Davis v. State

• Decision Date: 07 December 1914
• Docket Number: (No. 35.)
• Citation: 173 S.W. 829
• Parties: DAVIS v. STATE.
• Court: Arkansas Supreme Court

Page 829

173 S.W. 829

DAVIS v. STATE.

(No. 35.)

Supreme Court of Arkansas.

December 7, 1914.

Appeal from Circuit Court, Howard County; Jeff. T. Cowling, Judge.

Willie Davis was convicted of assault with intent to kill, and she appeals. Reversed and remanded, with directions.

This is an appeal from a judgment of conviction for assault with intent to kill. The facts are substantially as follows: The appellant had been fined in the justice court. She had failed to pay the fine, and the deputy sheriff had a commitment for her. Her husband, Will Davis, had agreed to pay the fine, but failed to do so. When the deputy told appellant that her husband had refused to pay the fine, appellant, who was then working at a hotel, left the deputy and went to her husband's house; the deputy following her. When the deputy reached the house, he found the appellant and her husband, Davis, talking about the fine. She asked if he was going to pay it, and he said he would pay half of it. She then asked him what he was going to do about the $5 he was owing her on some cotton. They were standing on the back porch. Davis left her and the officer in the hall and went into his dining room. The next he saw of appellant, she came in the room and again asked him if he was going to pay the fine, and he refused. Then she shot at him. He was sitting in a chair beside a table, which was between him and appellant. The table was three or four feet high. His feet were on the floor, his body being all above the table. Appellant was seven or eight feet from her husband when she fired. The first shot took effect in Davis' leg. Davis then got up, grabbed a chair, started towards appellant, and started to hit her with it. Appellant ran backwards and fired rapidly. Appellant shot the first shot at Davis under the table. The shots were fired as fast as she could pull the trigger. The shots were fired in the direction of where Davis was sitting, except two, which were to the right. There was also testimony on behalf of appellant tending to show that, after the first shot, the shots were not in the direction of where Davis was sitting or where he said he was located.

A witness having appellant in charge a short time just after the shooting testified as follows:

"She says: `He would not pay my fine. He got me into trouble and would not pay my fine, and I will kill him. I would rather be dead if I knew that Will was dead.'"

The officer who had her in custody after the shooting stated a conversation he had with her, as follows:

"I was talking to her in this way, I says, `Willie, you have made an awful mistake,' and she says, `How is that?' `Well,' I says, `The shooting you done. You had better went to jail and laid out this fine than to have gotten into a thing like this.' She says: `I don't care. The only thing I regret about it is that I don't know that I killed him.'"

Another witness testified that he heard appellant say, after the shooting, that:

She "meant to kill him (Davis). Said all she hated about it was that she didn't kill him, and would use the gun again if she could get a chance."

The appellant testified, in part, as follows, describing the occurrence:

"Mr. Whitten came in at the time; so he kept rushing me to come on to jail, and it worried me so I couldn't get to talk to my husband, and I just shot to see if I couldn't scare him to see if he wouldn't pay it, so I wouldn't have to come to jail. I was standing in the door between the kitchen and the dining room, just inside the kitchen. He was sitting at the end of his trunk, and the dining table was between me and him. His body was above the table. I shot to scare him. Just threw the gun down and turned my head off and fired, and, after I shot the first time, I just kept working my fingers, but I don't remember how many times the gun did shoot. I did not intend to kill him when I shot. I just shot to scare him, thinking it would frighten him into paying my fine. I didn't take any aim at him; didn't look at him at all. My only purpose was to frighten him into paying the fine for me."

She further stated that she had no recollection of making the statement that Mr. Whitten testified to. She denied talking to anybody else, and stated that she did not recollect anything that she said while she was in the custody of the officer. On cross-examination, she stated that she held the gun down low enough to shoot under the table, and did not look at Davis when she shot.

The record shows that appellant tendered her plea of guilty to an aggravated assault, and the only issue submitted to the jury was as to whether or not appellant was guilty of an assault with intent to kill.

The court, at the instance of the state, correctly defined the offense of assault with intent to kill. Among other instructions, it gave the following:

"(3) While it is necessary that the proof should show a specific intent to take life, in order to constitute the crime of assault with intent to kill, it is not necessary that this intent should be shown by direct and positive evidence, but it may be shown by facts and circumstances, and, in determining whether such intent existed, you will take into consideration the manner of the assault, the nature of the weapon used, the manner in which it was used, her statements, if any, and all other facts and circumstances tending to show the state of her mind."

Among other prayers for instructions presented by the appellant was the following:

"(4) Although you may find from the evidence that the defendant admitted to the officers and others that she intended to kill Will Davis when she shot at him, still you cannot convict her of assault with intent to kill on this confession, unless you further find it is accompanied with other proof that such offense was committed."

The court refused to grant this prayer, and appellant duly excepted and objected to the ruling of the court, and made this ruling one of the grounds of her motion for a new...