Craig v. State

• Decision Date: 21 June 1943
• Docket Number: 4304
• Parties: CRAIG v. STATE
• Court: Arkansas Supreme Court

172 S.W.2d 256

205 Ark. 1100

CRAIG v. STATE

4304

Supreme Court of Arkansas

June 21, 1943

Appeal from Little River Circuit Court; Minor W. Millwee, Judge affirmed.

Judgment affirmed.

Bert B Larey, for appellant.

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

OPINION

KNOX, J.

Convicted of the crime of assault with intent to kill, appellant prosecutes this appeal, and urges as grounds for reversal, (1) that the evidence is insufficient to sustain the verdict because (a) the specific intent to kill is not established thereby, and (b) if death had resulted appellant could not have been convicted of murder, and (2) that the court erred in refusing to give a certain requested instruction.

Viewing the testimony as we must in the light most favorable to the state (Slinkard v. State, 193 Ark. 765, 103 S.W.2d 50), the record discloses:

Appellant and one Fred Hedgecock, the victim of the assault were both employed in the operation of a gravel pit. Hedgecock was assistant foreman. Appellant stated to a deputy sheriff that he became exceedingly angry at Hedgecock some several hours before the time of the assault, on account of the fact that Hedgecock had severely taken him to task for, and unjustly accused him of, having been asleep at his post of duty. At and immediately before the time of the assault appellant and Hedgecock were both on a railroad car which was being loaded, and was already partially filled with gravel. Appellant, in compliance with directions from Hedgecock, was using a shovel in an effort to keep the gravel spread evenly over the car. The train, of which the car was a part, was being switched for the purpose of spotting a car to be loaded with gravel, and Hedgecock was acting as flagman directing the switching movement. A disinterested witness testified that she observed appellant and Hedgecock talking, but could not hear what was said. Hedgecock testified that no words were spoken between them, but appellant testified that Hedgecock abused and cursed him and accused him of loafing, and threatened to have him discharged. There is evidence that Hedgecock had walked to the end of the car, and with his back turned toward appellant, was in the act of getting off, at which time appellant took a few steps forward and without warning struck Hedgecock across the head with the shovel, the blow being accompanied by sufficient force and violence to knock him out of the car, and cause him to fall on a platform at the end thereof, and produce a severe fracture of his skull, which rendered him unconscious at the time, which condition continued for about sixty days, during which time and for thirty days thereafter he was confined in a hospital.

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. Lacefield v. State, 34 Ark. 275, 36 Am. Rep. 8; Chrisman v. State,54 Ark. 283, 15 S.W. 889, 26 Am. St. Rep. 44; Chowning v. State, 91 Ark. 503, 121 S.W. 735, 18 Ann. Cas. 529; Francis v. State, 189 Ark. 288, 71 S.W.2d 469.

Under some circumstances one may be guilty of murder, although he may lack the intention to take life; (Ballentine v. State, 198 Ark. 1037, 132 S.W.2d 384), and likewise one may intend to kill under circumstances where the killing would not constitute murder, as in cases of manslaughter or justifiable homicide. Proof of both the intent to kill and facts sufficient to establish murder had death resulted are, therefore, essential to sustain a conviction.

In the case of Lacefield v. State, supra, Mr. Justice HARRISON, in discussing the character of proof required to establish the intent, says: "Whilst it is true that every person is presumed to contemplate the ordinary and natural consequences of his acts, such presumption does not arise where the act fails of effect, or is attended by no consequence; and where such act is charged to have been done with a specific intent, such intent must be proved, and not presumed from the act."

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; the nature, extent and location on the body of the wound inflicted, if any; the state of feeling existing between the parties at and anterior to the difficulty;...