Roberson v. State
| Decision Date | 13 October 1913 |
| Citation | 160 S.W. 214,109 Ark. 420 |
| Parties | ROBERSON v. STATE |
| Court | Arkansas Supreme Court |
Appeal from Miller Circuit Court; Jacob M. Carter, Judge; reversed.
Judgment reversed and cause remanded.
Webber & Webber, for appellant.
1. To constitute assault with intent to kill, or, under the statute (Kirby's Dig., § 1588), a specific intent to take life must be shown. 91 Ark. 505; 54 Id. 489.
2. The question as to whether defendant had invited or provoked the assault should have been included in the court's charge. 73 Ark. 406; 95 Id. 431; 104 N.W. 191.
3. It was error to charge the jury that appellant was guilty of assault with intent to kill, or not at all. The court should have charged the jury as to the lower grades of the offense. 72 Ark. 569; 43 Id. 289; 21 Cyc. 111; 2 Id. (Ill.) B., p. 748; 12 Id. 639-640, 18A.
Wm. L Moose, Attorney General, and Jno. P. Streepey, Assistant, for appellee.
1. A general objection to all the instructions is not sufficient. A charge of assault with intent, etc., includes murder in the second degree. 64 Ark. 69. No specific objection to the instructions were made.
2. It is the duty of the judge to determine whether there is any evidence at all justifying a particular instruction. 50 Ark 506; 52 Ark. 345-7.
Appellant was convicted in the Miller Circuit Court on an indictment charging her with the crime of an assault with intent to kill one Ethel Butler. The indictment alleged that the assault was made by striking and cutting with a hatchet. The testimony for the State tended to show that Ethel Butler was on her way home, had passed appellant's house, and was walking along talking to one of the neighbors; that appellant came upon the prosecuting witness when the latter was not looking, and cut her with a hatchet three times in the head and once on the shoulder; that she continued to cut Ethel Butler after she was down and unconscious; that the prosecuting witness had said nothing to appellant, nor appellant to her; that she had no previous quarrel with appellant, and had not threatened her. In other words, the testimony on behalf of the State tended to sustain an assault with intent to kill as laid in the indictment.
On the other hand, the testimony for the appellant tended to show that Ethel Butler, on the day before the rencounter, had shoved appellant off of the sidewalk and had made some insulting remarks to her; that on the day of the rencounter Ethel Butler was seen going in the direction of appellant's house, and was heard to say that she was going to appellant's, and that appellant had to take back something or she (Ethel) would whip her; that Ethel Butler did go to where appellant lived, and stopped just off the sidewalk at appellant's gate; that the prosecuting witness called appellant, telling her to come out; that appellant was at her well in the yard, drawing water; that she went in her house, put up the water, came out and started out of her gate, when the prosecuting witness went toward her with a drawn knife, whereupon appellant drew the hatchet and struck the prosecuting witness three times with it.
Appellant testified that the prosecuting witness had been threatening all along to whip her; had shoved her off the sidewalk; that she would say things about appellant every time the latter went to market. When the prosecuting witness threatened to whip appellant, she was accompanied by Larcenia Hall. Appellant testified that she had nailed some planks on the porch, and that was the reason she had the hatchet out there; that she was going to have the prosecuting witness arrested, and so told the prosecuting witness; that she picked up the hatchet as she started out to the gate to protect herself in case the prosecuting witness attacked her; that when she got out of the gate and made a turn to go to the officer's house, the prosecuting witness met appellant; the prosecuting witness had a long, big knife; she ran up and drew back to cut appellant, when appellant struck her with the hatchet. Appellant testified that the reason she didn't wait until the prosecuting witness left to go for an officer was, that she had waited so many times and had not gone, and she had taken insults until she was tired of it. She was afraid of the prosecuting witness. States that she was fighting to protect herself from the knife. They were facing each other. The prosecuting witness had been meddling with appellant so much "she got tired of it, and was going to have her arrested." The testimony of several witnesses tended to corroborate appellant.
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