Owens v. State
| Decision Date | 17 October 1921 |
| Docket Number | 169 |
| Parties | OWENS v. STATE |
| Court | Arkansas Supreme Court |
Appeal from Little River Circuit Court; James S. Steele, Judge affirmed.
Judgment affirmed.
A. D DuLaney and John J. DuLaney, for appellant.
The inferences to be drawn from the facts are for the jury. 91 Ark. 427.
Instruction No. 1 is abstractly correct, but the court should have defined murder. Instruction No. 3 should not have been given there was no testimony to show that he shot with intent to kill. 141 Ark. 13; 84 Ark. 545. The intention to take life cannot be implied in a case of assault simply because a deadly weapon is used. 115 Ark. 572. Such intent must be proved. 34 Ark. 275; 54 Ark. 285. The court should have defined murder. 74 Ark. 451; 52 Ark. 571; 109 Ark. 423.
J. S. Utley, Attorney General, Elbert Godwin and W. T. Hammock, Assistants, for appellants.
Instruction No. 1 given by the court is based on C. & M. Digest, § 2335, and is correct.
The law raises the presumption of malice from an unlawful attempt to take life. 82 Ark. 540; 96 Ark. 52.
If appellant desires a certain issue to be submitted to the jury, he should submit certain instructions. 110 Ark. 567; 109 Ark. 420; 129 Ark. 324.
Appellant Owens was given a sentence of three years in the penitentiary upon a charge of assault with intent to kill, alleged to have been committed by shooting at one Jimmie McDowell.
The testimony on the part of the State showed that Owens and McDowell had cursed each other, following a conversation in regard to a check which Owens had given McDowell's father and which had not been paid on presentation at the bank on which it was drawn, and that between ten and eleven o'clock a few nights later McDowell and his brother met Owens in the road, that they spoke as they passed--thus showing their recognition of each other--and that when they had passed and were a short distance apart Owens commenced firing at them and fired his pistol three or four times in rapid succession. Owens was walking, and the McDowell boys were riding, and when the firing commenced they spurred their horses and ran as fast as the horses could go down the road, but they testified they heard the bullets hit the ground around them.
Owens admitted firing the shots, but denied that he was shooting at the McDowell boys. He testified that just as the boys passed him he saw an opossum and commenced shooting at it.
The McDowell boys reported the incident to their father upon their arrival home. The sheriff was notified, and the testimony is that, in attempting to arrest Owens, an exchange of shots occurred between Owens and the sheriff, and Owens escaped. The following day Owens was arrested, and at this trial denied that he had shot at the sheriff.
G. W. McDowell, the father of the boys at whom Owens was accused of having shot, went to the scene of the alleged shooting, and there found some empty cartridges. He was asked, "State to the jury what you found." And answered, "He (Owens) was something like fifteen feet from the boys when he was doing the shooting." Objection was made; whereupon the court said, "Give the indications, Mr. McDowell, and let the jury draw the conclusions." The witness was then asked, "Did you examine the place as to the tracks of Will Owens?" In overruling an objection to this question, the court said, "If you found tracks there, it will be all right." The witness then answered: "There was his tracks where he stopped and turned around in the road, and it was something like fifteen feet from where these horses commenced jumping. "
It is insisted that this answer of the witness, in connection with the ruling of the court, constituted an expression by the court upon the weight of the testimony and amounted to an expression of OPINION upon a disputed question of fact. The objection made to the testimony at the time it was given was that the question and answer assumed the tracks were made by Owens.
It is not denied that Owens made the tracks there, and the important point in the inquiry was to determine the distance from the place where the empty cartridges were found to the point where the stride of the horses increased, the purpose being, of course, to show the distance between the parties when the shooting commenced. It is undisputed that the horses jumped when the shooting began, and that they ran for some distance down the road. The court had, just immediately before this question was asked, admonished the witness himself to give the indications and let the jury draw the conclusions; and we think the remark of the court set out above is not open to the objection now made to it.
Over the defendant's objection the court gave an instruction reading as follows:
"You are instructed, if you find from the testimony in this case beyond a reasonable doubt, that Will Owens shot at Jimmie McDowell with intent to kill him, because McDowell had cursed him or used abusive or threatening language, or because h...
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