice, either express or implied, but either is sufficient."
Appellant's excuse for his assault upon Robinson that he was "mad" because Robinson had cursed in front of his wife some days before, we think was not sufficient provocation, if death had resulted from the assault, to have reduced the grade of the offense from murder to manslaughter. Clardy v. State, 96 Ark. 52, 131 S.W. 46; Young v. State, 99 Ark. 407, 138 S.W. 475, and Jerrall v. State, 107 Ark. 87, 154 S.W. 500.
On the question of appellant's intent at the time of the assault, "the jury should take into consideration the manner of the assault, the nature of the weapon used, the manner in which it was used, the statements of defendant, and all other facts and circumstances tending to show the state of defendant's mind." Davis v. State, 115 Ark. 566, 173 S.W. 829.
In fixing the punishment for the crime of assault with intent to kill, our lawmakers, in § 2961, Pope's Digest, have very wisely given to the jury much latitude. It is provided in that section that the punishment may be fixed at "imprisonment in the penitentiary not less than one nor more than 21 years," the evident purpose being that the punishment in each case should be fixed in accordance with the facts.
We find nothing in this record to show that the jury abused the discretion accorded it in fixing the punishment under this section of the statute, and we think no error is shown in this regard.
2. We cannot agree with appellant's contention that the court erred in denying change of venue. Appellant's petition for change of venue was supported by the affidavits of two witnesses, J. T. Cockrill and E. E. Smith. On February 22, 1943, the trial court heard the cause upon appellant's petition, the affidavits and oral testimony of Cockrill and Smith, and denied the petition.
From the testimony of the affiants it appears that there are twelve townships in Crittenden county. The effect of Mr. Cockrill's testimony may be summed up in his own words as follows: " ...
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