Murray v. State

• Decision Date: 10 January 1966
• Docket Number: No. 5145,5145
• Citation: 240 Ark. 34,397 S.W.2d 812
• Parties: Glen Dale MURRAY, Appellant, v. The STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 812

397 S.W.2d 812

240 Ark. 34

Glen Dale MURRAY, Appellant, v. The STATE of Arkansas, Appellee.

No. 5145.

Supreme Court of Arkansas.

Jan. 10, 1966.

Shaver, Tackett & Jones, Texarkana, for appellant.

Bruce Bennett, Atty.Gen., by Russell J. Wools, Asst. Atty. Gen., Little Rock, for appellee.

JOHNSON, Justice.

This appeal questions sufficiency of the evidence in a conviction for assault with intent to kill.

Appellant Glen Dale Murray was charged by information in Sevier Circuit Court with the crime of assault with intent to kill Chief of Police Elbert 'Cotton' Hughes on November 28, 1964. The statement of facts is adopted from the testimony of appellant's witnesses. Appellant had been involved in a family ruckus in Little River County on November 28, 1964. After he returned to Sevier County that day, he planned to go hunting and had two rifles in his car. Leaving a gas station at the intersection of Highways 70 and 71, appellant's car skidded into a ditch on the south side of Highway 70 just west of the intersection. Appellant was trying to extricate his car when the local state trooper, Dale Lemley, saw him and stopped. Lemley had received a call about the Little River County altercation and was told to pick up appellant. Lemley, appellant's witness, testified on cross-examinaton: 'While I was talking to him, Officers Frank Chandler and Kirk Anderson came to the scene. * * * While talking with Glen Dale Murray near the driver's door of the State Police car, Mr. Chandler came there and either told the defendant to come with him, go with him, or that he was under arrest, and grabbed him by the back of the arm. Murray jerked loose and starting jumping around with his fist in the air, and I opened my car and told him to come on and get in. He said, 'The hell with you,' and kicked my door and made a dive for his car and said, 'I've got a loaded 30.06 and I'll kill every Goddamned one of you.' That was in the presence of Mr. Chandler, Kirk Anderson, and myself, and Mr. Anderson was close enough to where he could hear it. Cotton Hughes [DeQueen Chief of Police] was coming across the road about that time.' Chandler advised Hughes to watch out because appellant had a loaded rifle. Hughes continued across the highway, pulled out his pistol and squatted behind appellant's car just as appellant was coming out of his car with a rifle. Chandler was standing behind Hughes at the rear of appellant's car. As appellant turned, the rifle angled in the direction of Hughes and Chandler, and Hughes shot at appellant three times, striking him twice. Appellant was shot while in the process of sliding across the seat and before completely disembarking from the car.

Appellant was arraigned on November 30, 1964, and pleaded not guilty. At trial on February 8, 1965, the jury found appellant guilty of assault with intent to kill and fixed his punishment at one year in the penitentiary.

From judgment on the verdict, appellant has prosecuted this appeal contending that there is no evidence that appellant assaulted or intended to assault Chief Hughes.

For affirmance, appellee State urges that appellant failed to save his exceptions. This contention is without merit. The order overruling appellant's motion for new trial states that appellant saved his exceptions. As was said in Missouri Pac. R. Co. v. Lamb, 195 Ark. 974, 115 S.W.2d 864, 'This assignment of error [sufficiency of the evidence] in the motion for a new trial may be considered on appeal even though there was no request for a directed verdict, or if one was requested and no objections made or...