Lisenby v. State, No. CR

• Court: Supreme Court of Arkansas
• Writing for the Court: JONES; HARRIS; FOGLEMAN; HARRIS; FOGLEMAN
• Citation: 260 Ark. 585,543 S.W.2d 30
• Parties: Robert L. LISENBY, Appellant, v. STATE of Arkansas, Appellee. 76--47.
• Decision Date: 08 November 1976
• Docket Number: No. CR

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543 S.W.2d 30 260 Ark. 585 Robert L. LISENBY, Appellant,
v.
STATE of Arkansas, Appellee. No. CR 76--47. Supreme Court of Arkansas, In Banc. Nov. 8, 1976.

Reinberger, Eilbott & Smith, Pine Bluff, for appellant.

Jim Guy Tucker, Atty. Gen., by Jack Lassiter, Asst. Atty. Gen., Little Rock, for appellee.

JONES, Justice.

The appellant Robert L. Lisenby was charged on information filed by the prosecuting attorney with the crime of 'assault with intent to kill by use of a firearm.' He was found guilty at a jury trial and sentenced to 27 years in the state penitentiary with at least nine years to be served before parole.

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On appeal to this court Lisenby has designated eight points on which he relies for reversal, but having concluded that he was entitled to a directed verdict as contended under his third point, we find it unnecessary to discuss the other assignments.

The information filed against Lisenby also included a codefendant, Barney B. Norton, and the specific charge in the information was as follows:

The said defendants on or about the 2nd day of February, 1975, in Garland County, Arkansas, did unlawfully, wilfully and with malice aforethought make an assault upon one Norman Hall and Richard James with a deadly weapon, to-wit: a handgun by then and there shooting at them, the said Norman Hall and Richard James with said gun then and there had and held in the hands of him, the said Barney B. Norton, with the unlawful and felonious intent then and there, them, the said Norman Hall and Richard James wilfully and maliciously to kill and murder, in violation of Ark.Stats.Ann. 41--606, and the use of said firearm in the perpetration of the said assault being in violation of Ark.Stats.Ann. 43-- 2336.

The facts appear as follows: In the early morning hours of February 2, 1975, one Norman Hall, a security guard at the Diamondhead Resort in Garland County, discovered that the 'Pro Shop' at the resort had been burglarized and a quantity of merchandise had been removed therefrom. A golf cart was also missing and the golf cart was located near the premises adjacent to Highway 290. The canvas top of the golf cart had been removed and placed on the ground near the cart and the stolen merchandise was placed on top of the canvas top.

[260 Ark. 587] Mr. Hall and Richard James, in charge of golf course maintenance and construction, secreted themselves where they could watch the merchandise and around 6:30 A.M. an automobile stopped near the merchandise and two men got out of the automobile. The automobile traveled a short distance where it turned around and stopped again at the same location where it had first stopped. The two men went to the golf cart cover and started back toward the automobile carrying the canvas cover with the merchandise thereon between them. Mr. Hall shouted to the two men to halt and fired a pistol shot over their heads. The appellant Lisenby stopped and fell forward to the ground and his companion ran a distance of about 360 feet where he entered the waiting automobile. Mr. Hall then approached Lisenby and ordered him to get up from the ground, which Lisenby did, and at this point three shots were fired from the direction of the automobile. The bullets struck the ground near where James, Hall and Lisenby stood and Mr. Hall placed Lisenby between himself and the direction the shots were coming from.

A crime of assault with intent to kill and the penalty provided therefor are set out in Ark.Stat.Ann. § 41--606 (Repl.1964) as follows:

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 counselors, aiders and abettors, shall, on conviction thereof, be imprisoned in the penitentiary not less than one (1) nor more than twenty-one (21) years.

Thus, it is seen that 'feloniously, wilfully and with malice aforethought' are necessary elements of an assault with intent to murder or kill, and Lisenby was charged in the language of this statute. To sustain an indictment for an assault with intent to murder, the evidence must be such as would warrant a conviction for murder if death had ensued from 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 [260 Ark. 588] assault but it cannot be implied as a matter of law. Ward v. State, 208 Ark. 602, 186 S.W.2d 950.

The above comments are especially important in the light of additional statute,

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Ark.Stat.Ann. § 41--2507 (Repl.1964), which provides as follows:

If any person shall shoot at any person, with the intent to kill or wound, although he may miss or fail to hit the person aimed at, he shall be deemed guilty of an attempt to kill or maim, and on conviction shall be fined not exceeding three thousand dollars ($3,000), and imprisoned not exceeding seven (7) years.

