Jones v. State

• Decision Date: 08 February 1909
• Citation: 116 S.W. 230
• Parties: JONES v. STATE.
• Court: Arkansas Supreme Court

116 S.W. 230

JONES v. STATE.

Supreme Court of Arkansas.

February 8, 1909.

Appeal from Circuit Court, Jefferson County; Antonio B. Grace, Judge.

John Jones was convicted of assault with intent to kill, and appeals. Reversed and remanded for a new trial.

The appellant was convicted of the crime of an assault with intent to kill one Carter. The evidence on the part of the state tended to show that about the 1st of May, 1907, a man by the name of Carter reported to the deputy constable that the appellant had tried to kill him (Carter) with an ax. Whereupon the deputy constable went to Carter's house, and found the appellant in Carter's house, walking the floor. The door of Carter's house was broken open like it had been struck with a heavy instrument. When the deputy constable arrested appellant he seemed very angry, and said to Carter (who was with the deputy constable): "I intend to kill you, if it is ten years." Appellant told the deputy constable that he had run Carter with an ax and tried to kill him with it, but that Carter had outrun him. The occurrence was in Jefferson county, Ark., within three years before the finding of the indictment, and the arrest was made soon after it was alleged to have occurred, and the conversation detailed by the constable was at the time and just after he arrested appellant.

A witness who lived near Carter testified as follows: "Carter came running down to my house, and when he got to the gate he halloed, `Let me in; a man is after me with an ax.' I ran to the door and said, `Don't come in the house with that ax. Go back where you started.' `All right, I will take you at your word, and will go back, but,' he says, `I will kill him if I live.' Carter was in my house, and Jones was at the gate at that time; just had the ax swinging it in his hand. It is about 30 feet to the gate from my house. After Jones said he would kill Carter if he lived, he turned and left my gate. When Carter got to my house he was blowing pretty fast like he had been running, and said, `Let me in; a man's after me with an ax.' Don't remember what year that was. It was the day Mr. McNeil made the arrest. That (indicating defendant) is the man he arrested."

The appellant testified as follows: "Carter and I were raised together, and I came there to work and was staying with him. I went to Redfield and got about a gallon of whisky, and was giving everybody some. We were all drinking and having a good time. He wanted to borrow a quarter from me. I would not lend it to him, and we got in a row. We usually talked pretty rough to each other, but never fought. He told me he was going to cut my throat, and drew a grandfather barlow knife. I run out and got the ax. I struck the door and broke it in. I did not see him then until he was about 30 feet from me, and I took after him to bluff him. I don't know whether he was going to cut me or not. I just kept after him till he got to the other man's house. I turned back at his gate. I don't remember what I said to the sheriff. I did not hit Carter with the ax — had no intention of killing him or hurting him at all. He was running, and I wanted to bluff him. I was not closer to him than 30 feet; could not have hit him."

At the request of appellee the court gave the following instruction: "The criminal law of the state provides that whoever shall feloniously, willfully, 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 counselors, aiders, and abettors, shall on conviction thereof be imprisoned in the penitentiary not less than 1 year nor more than 21 years; so, if the jury are satisfied by the evidence in this case beyond a reasonable doubt that the defendant, John Jones, within three years next before the filing of the indictment in this case, did feloniously, willfully, and with malice aforethought, with a deadly weapon, to wit, an ax, strike at, or make an effort to strike, the prosecuting witness, Napoleon Carter, with the intention to murder and kill him, not in his necessary self-defense, it will be the duty of the jury to convict the defendant as charged in the indictment, and to fix his punishment at imprisonment in the state penitentiary at a period of not less than 1 nor more than 21 years."

And at the request of appellant gave the following: "You are instructed that an assault is an unlawful attempt, coupled with the present ability, to...