Murry v. State

• Decision Date: 29 April 1946
• Docket Number: 4408
• Citation: 194 S.W.2d 182,209 Ark. 1062
• Parties: Murry v. State
• Court: Arkansas Supreme Court

194 S.W.2d 182

209 Ark. 1062

Murry v. State

No. 4408

Supreme Court of Arkansas

April 29, 1946

Rehearing Denied May 27, 1946.

Appeal from Miller Circuit Court; Dexter Bush, Judge.

Affirmed.

Alston & Woods, for appellant.

Guy E. Williams, Attorney General, and Earl N Williams, Assistant Attorney General, for appellee.

OPINION

Smith J.

Informations were filed against Joe L. Scott and C. H. Murry, in one of which they were charged with the offense of assault with intent to kill; in the other with the crime of robbery. In one information it was alleged that the defendants had assaulted one Verner Andrews with the intent to kill the said Andrews. In the other information it was charged that the defendants had robbed Andrews of certain personal property.

By consent defendants were tried upon both informations at the same time, and were found guilty of the offense of assault with intent to kill, but were acquitted upon the other charge. Sentence was pronounced on the verdict against Murry, from which he has appealed. Sentence against Scott was suspended to permit him to rejoin the army.

The testimony is to the effect that Murry and Scott had been honorably discharged from the army, and were returning to their homes. As they approached Texarkana, there was a collision between the automobile in which they were driving and another car, which resulted in damage to that car. An unsuccessful attempt was made to settle the damage, but the owner of the damaged car insisted that they drive into Texarkana, where the damage might be appraised. The request was not approved by Murry and Scott and they attempted to elude the driver of the damaged car, and in doing so they drove into a tourist court operated by Andrews, driving over a sidewalk where there was no driveway, and stopped their car in a space not intended for that purpose.

The owner of the damaged car followed into the tourist camp, where the argument about the damage was resumed. Andrews heard the commotion, and called the police department, and as he left his office to see what the commotion was about, he picked up and put in his pocket a blackjack, and as he left his office he was assaulted by Murry who struck him in his eye. Andrews drew the blackjack from his pocket, and struck Murry with it, and Scott came up behind Andrews and knocked him down. Both defendants jumped on Andrews, took his blackjack away from him, and began beating him with it, and carried Andrews through a side door into his office where they asked him for his money. He pulled loose from the men and started to run, when one of them knocked him down with the blackjack. When he arose his head was pummeled against the wall until it bled profusely. When he liberated himself he got a shotgun and returned to the encounter, where his gun was taken away from him, and the beating was resumed. He was carried into the kitchen of the camp and again beaten with the blackjack, and Murry told him he was going to have to pay off. Andrews asked what they wanted, and one of the assailants said they wanted $ 50. Andrews produced the money, when Scott suggested that they had better not leave him there, as someone might have their license number, so they took Andrews and put him in their car where there was a drunken man, an acquaintance of the defendants, who had been picked up by them to prevent the arrest of the drunk man, as they explained. When the four men were all in the car, Scott started to drive off. Andrews got out of the car when Scott said to Murry, "Give me the blackjack. Let me hit him a few licks." Andrews testified that they took his wrist watch off of him, and while they were struggling to put him back in the automobile the sheriff and his deputy arrived.

The fourth man who remained in the car was in a drunken stupor, and had no part in the affray, if indeed he was aware of what was going on.

Andrews was badly beaten. He received wounds to his tongue, head and eyes, and the scars on his head were visible at the time of the trial. When he was carried to the hospital six stitches were taken in his head, and one in his tongue. His eye was bloodshot for several days. There were blood spots on the wall against which his head had been beaten. There is a scar in the shape of a "Y" on the left side, near the center of his head and a long scar down the side towards the ear, about three inches long and one on the back of his head about one inch long. All the scars were the result of the attack and Andrews was confined to the hospital about nine days.

When the shotgun was taken away from Andrews it was placed in defendant's car, and they explained that this was done, not to shoot Andrews with it, nor to steal it, but to prevent Andrews from shooting them. Undoubtedly both Scott and Murry were under the influence of intoxicating liquors, but it is not contended that either was so drunk that he did not know and realize what he was doing.

The testimony is sharply conflicting, but we have given Andrews' version, as we are required to do, in testing the legal sufficiency of the testimony to support the verdict. Murry and Scott testified that they offered to pay $ 10 in satisfaction of the damage done to the car they had struck, and when the owner of that car refused the offer, they attempted to elude him, and in speeding away the hood of their car blew off, and they ran into the court of Andrews' tourist camp. The man whose car they had struck soon appeared, and a settlement of the damages was effected, and their pursuer drove away. While the settlement was being negotiated Andrews appeared and ordered defendants away. Murry testified that he said, "Wait until we pay for the fender, and we will get out." Andrews went into one of the rooms of his court, and according to the version of defendants, reappeared, and without provocation, assaulted Murry with his blackjack. It is admitted that Andrews struck Murry with the blackjack, which is conceded to be a lethal weapon. Indeed the defense is that the assault upon Murry with the blackjack, referred to as a deadly weapon, so infuriated Murry that an irresistible passion was aroused and that this provocation for the admitted assault upon Andrews operated to reduce the degree of their offense from an assault with intent to kill, to an aggravated assault.

Defendants denied any intention either to kill, or to rob, Andrews. They denied taking the watch off of Andrews' person, which was later found near their car. They admitted putting Andrews' shotgun in their car, but said this was done to prevent its use. Defendants contend that the lack of any intention to kill Andrews is shown by the fact that they did not kill him which might have been done with either the blackjack or the shotgun.

Murry testified that when he was unable to settle for the damage to the car they had struck, he thought it would be funny to run away and not pay anything, and proceeded to do so, and only drove into Andrews' court because the hood of their car had blown off. They admitted that they attempted to put Andrews into their car, but stated their purpose in doing so was to turn him over to the officers of the law, because of the assault that he had committed on them.

The sheriff testified that when he drove up he saw evidence of the fight and told defendants they had beaten Andrews unmercifully, when Murry said he "wished he had killed the son-of-a-bitch." The defendants may not at any time have had the intention of killing Andrews, but we think it was a question of fact whether this was their intention when the...