Pratt v. State

• Decision Date: 28 May 1887
• Citation: 4 S.W. 785
• Parties: PRATT <I>v.</I> STATE.
• Court: Arkansas Supreme Court

4 S.W. 785

PRATT

v. STATE.

Supreme Court of Arkansas.

May 28, 1887.

Appeal from circuit court court, Boone county.

O. W. Watkins, for appellant. Dan W. Jones, Atty. Gen., for appellee.

SMITH, J.

The defendant was indicted for an assault upon the person of one Oxford with intent to kill him, and was convicted of a simple assault. The evidence tended to prove that there was some ill feeling between the parties; that they met at a country store, the defendant standing on a platform raised thirty inches above the ground, and Oxford being on the ground at the distance of four or five feet from the edge of the platform; that the defendant cursed and abused Oxford, brandishing a Barlow knife, and threatening to cut out his heart; that Oxford was not at all alarmed, but invited the defendant to come down from the platform and fight it out; that this the defendant declined to do, but, advancing to the end of the platform, struck at Oxford, who did not move out of his tracks, although he inclined his body.

We have some doubt whether the defendant had either the intention or the ability to do Oxford any bodily hurt. Nevertheless we should not think of interfering with the judgment, if the jury had been properly charged. The defendant preferred the following requests: "(1) Before the defendant could be found guilty of even a simple assault, you must be satisfied from the evidence, beyond a reasonable doubt, that the defendant attempted to thrust or cut the said Oxford with a knife, and that he possessed a present ability with the knife as used to inflict said injury. (2) Although you may believe from the evidence that the defendant cut or thrust at Oxford with a knife with the intent to kill him, you must find him not guilty of any offense, unless you find beyond a reasonable doubt that he possessed the ability to inflict on the said Oxford an injury with the knife as used. (3) An assault is an unlawful attempt, coupled with present ability, to commit a violent injury on the person of another."

The court refused these prayers, modifying the first two by charging that the jury must be satisfied that the defendant possessed the real or apparent ability to inflict injury, and explaining the last, which is our statutory definition of a criminal assault, to include the idea of an apparent as well as a real ability. Whether the power to do the bodily hurt that was attempted was a necessary element in the crime of assault at common-law is a question upon which text writers and judges are much divided. In 2 Comyn's Digest, "Battery," C, it is said to be no assault if a man strike at another at such a distance that he cannot touch him or put him in fear. This implies that the apparent attempt to strike under such circumstances amounts only to a menace. In 2 Bish. Crim. Law, (6th Ed.) § 23, an assault is defined to be any unlawful physical force, partly or fully put in motion, creating...