Rogers v. State

• Decision Date: 13 February 1922
• Docket Number: 151
• Citation: 237 S.W. 435,152 Ark. 40
• Parties: ROGERS v. STATE
• Court: Arkansas Supreme Court

237 S.W. 435

152 Ark. 40

ROGERS v. STATE

No. 151

Supreme Court of Arkansas

February 13, 1922

Appeal from Benton Circuit Court; W. A. Dickson, Judge; reversed.

Judgment reversed and cause remanded.

Walker & Walker and Duty & Duty, for appellant.

Before a conviction for assault with intent to kill can be sustained, the evidence must show beyond a reasonable doubt that the defendant would have been guilty of either murder in the first or second degree, had death ensued from the assault. 47 Ark. 275; 120 Ark. 494; 125 Ark. 542; 72 Ark 569.

The burden was upon the State, which it has failed to discharge of proving a specific intent to kill. 96 Ark. 55; 49 Ark 156; 54 Ark. 283; 54 Ark. 336 and 489; 94 Ark. 69. Neither has the State proved the other necessary element of malice to sustain the charge. 8 Ark. 451; 10 Ark. 318; 34 Ark. 275; 54 Ark. 335; 72 Ark. 569; 82 Ark. 64.

The court erred in refusing to admit the testimony of D. P. Rogers as to the threats and hostile demonstration toward him by the prosecuting witness, which facts were communicated to the appellant. These acts were part of the res gestae and tended to throw light on the state of feeling existing on the part of Elkins. 135 Ark. 388; 130 Ark. 101; 82 Ark. 595; 55 Ark. 593; 59 Ark. 148; 72 Ark. 436; 29 Ark. 248; 79 Ark. 594; 76 Ark. 495.

Instruction No. 4 correctly stated the law applicable to malice and intent, which are essential ingredients of the offense, and should have been given. 115 Ark. 566; 54 Ark. 283; 34 Ark. 275.

Instruction 9 on the question of reasonable doubt as to the grade of the offense was not covered by any instruction given, and it was error to refuse it. 13 Ark. 712; 114 Ark. 201.

The indictment was defective in that it failed to allege the manner in which the assault was committed. 26 Ark. 323; 27 Ark. 493; 29 Ark. 165; 102 Ark. 595; 34 Ark. 263.

The court erred in not instructing the jury on manslaughter. 91 Ark. 570; 162 U.S. 466; 162 U.S. 313.

J. S. Utley, Attorney General, Elbert Godwin and W. T. Hammock, Assistants, for appellee.

There was abundant evidence of the intent to kill on the part of appellant, and the jury so found, and its verdict will not be disturbed on appeal. 135 Ark. 117; 136 Ark. 385.

Appellant is not in position to complain of the exclusion of the evidence of the father of appellant, as he failed to show what the testimony would have been. 88 Ark. 562; 87 Ark. 123; 133 Ark. 599. The difficulty about which the elder Rogers sought to testify was too remote to be a part of the res gestae. 107 Ark. 87.

It was not error to refuse appellant's instructions No. 4 and 9, as they were covered by others given. 101 Ark. 120.

An indictment for assault with intent to kill need not state the means made use of by the assailant to effect his intent, as in homicide cases. 34 Ark. 275; 13 R. C. L. 804.

Appellant did not request any instruction on manslaughter, and cannot now complain. 95 Ark. 593; 101 Ark. 513; 102 Ark. 588; 110 Ark. 567; 137 Ark. 530.

OPINION

SMITH, J.

Appellant was convicted of assault with intent to kill upon his trial under an indictment which, omitting the formal parts, reads as follows: "The said Earle Rogers in the county of Benton and State of Arkansas on the 11th day of November, 1921, feloniously, wilfully and with malice aforethought did commit an assault on one Alfred Elkins with a deadly weapon, to-wit, a pistol, with the felonious intent then and there to kill and murder him the said Alfred Elkins, no considerable provocation for said assault then and there appearing and the circumstances thereof showing an abandoned and malignant disposition on the part of him the said Earle Rogers, against the peace and dignity of the State of Arkansas." Appellant and Elkins had married two sisters, and both lived on a farm owned by appellant's father, of which appellant had possession under a contract to give his father a third of the crops grown on the place. Elkins was a sub-tenant of appellant, and had possession of a part of the farm under a written contract, which was offered in evidence, but does not appear to have been copied into the bill of exceptions. There was a meadow of about fifteen acres on the farm which Elkins claimed the right to use in common with appellant. This right appellant denied, and he testified that Elkins' right of pasturage was limited under the contract to a part of the meadow, about three acres in extent, which had been separately fenced and set apart to Elkins.

Appellant took the contract to a justice of the peace of the township, and was advised by him that the contract gave Elkins no right to use the part of the meadow not assigned to Elkins.

Elkins persisted in using the entire meadow, and a bitter feeling sprung up between him and appellant on that account. Appellant turned Elkins' cattle out of the meadow on three occasions, and each time Elkins put them back in the meadow.

Appellant's father was called as a witness, and was asked to tell, in his own way, what the trouble was between his son and Elkins, but the prosecuting attorney objected and assigned the following objection: "I can see the purpose of that--trying to get in that knife deal again, and I object." The court ruled that the witness might testify as to any previous trouble between appellant and Elkins. The witness then proceeded to state that on Monday, before the shooting occurred on the following Thursday, he saw Elkins, and told him he had no right to put his cattle in the meadow, and not to do so, and that Elkins called him a liar and went for his knife. The prosecuting attorney objected that "this witness has insisted on making that statement about the knife. I asked the court to tell the jury it is not competent evidence and not to consider it, after the court has sustained an objection three or four different times." The court ruled: "Just strike that out, Mr. Stenographer, and also the jury will eliminate that from their consideration of the case." Thereupon counsel for appellant said: "The defendant insists that the testimony is competent, and will be followed up by showing that the acts and conduct of the prosecuting witness at that time were communicated to the defendant, and goes to show the state of mind of the parties at the time of the difficulty and who was the aggressor, and the defendant excepts to the ruling of the court in refusing to permit said testimony." An objection to this question was sustained and exceptions saved, whereupon counsel for appellant asked the following question: "Now, Mr. Rogers, I want to ask you this question, and don't answer it until Mr. Nance objects. I will ask you if on that occasion when you stated that Elkins went after his knife and called you a liar, if you immediately communicated that fact to your son?" The prosecuting attorney objected to this question upon two grounds, first, that the question was immaterial, and, second, an objection had been sustained to it. In ruling upon this objection the court said: "I will just sustain another objection."

The testimony as to what happened at the time of the shooting can not be reconciled. According to the testimony on behalf of the State, the appellant was told by his mother that Elkins' cattle were again in the meadow, whereupon appellant armed himself with a pistol and went at once to the meadow, where he met Elkins and assaulted him without provocation, first striking him with his fist, then the pistol, and thereafter firing twice at him, one of the shots taking effect in Elkins' leg. According to appellant, he went to the meadow for the purpose only of again turning the cattle out. It had been communicated to him that Elkins had said he would "beat the ears down" of the appellant or any one he found turning his cattle out of the meadow, and that he armed himself for protection in the event only that he was assaulted, and that he was assaulted by Elkins, who knocked his hat off with the pistol and struck him in the face with his fist, whereupon he shot Elkins through...