Francis v. State
| Decision Date | 21 May 1934 |
| Docket Number | Crim. 3885 |
| Parties | FRANCIS v. STATE |
| Court | Arkansas Supreme Court |
Appeal from Hot Spring Circuit Court; Thomas E. Toler, Judge reversed.
Judgment reversed, and cause remanded.
M Rountree, for appellant.
Hal L Norwood, Attorney General, and Robert F. Smith, Assistant, for appellee.
The grand jury of Hot Spring County, Arkansas, returned the following indictment against appellant at the regular January, 1934, term thereof:
"The grand jury of Hot Spring County, in the name and by the authority of the State of Arkansas, accuses Dewey Francis of the crime of assault with intent to kill, committed as follows, to-wit: The said Dewey Francis in the county and State aforesaid, on the 7th day of August, 1933, in and upon one J. R. Sirratt, then and there being, with a dangerous weapon, to-wit: a knife, with which the said Dewey Francis was then and there armed and which was then and there had and held in the hands of him, the said Dewey Francis, unlawfully, wilfully and of his malice aforethought, did make an assault with intent to kill the said J. R. Sirratt, then and there with the knife aforesaid, feloniously, wilfully and of his malice aforethought to kill and murder the said J. R. Sirratt by cutting and stabbing him with said knife aforesaid, against the peace and dignity of the State of Arkansas."
Upon trial, appellant was convicted of assault to kill as charged in said indictment and his punishment fixed at five years in the State penitentiary.
Because of the views hereinafter expressed, it will be unnecessary to review the evidence in detail; it suffices to say that the evidence produced in behalf of the State was amply sufficient to sustain the charge of assault to kill.
Among other instructions given on behalf of the State, over appellant's objections, the trial court gave to the jury instruction number 5 as follows: "You are further instructed that, if you believe from the evidence in this case beyond a reasonable doubt that the defendant cut J. R. Sirratt with a knife, that the burden of proving circumstances of mitigation that justify or excuse the cutting is placed on the defendant."
Appellant contends that the giving of this instruction No. 5 was reversible error, and we agree with this contention. Section 2335, Crawford & Moses' Digest, provides: "Whoever shall feloniously, wilfully 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 counsellors, aiders and abettors, shall, on conviction thereof, be imprisoned in the penitentiary not less than one nor more than twenty-one years."
Since the pronouncement in Lacefield v. State, 34 Ark. 275, we have consistently held, to sustain an indictment for assault with intent to kill, the evidence must be such as will warrant a conviction for murder if death had resulted from the assault. Allen v. State, 117 Ark. 432, 174 S.W. 1179; Deshazo v. State, 120 Ark. 494, 179 S.W. 1012; Davis v. State, 115 Ark. 566, 173 S.W. 829; Alford v. State, 110 Ark. 300, 161 S.W. 497; Jones v. State, 100 Ark. 195, 139 S.W. 1126.
Moreover we have many times held that the evidence to...
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Lisenby v. State
...the assault. McCoy v. State, 8 Ark. 451; Lacefield v. State, 34 Ark. 275; Allen v. State, 117 Ark. 432, 174 S.W. 1179; Francis v. State, 189 Ark. 288, 71 S.W.2d 469. Of course, intent to kill may be inferred from acts and circumstances of the assault but it cannot be implied as a matter of ......
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Gaines v. State
... ... of the defendant." ... The ... digester's note to this § 2968 of the statutes, ... cites a number of cases which have construed and applied it, ... the two latest of these being Reynolds v ... State, 186 Ark. 223, 53 S.W.2d 224, and ... Francis v. State, 189 Ark. 288, 71 S.W.2d ... 469. In the last of these cases it was held that this statute ... was inapplicable in prosecution for assault with intent to ... kill, and that it was error to give it in cases of that kind, ... it being applicable only in homicide cases ... ...
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Conway v. State, CR–15–481
...into evidence, but argues that it was insufficient. Citing Davis v. State, 115 Ark. 566, 173 S.W. 829 (1914), and Francis v. State, 189 Ark. 288, 71 S.W.2d 469 (1934), he contends that intent cannot be proved by the concession of the defendant unless there is other proof of such specific in......
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Craig v. State
... ... 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 ... ...