Mitchell v. State, CR

• Court: Arkansas Supreme Court
• Writing for the Court: HICKMAN
• Citation: Mitchell v. State, 717 S.W.2d 195, 290 Ark. 87 (Ark. 1986)
• Decision Date: 06 October 1986
• Docket Number: No. CR,CR
• Parties: Larry MITCHELL, Appellant, v. STATE of Arkansas, Appellee. 86-99.

Page 195

717 S.W.2d 195

290 Ark. 87

Larry MITCHELL, Appellant, v. STATE of Arkansas, Appellee.

No. CR 86-99.

Supreme Court of Arkansas.

Oct. 6, 1986.

Everett & Whitlock by John C. Everett, Prairie Grove, for appellant.

Steve Clark, Atty. Gen. by Lee Taylor Franke, Asst. Atty. Gen., Little Rock, for appellee.

HICKMAN, Justice.

Larry Mitchell, a charter pilot from Hopkinsville, Kentucky, had an ongoing dispute with another charter pilot, Billy Allen. On the morning of August 28, 1984, Mitchell and Allen flew into the Bentonville airport in their respective airplanes carrying passengers to a meeting at the Wal-Mart offices. Mitchell arrived first and was standing by his airplane when Allen landed. After Allen saw Mitchell, he left his plane and approached Mitchell. Mitchell shot Allen in the upper abdominal area at close range with a .38 pistol. A misfire occurred, apparently from faulty ammunition, and the bullet penetrated only one centimeter. At the hospital an x-ray revealed a density which appeared to be a bullet. Surgery disclosed the matter was a calcified lymph node. The spent bullet was found on the tarmac at the airport. Mitchell was charged with attempted battery in the first degree. He was convicted and sentenced to three years imprisonment and fined $10,000.

Mitchell argues on appeal there is no such crime as attempted battery, and he should have been charged with aggravated assault instead. Mitchell's argument essentially attacks the provision in the criminal code which defines the crime of attempt. Under the old common law, there was no attempted battery. 2 Torcia, Wharton's Criminal Law, § 179 (14th ed. 1981); Perkins, Perkins on Criminal Law, (2 ed. 1969). Attempt crimes were designated as assault crimes. James v. State, 280 Ark. 359, 658 S.W.2d 382 (1983). The new criminal code, which became effective January 1, 1976, changed the common law by providing for the crime of attempt.

Ark.Stat.Ann. § 41-701 (Repl.1977) provides:

(1) A person attempts to commit an offense if he: (a) purposely engages in conduct that would constitute an offense if the attendant circumstances were as he believes them to be: or (b) purposely engages in conduct that constitutes a substantial step in a course of conduct intended to culminate in the commission of an offense whether or not the attendant circumstances are as he believes them to be.

(2) When causing a particular result is an element of the offense, a person commits the offense of criminal attempt if, acting with the kind of culpability otherwise required for the commission of the offense, he purposely engages in conduct that constitutes a substantial step in a course of conduct intended or known to cause such a result.

(3) Conduct is not a substantial step under this section unless it is strongly corroborative of the person's criminal purpose.

Essentially, the provision states that a person commits the criminal act of attempt when his conduct constitutes a substantial step intended to result in the commission of an offense. The statute does not exclude any crimes from its application nor does it list any crimes to which it applies. Obviously, the attempt statute was adopted by the legislature to insure that gaps did not exist in the law which would allow some criminal misconduct to be...