Davis v. State

• Decision Date: 02 July 1904
• Citation: 82 S.W. 167
• Parties: DAVIS v. STATE.
• Court: Arkansas Supreme Court

Page 167

82 S.W. 167

DAVIS v. STATE.

Supreme Court of Arkansas.

July 2, 1904.

Appeal from Circuit Court, Jefferson County; Antonie B. Grace, Judge.

Harrison Davis was convicted of assault with intent to kill, and he appeals. Reversed.

The appellant was indicted for assault with intent to kill Henry Jones, pleaded not guilty, and was tried, convicted, and sentenced to confinement in the penitentiary for one year. He filed a motion for new trial, which was overruled, and he excepted and appealed to the Supreme Court.

The evidence is that, appellant shot Henry Jones with a gun as said Jones was approaching near where the appellant was at work, and that there had previously been some hard feeling between them, and that each had made threats against the other. There was some evidence that Jones had a gun with him at the time, and that he attempted to shoot appellant before appellant shot him, though there is conflict as to Jones having a gun with him.

The court charged the jury as here shown in the words set out, to wit: "The criminal law of the state provides that `whoever shall feloniously, willfully and with malice aforethought, assault any person with intent to murder or kill, or shall administer, or attempt to give any poison or potion with intent to kill or murder, and their counselors, aiders and abettors, shall on conviction thereof, be imprisoned in the penitentiary not less than one nor more than twenty-one years.' So, if the jury are satisfied by the evidence in this case, beyond a reasonable doubt, that the defendant, Harrison Davis, within three years next before the filing of the indictment in this cause, did feloniously, willfully, and with malice aforethought, with a deadly weapon, to wit, a gun charged and loaded with gunpowder and leaden bullets, shoot at the said Henry Jones, the prosecutor, with the intention to murder or kill him, not in his necessary self-defense, it will be a duty of the jury to convict the defendant as charged in the indictment, and fix his punishment at imprisonment in the State Penitentiary for a period of not less than one nor more than twenty-one years. Although you may believe from the evidence that the defendant was upon the premises of witness Jones without right, this fact should not deprive him of the right of self-defense; and if, while upon said witness' premises, the said Jones attempted to kill defendant, and he, the said defendant, shot at said Jones under the honest belief that it was necessary...