In Lacefield v. State, supra the distinction as to intent becomes important as between the two statutes. In Lacefield we said:

The proposition is incontrovertible that to sustain an indictment for an assault with intent to murder, the evidence must be such as to warrant a conviction for murder had death ensued from the assault.

This court has said that in order to convict for assault with intent to kill, the state must prove without a reasonable doubt that an accused committed an assault and that it was with intent to murder. Allen v. State, 117 Ark. 432, 174 S.W. 1179. It is elementary under Arkansas law that one who is present, aiding and abetting in the commission of a crime is equally guilty as reiterated in Cheeks v. State, 169 Ark. 1192, 278 S.W. 10; Woolbright v. State, 124 Ark. 197, 187 S.W. 166, and Lacy v. State, 177 Ark. 1056, 9 S.W.2d 314. These were assault with intent to kill cases but in them the accused, unlike Lisenby in the case at bar, were aiding and abetting in the commission of the crime charged, or at least there was evidence from which the jury could have so found.

In 23 C.J.S. Criminal Law § 786(2) is found the following:

In order to be an accomplice, one must in some way be connected with the crime charged against accused. Thus, it is not sufficient that he was connected with accused in the commission of other offenses.

[260 Ark. 589] See State v. Walters, 105 Or. 662, 209 P. 349. See also Coleman v. State, 208 Md. 379, 121 A.2d 254; People v. Webb, 25 N.Y.S.2d 554, Mag.Ct.N.Y., reversed on other grounds, Mag.Ct.N.Y., 26 N.Y.S.2d 386; State v. Bowman, 92 Utah 540, 70 P.2d 458, 111 A.L.R. 1393; Washburn v. State, 16 Tex.Cr.App. 125, 318 S.W.2d 627; Warren v. State, 60 Tex.Cr. 468, 132 S.W. 136. See also Soloman v. Commonwealth, 208 Ky. 184, 270 S.W. 780; People v. Cowan, 38 Cal.App.2d 231, 101 P.2d 125; Warren v. Commonwealth, Ky.App., 333 S.W.2d 766.

There is considerable difference in the case at bar and such cases as Bosnick v. State, 248 Ark. 846, 454 S.W.2d 311. In Bosnick a father and son and two other young men were in the process of robbing a store when a policeman appeared on the scene and two of the robbers shot and killed the policeman. Each participant was charged with first degree murder. Bosnick, Sr., took the other defendants to the grocery store; all of them were armed and Bosnick, Sr., waited outside the store while the other three carried out the robbery with stocking masks over their faces. The defendants in Bosnick were not charged with the homicide in perpetration of robbery, but were simply charged with first degree murder. We pointed out in Bosnick that when a group plans an armed robbery, 'Each one of the party would be responsible for everything done which followed directly and immediately in the execution of the common purpose as one of its probable and natural consequences.' Citing Clark v. State, 169 Ark. 717, 276 S.W. 849 (1925). Then in Bosnick we continued as follows:

(T)he jury could have attributed to the elder Bosnick a full share of responsibility for what took place inside the Gatteys store, even though the original plan did not contemplate a homicide. Henry v. State, 151 Ark. 620, 237 S.W. 454 (1922). But the jury was not required to do so. By the decided weight of authority, and by what we regard as the better rule, the jury may assign degrees of guilt among the conspirators in accordance with their respective culpability.

In the case at bar the evidence is clear that Lisenby was associated with Norton and another individual in the theft of the merchandise from the Pro Shop, but Lisenby was apprehended in the theft of the

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merchandise. He offered no resistance to his arrest and was under the observation and [260 Ark. 590] complete control of the arresting officers when the shots were fired toward him and the officers. All three participants in the attempted theft of the merchandise abandoned the merchandise when the officers appeared, Lisenby surrendered and the other two ran away. After Lisenby was completely in custody offering no resistance whatever, one of his two former companions in fleeing from the scene fired three shots in the direction of Lisenby and the officers, and that was the sole basis for the charge against Lisenby of assault with intent to murder or kill.

As already pointed out, to sustain a conviction for assault with intent to kill the evidence must be such to have sustained a conviction for murder had the homicide occurred. In Jones v. State, 89 Ark. 213, 116 S.W. 230, the appellant was convicted of the crime of assault with intent to kill. The evidence was to the effect that the appellant chased the prosecuting witness with an ax threatening to kill him, but never did get in striking distance. In reversing the judgment, this court said:

There was no evidence to show that appellant at any time had the present ability...