Derrick v. State

• Decision Date: 18 October 1909
• Citation: 122 S.W. 506
• Parties: DERRICK v. STATE.
• Court: Arkansas Supreme Court

122 S.W. 506

DERRICK v. STATE.

Supreme Court of Arkansas.

October 18, 1909.

Appeal from Circuit Court, Monroe County; Eugene Lankford, Judge.

Sam Derrick was convicted of assault with intent to kill, and he appeals. Affirmed.

H. A. Parker, for appellant. Hal L. Norwood, Atty. Gen., and C. A. Cunningham, Asst. Atty. Gen., for the State.

McCULLOCH, C. J.

Appellant was indicted for assault with intent to kill, and was convicted of that offense. The alleged offense consisted of cutting one Newton with a pocketknife. The testimony shows that he cut Newton nine times, two or three of the wounds inflicted being serious ones, and the last was inflicted after Newton fell to the ground. Newton was intoxicated at the time, and does not pretend to remember all that occurred, but relates a good deal that he says he remembers. Suffice it to say that the testimony which he gave at the trial of the case was sufficient to make out a case of assault with intent to kill against appellant. The testimony introduced by appellant was sufficient, if it had been accredited by the jury, to reduce the offense below the crime of assault with intent to kill; but it is doubtful that his own testimony is sufficient to show that he was justified in cutting Newton as he did, for it is probable, even according to his own version of the facts, that he continued to cut Newton after the necessity therefor, in what appeared to him to be his own defense, ceased.

Appellant, in his motion for new trial and in oral argument of his counsel before this court, attacks the method of the state's attorney in examining witnesses; but we do not find that his grounds of attack are fully borne out by the record. It is true that there are some leading questions asked; but this is not reversible error without an abuse being shown of discretion of the trial judge in regulating and controlling the examination of witnesses. Traylor v. State, 80 Ark. 617, 96 S. W. 505.

The propriety of the conduct of the state's attorney is also challenged in asking one of his witnesses, who appeared to be an unwilling one, as to his testimony before the grand jury, and in producing the minutes of the grand jury and examining the witness as to same. There was no impropriety in this, for, if the prosecuting attorney was surprised at the testimony of his witness, he had a right to examine him as to what his testimony before the grand jury had been.

The coat said to have been worn by Newton when he was cut was handed to him while on the witness stand, and he identified it. It was not formally offered in evidence; but in his closing argument the state's attorney referred to the coat and held it before the jury, commenting upon its appearance. This was objected to by appellant and assigned as error. After the coat was identified as the one worn by Newton, it was not improper for the prosecuting attorney to refer to it in argument, although it had not been formally offered in evidence. Appellant had an opportunity to cross-examine Newton concerning the coat if he desired to do so, or he could have introduced any other testimony to show that it was not the coat worn by Newton. He contented himself merely with an objection to the state's attorney making reference to the coat in his argument. We can really see no hurtful effect anyway, in the reference to the coat, as all it could have shown was the...