Pate v. State
| Decision Date | 31 January 1944 |
| Docket Number | 4329 |
| Citation | 177 S.W.2d 933,206 Ark. 693 |
| Parties | Pate v. State |
| Court | Arkansas Supreme Court |
Appeal from Sebastian Circuit Court, Ft. Smith District; J. Sam Wood, Judge.
Affirmed.
Roy Gean, for appellant.
Guy E. Williams, Attorney General, and Earl N Williams, Assistant Attorney General, for appellee.
Appellant was found guilty by a jury of the crime of maiming and from judgment of the lower court, sentencing him to imprisonment in the penitentiary for four years, he prosecutes this appeal.
The evidence disclosed that appellant, a taxicab driver in Fort Smith, was engaged by Willie Bryant and Frank Crockett, two soldiers at Camp Chaffee, to drive them with two young ladies to the home of the young ladies. The soldiers took the young ladies to their residence, then re-embarked in the cab and were driven back to the business district. A dispute as to the proper fare for the trip arose between the appellant and his two passengers. To settle the dispute, it was agreed that appellant would take the soldiers, who had been drinking, to the cab station, where inquiry as to the proper amount of fare was to be made. At the cab station the parties continued the quarrel which culminated when appellant, who had left his cab, walked back to it, reached in the seat, took therefrom a blackjack, or, as claimed by appellant, a piece of rubber hose, and struck Bryant on the head with this instrument. The blow landed in the region of Bryant's left eye, which was badly injured. As a result of this blow it was necessary to remove the eye.
There is a dispute in the testimony as to what occurred immediately before Bryant received the injury. According to Crockett, Bryant had not made any attack on appellant, but was merely arguing that the $ 2 cab fare demanded by appellant was too much, and "Nothing passed between them at all -- he (appellant) just went around and got the weapon and came around and hit the boy without any provocation." Bryant's version of the difficulty was practically the same as Crockett's. He denied that he struck or struck at appellant before or after he received the blow. He testified that he was unarmed, and did not realize that appellant was about to strike him until appellant drew back; that the instrument with which he was injured was a blackjack "plaited like leather."
Appellant testified that the soldiers were drunk and that Bryant, whose weight was over 200 pounds, as compared to appellant's weight of 154, struck him first, and that appellant, after getting loose from Bryant, ran back to his cab, found Bryant standing there, reached in the cab, obtained the piece of rubber hose and struck him with it. Appellant testified:
Appellant's testimony as to the difficulty was in some respects corroborated by that of Carter, another cab driver, who testified: "This big soldier, he was pretty drunk, and he struck Jimmy, and that is when Jimmy reached in and got the billy club." But, when shown the rubber hose, identified by appellant as the weapon used by him, and asked if it was the instrument used, Carter said, "I don't believe it was."
Many grounds for reversal of the judgment are urged. We will discuss those chiefly relied upon by appellant.
The difficulty out of which the alleged offense involved herein arose occurred on May 1, 1943. Appellant was immediately arrested and a charge of maiming made against him in the municipal court. This proceeding was abandoned and on June 8 information was filed by the prosecuting attorney against appellant in the circuit court and the case set for trial on June 14. Request for postponement on account of inability of counsel for appellant to prepare for trial because of other engagements was denied, and a motion for continuance on the ground of the absence of Cranfield, said to be a material and indispensable witness for appellant, was overruled. But Cranfield's testimony, as set forth in the motion for continuance, would have been merely cumulative to that of appellant's witness, Carter. The absence of a witness whose testimony would have been cumulative is not grounds for continuance. Sneed v. State, 47 Ark. 180, 1 S.W. 68; Hamer v. State, 104 Ark. 606, 150 S.W. 142; Hazel v. State, 174 Ark. 1078, 298 S.W. 357.
We have frequently held that the matter of granting a request for a postponement or continuance was one calling for the exercise of sound discretion by the trial court and that this court will not interfere in the exercise of that discretion in the absence of a showing that in denying the postponement or continuance the lower court acted arbitrarily and to the prejudice of appellant. Gallaher v. State, 78 Ark. 299, 95 S.W. 463; Kilgore v. State, 99 Ark. 648, 137 S.W. 1092; Joiner v. State, 113 Ark. 112, 167 S.W. 492. The record here fails to show any such arbitrary action by the lower court and we cannot say that the denial of the postponement and continuance was error.
It is urged by appellant that the lower court should have granted his motion for a peremptory instruction for a verdict of not guilty, because the evidence failed to disclose any intent to commit the crime charged. The testimony on behalf of the state tended to establish that appellant, without justification, struck Bryant in the neighborhood of his left eye with a blackjack, and that by reason of this blow his eye was severely injured and had to be removed. "Malice in law may be inferred from the absence of any just cause or excuse for the doing of an act which has caused injury to another." 34 Am. Jur., 685. Men are presumed to intend the reasonable and natural consequences of their acts. Howard v. State, 34 Ark. 433; Hankins v. State, 103 Ark. 28, 145 S.W. 524; Rhine v. State, 184 Ark....
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...195 Ark. 67, 111 S.W.2d 527; Morris v. State, 197 Ark. 778, 126 S.W.2d 93; French v. State, 205 Ark. 386, 168 S.W.2d 829; Pate v. State, 206 Ark. 693, 177 S.W.2d 933. A somewhat similar question was involved in the case of Griffin v. State, 165 Ala. 29, 50 So. 962, in which it was held that......
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...Furthermore, the evidence of the desired witness (as stated by defendant's counsel) would have been merely cumulative. See Pate v. State, 206 Ark. 693, 177 S.W.2d 933. The defendant had already subpoenaed six witnesses under section 43-2001, Ark.Stats. of 1947; and these six witnesses were ......