Hobbs v. State

• Decision Date: 01 June 1908
• Citation: 111 S.W. 264
• Parties: HOBBS v. STATE.
• Court: Arkansas Supreme Court

111 S.W. 264

HOBBS v. STATE.

Supreme Court of Arkansas.

June 1, 1908.

Appeal from Circuit Court, Pope County; Hugh Basham, Judge.

Dave Hobbs was convicted of aggravated assault, and he appeals. Affirmed.

U. L. Meade, for appellant. Wm. F. Kirby, Atty. Gen., and Dan. Taylor, Asst. Atty, Gen., for the State.

HILL, C. J.

Dave and Sam Hobbs were jointly indicted by the grand jury of Pope county, charged with assault with intent to kill and murder one Bill Rolls. Harry Moore was at the same time indicted for the same offense. On separate trial Dave Hobbs was convicted of aggravated assault, fined $50, and sentenced to six months in the county jail, and has appealed.

The first alleged error is in the failure of the court to instruct as to reasonable doubt The court gave but one instruction, and it was not excepted to, and the appellant did not ask for a reasonable doubt instruction to be given. "As the defendant asked for no instruction on that point, he has, under our practice, no right to complain that the court did not give it." Scott v. State, 77 Ark. 455, 92 S. W. 241. This principle was applied to the instruction on reasonable doubt in Mabry v. State, 80 Ark. 345, 97 S. W. 285.

Appellant also complains of the court not having instructed on other matters upon which he alleges the court should have instructed. "If the defendant or plaintiff desires other instructions, he may ask them; but, if he fails to do so and remains voluntarily silent, he cannot complain." Holt v. State, 47 Ark. 196, 1 S. W. 61.

The next alleged error is that the record shows affirmatively that the defendant was never arraigned, and that he did not waive arraignment before being put upon trial. The record shows that the defendant demurred to the indictment, which was overruled, to which he excepted, and then both parties announced ready for trial, whereupon the trial proceeded. The appellant cites Baker v. State, 39 Ark. 180, and Lacefield v. State, 34 Ark. 275, 36 Am. Rep. 8, to sustain his contention that, if a defendant is tried without plea, that is cause for arresting judgment, and, upon failure of the trial court to arrest it, for the Supreme Court to reverse it. These cases do sustain that position, and also Perry v. State, 37 Ark. 54, and State v. Dillingham, 43 Ark. 154. These decisions, although not expressly named, were in fact overruled by Hayden v. State, 55 Ark. 342, 18 S. W. 239, where the same point was raised and decided otherwise. In that case the defendant was represented by counsel and announced himself ready for trial, and was accorded every right that he could have availed himself of under the most formal record entry of his plea. The court said that the only object of his plea was to make an issue, and the whole record showed that an issue was made, and that the failure of arraignment or waiver of arraignment should be disregarded. Chief Justice Cockrill, delivering the opinion, said: "To disregard the trial then, and say there was nothing to try because without a plea there was no issue, and without an issue there could be no trial, would be to sacrifice the truth for a system of casuistry, which was originally resorted to by the courts only to avoid the bloody consequences of the enforcement of the Criminal Code of a prior century. The necessity for such niceties of reasoning has passed away." In Brewer v. State, 72 Ark. 145, 78 S. W. 773, it was also contended that the judgment of the trial court should be reversed because the defendant was put upon trial without a formal arraignment and plea of not guilty. Judge Riddick, for the court, said: "There are several decisions that support that contention in the earlier reports of this court, but those cases have been overturned by later decisions." He then quoted from Hayden v. State, supra. In Lee v. State, 73 Ark. 148, 83 S. W. 916, Mr. Justice Riddick again called attention to the fact that Perry v. State and Lacefield v. State had been overruled by Hayden v. State. In order that these cases may not longer be cited as authority, they are hereby expressly overruled. While the sounder view is to hold it nonprejudicial error to fail to have arraignment and plea where the rights of the defendant are properly...