Fair v. State

• Citation: 241 Ark. 819,410 S.W.2d 604
• Decision Date: 23 January 1967
• Docket Number: No. 5242,5242
• Parties: Theodore FAIR, Appellant, v. STATE of Arkansas, Appellee.
• Court: Supreme Court of Arkansas

Page 604

410 S.W.2d 604

241 Ark. 819

Theodore FAIR, Appellant, v. STATE of Arkansas, Appellee.

No. 5242.

Supreme Court of Arkansas.

Jan. 23, 1967.

Jack Holt, Jr., Little Rock, for appellant.

Bruce Bennett, Atty. Gen., Fletcher Jackson, Asst. Atty. Gen., Little Rock, for appellee.

GEORGE ROSE SMITH, Justice.

In the court below a jury found the appellant guilty of assault with intent to kill and fixed his punishment at five years imprisonment. Here the appellant questions the sufficiency of the evidence and the trial court's ruling upon a point of evidence.

The proof is sufficient to support the verdict. On the day of the offense the appellant, who was traveling on foot in Little Rock, engaged in what should have been a trivial dispute with a motorist about which one should precede the other in crossing an intersection, each insisting that the other should go first. John Haydon, the motorist, finally drove past Fair and heard him use the words, 'Blow your head off.' Haydon stopped at a friend's house only two doors from the intersection. A neighbor crossed the street to tell Haydon that Fair had a gun. Haydon informed the police of the incident.

Officer Bridges responded to Haydon's call and found the accused about two blocks down the street. When the officer approached Fair and attempted to question him, Fair unbuckled the holster of his pistol, started to draw the weapon, and said, 'I'm going to blow your head off.' Officer Bridges, after a struggle, succeeded in wresting the gun away from Fair. Bridges placed Fair under arrest and took him to police headquarters, where Fair tried to seize another officer's pistol, saying that he was going to get another gun and do a better job of it.

With respect to the sufficiency of the evidence the case is controlled by our holding in Johnson v. State, 132 Ark. 128, 200 S.W. 982 (1918). There, upon facts similar to this appellant's encounter with Officer Bridges, we held that the act of drawing a pistol, if accompanied by a threat to use it, constitutes an assault with intent to kill. The turning point, we said, is whether the overt act is merely in preparation for an assault or is actually part of an assault. In the case at bar the jury were justified by the testimony in finding that Fair's attempt to draw his pistol, together with his threatening language, constituted an assault with intent to kill Officer Bridges.

The challenged ruling upon a point of evidence occurred during the State's cross...