Hankins v. State

• Citation: 145 S.W. 524,103 Ark. 28
• Parties: HANKINS v. STATE
• Decision Date: 26 February 1912
• Court: Arkansas Supreme Court

145 S.W. 524

103 Ark. 28

HANKINS v. STATE

Supreme Court of Arkansas

February 26, 1912

Appeal from Cleburne Circuit Court; George W. Reed, Judge; affirmed.

Affirmed.

Troy Pace and W. F. Pace, for appellant.

1. That part of the fourth instruction which charged the jury that "it is not necessary that such intent (to kill) be formed for any particular length of time before the assault but it may be conceived in a moment," would be a proper statement of the law where the object of the assault was accomplished and the defendant on trial for murder; but where the defendant is on trial for assault with intent to kill the intent must have been so clearly in the mind of the defendant as to leave no doubt that it was there. The instruction was therefore misleading. 34 Ark. 275; 49 Ark 156; 54 Ark. 283.

2. The court also erred, for the same reason, where in the fifth instruction it charged the jury that "every sane man is presumed to intend the natural and probable consequence of his acts." The instruction should have also told the jury that they should consider the nature of the weapon and the manner of using it, together with all the other circumstances in the case, in determining whether the intent existed. 54 Ark. 283.

3. Instruction 13 is erroneous because it is abstract, argumentative, misleading and confusing, admissible possibly in a murder case under some circumstances, but not in a case of assault with intent to kill. Defendant can not be cut off from his right to have the jury determine from all the facts and circumstances whether, if death had resulted, he would have been guilty of murder or manslaughter. 9 Ark. 42; 16 Ark. 592.

Instruction 15 is also abstract and misleading, the defendant not being on trial for murder. The correct rule is that a defendant is justified in acting in his necessary self-defense when the circumstances surrounding him at the time are sufficient, provided he is not negligent in coming to the conclusion, to excite his fears that the danger is imminent and pressing. 67 Ark. 598, and cases cited.

4. The court erred in refusing to charge the jury on the question of manslaughter, and also on the questions of aggravated assault and assault and battery. 54 Ga. 660; 30 Tex.App. 343; 84 Ia. 172; 37 Mo.App. 137; 70 Kan. 241; 20 Ky. L. Rep. 36; 26 S.W. 404; 72 S.W. 853; 81 S.W. 37; 83 S.W. 202; 87 S.W. 347; 50 P. 472; Kirby's Dig., § 2415; 13 Ark. 712; 43 Ark. 295; 37 Ark. 436; 30 Ark. 337; 41 Ark. 362; 72 Ark. 569; 50 Ark. 549; 52 Ark. 347; 96 Ark. 52.

Hal L. Norwood, Attorney General, and William H. Rector, Assistant, for appellee.

1. Instructions 3 and 4 are correct. The same test applies where the accused is charged with assault with intent to kill as where he is charged with having committed a homicide.

2. Instructions 13 and 15 are correct. 62 Ark. 286; 93 Ark. 409; Kirby's Dig., § 1797.

3. If there was any testimony on which the jury could have based a verdict convicting appellant of aggravated assault, the court should have submitted to them that issue; but appellant's own testimony is sufficient to show that there was but one question to decide, i. e., whether he shot with intent to kill, or in his own necessary self-defense. There is nothing in the record to reduce the crime from assault with intent to kill to aggravated assault. 70 S.W. 543; 59 S.W. 894; 45 S.W. 495; 37 S.W. 864; 36 S.W. 86; Id. 446; 14 S.W. 212; 44 S.W. 239; 47 S.W. 643; 96 Ark. 56.

OPINION

MCCULLOCH, C. J.

The defendant appeals from a conviction of the crime of assault with intent to kill, alleged to have been committed by shooting one John Shreve with a pistol at the town of Leslie, Searcy County, Arkansas. The trial of the case was had in Cleburne County, on a change of venue.

The undisputed evidence establishes the fact that defendant shot Shreve four times in the left side and back, inflicting dangerous wounds. The wounds did not prove fatal, but Shreve did not appear at the trial. The shooting, however, occurred in the daytime and in the presence of several witnesses in front of Shreve's place of business. It seems that defendant and Shreve had formerly been in business together, but at the time of the shooting the latter and one Guthrie had a place of business in Leslie where intoxicating liquors were unlawfully sold. On the day of the shooting one Johnson received a bottle of whisky from defendant, and a short time thereafter Shreve took the whisky away from Johnson. Johnson appealed to defendant to go with him to Shreve for the purpose of satisfying the latter that defendant had loaned the whisky to him. They walked over to Shreve's place of business, and the shooting followed a brief conversation between the two.

