Killian v. State

• Decision Date: 28 September 1931
• Docket Number: 118
• Citation: 42 S.W.2d 12,184 Ark. 239
• Parties: KILLIAN v. STATE
• Court: Arkansas Supreme Court

42 S.W.2d 12

184 Ark. 239

KILLIAN v. STATE

No. 118

Supreme Court of Arkansas

September 28, 1931

Appeal from Izard Circuit Court; John L. Bledsoe, Judge; affirmed.

STATEMENT OF FACTS.

Appellant was convicted of assault with intent to kill under an indictment charging him with assaulting one Arthur Harris marshal of the town of Calico Rock, with a rock thrown with the intent to kill and murder.

It appears from the testimony that one Aubrey Hayes had an altercation with Palmer Killian, appellant, and Kirby Killian, his cousin, on the night of December 13, 1930. Homer Scott came to Hayes' assistance, and Hayes left the scene after having been struck by Kirby Killian. Hayes informed Marshal Harris of the trouble, and he went to the scene and told Scott to get in his car and go home. Scott got into his car and the two Killian boys grabbed hold of the fenders and stopped it in front of the cafe a short distance from where the trouble started. Palmer Killian walked around the side of the car away from Harris and Kirby Killian started up the street as the marshal approached, Harris followed Kirby Killian, trying to catch him, and at that time Palmer Killian was about 10 feet from Harris, when he threw a rock about the size of a man's fist, striking Harris in the head and grievously wounding him. The skull was fractured and the witness, Dr. Smith, testified that in his opinion the wound would have caused death if Harris had not been immediately treated and the skull raised to prevent pressure on the brain. Appellant defended on the ground that he did not throw the rock which struck Harris.

The marshal stated that he heard of the row and went to stop it and was hit on the head; said the last thing he remembered he and Kirby Killian were scuffling, and when he awoke he was in the hospital in Little Rock; that he did not know what he was struck with and was not trying to arrest appellant, who was a cousin of Kirby Killian. Other witnesses said it was too dark to tell what happened.

Appellant testified that he did not throw the rock; that he was trying to help stop the trouble, and that he had nothing against Mr Harris; that, after Harris was hit, he went to get Earnest Wiseman and called Dr. Smith for the injured man; that he was somewhere near the middle of the street when Harris was struck, about 8 feet from the sidewalk and 12 feet from Harris, south of him toward the depot, and that Kirby Killian was struggling with Harris and was between him and Harris.

The court refused to allow appellant to introduce evidence that Homer Scott had been indicted for the same offense for which appellant was being tried and claimed that the court erred in giving instruction No. 4 without an instruction defining a deadly weapon, and also in giving instructions Nos. 5 and 6.

The jury found the defendant guilty, and from the judgment on the verdict this appeal is prosecuted.

Judgment affirmed.

Northcutt & Northcutt, for appellant.

Hal L. Norwood, Attorney General, and Robert F. Smith...