The testimony adduced by the State, viewed in its strongest light, was sufficient to establish the following state of facts with reference to the shooting and circumstances which immediately attended it: Shreve was sitting on an upturned bucket in front of his place of business, with his pocket knife out, whittling on a plank, when defendant and Johnson walked up. Defendant asked Shreve, "Did you take a bottle of whisky off of this man?" and, before Shreve replied, defendant drew his pistol and fired. Shreve arose, and turned away from defendant, and said this: "Why, Hawk, you don't mean to kill me, do you?" and defendant replied, "Yes, you damned son-of-a-bitch, that is just what I mean to do," and continued to use his pistol, firing several more shots. It appears from the testimony that a short time before this defendant and Shreve had a friendly conversation in front of the latter's place of business.

Defendant's own account of the difficulty, which, though corroborated by other witnesses, is the most favorable testimony to his own side of the case, is as follows: He states that he and Johnson walked up to Shreve, that he (defendant), said: "John, you know it is dirty to treat a man like that," and that Shreve replied, "No, it ain't dirty, either," and jumped up with the knife in his hand, and started toward defendant in a threatening attitude. Defendant stated that he stepped back two or three steps, and fired the first shot, and that he continued to fire because Shreve still had the knife in his hand and was trying to get hold of him.

There were several exceptions to the introduction of testimony that need be noticed only, very briefly.

Doctor Russell, a physician and surgeon was introduced as a witness, and testified concerning the wounds upon Shreve's body when he was called to give medical attention immediately after the shooting. He illustrated his, testimony with a diagram which he had made of the man's body and the location of the wounds, and at the end of the testimony this diagram was introduced in evidence over defendant's objection. We can see no well-founded objection to this, as the diagram was a part of Doctor Russell's testimony, and was authenticated by him. It was not introduced as independent testimony, but merely as a part of the testimony of the witness, and it was competent for the purpose of showing the precise location of the wounds.

The garments worn by Shreve at the time of the shooting were introduced in evidence over defendant's objection. This was done after the garments were identified by Doctor Russell and another witness, and we discover no error in allowing this to be done.

The prosecuting attorney was permitted to ask defendant on cross examination, over the objection of his counsel, if he had not been engaged in the unlawful sale of intoxicating liquors at Leslie, and if he had not paid the Federal tax on the sale of liquors. Defendant denied that he had been engaged in the unlawful sale of liquors, but said that he had been selling "near-beer," and had paid the Federal tax, as he explained, to protect himself in case some of the liquor he sold did not stand the test. It was competent for the State to interrogate the defendant, on cross examination, as to his conduct in engaging in the illegal sale of liquor. This was competent for the purpose of affecting his credibility as a witness. Hollingsworth v. State, 53 Ark. 387, 14 S.W. 41.

As a part of the examination, it was not improper for him to be asked whether he held a Federal tax receipt. We think all this testimony had some legitimate tendency affecting his credibility, and that there was no error in permitting it.

The court gave instructions correctly defining the offense of assault with intent to kill, and, among other things, said:

"To constitute an assault with intent to kill and murder, it must appear from all the evidence in the case to a moral certainty that, had death ensued, it would have amounted to murder either in the first or second degree, and that there existed in the mind of the one making the assault a specific intent to take the life of the person assaulted, but it is not necessary that such intent be formed for any particular length of time before the assault, but it may be conceived in a moment before."

This announces the law in accordance with the decisions of this court. Lacefield v. State, 34 Ark. 275; Scott v. State, 49 Ark. 156, 4 S.W. 750; Chrisman v. State, 54 Ark. 283, 15 S.W. 889.

Following this, the court gave accurate instructions defining the crimes of murder in the first and murder in the second degrees.

The following instruction was given, which defendant objected to:

"You are further instructed that every sane man is presumed to intend the natural and probable consequences of his acts."

It is insisted that this instruction, while a correct one in a murder case where death had resulted, should not be given in a case where death did not result, and where it devolved upon the prosecution to show that...