Smith v. State

• Decision Date: 30 September 1940
• Docket Number: 4183
• Citation: Smith v. State, 143 S.W.2d 190, 200 Ark. 1152 (Ark. 1940)
• Parties: SMITH v. STATE
• Court: Arkansas Supreme Court

143 S.W.2d 190

200 Ark. 1152

SMITH v. STATE

4183

Supreme Court of Arkansas

September 30, 1940

Appeal from Polk Circuit Court; Minor W. Millwee, Judge; reversed.

Judgment reversed and cause remanded.

George Edwin Steel and George R. Steel, for appellant.

Jack Holt, Attorney General, and Jno. P. Streepey, Assistant Attorney General, for appellee.

OPINION

MEHAFFY, J.

Appellant was charged in an information filed by the prosecuting attorney with assault with intent to kill. Appellant filed a statement alleging that he was not guilty of the crime charged against him, by reason of insanity.

On January 15, 1940, the judge of the circuit court committed him to the state hospital for a period of thirty days for observation and investigation as to his sanity at the time of the alleged commission of the crime, and at the present time.

The appellant filed a motion for continuance on account of the absence of a material witness for the defense. The motion for continuance was overruled, appellant was tried and convicted and his punishment fixed at one year in the penitentiary.

Motion for new trial was filed and overruled, and the case is here on appeal.

Guy Fulsom, a witness for the state, testified in substance that he went down to see some parties on October 28th, and appellant was there; witness arrived there about 7:30 and remained there until 3:30 in the afternoon; appellant was there when witness left; they played cards; appellant was in the game, and after the game was over and witness started to leave appellant called to him and told him he guessed they had better settle their little difference; witness told him he did not know they had any, and about that time appellant hit witness with his fist; witness then hit appellant and knocked him to his knees and threw him down, but told him if he would go and act like a man he would give him what money he had; he was talking about the money lost in the game; when witness went down there he had $ 3.50, and when he left, $ 6.75; appellant said if witness would let him up he would go on; witness turned him loose and handed him $ 6.75; when witness looked back appellant was on him with a knife and he ran off; appellant had had a drink or two and witness had taken two drinks; saw appellant about an hour later; he was standing by witness' gate by a tree; heard a gun shot and then heard appellant talking; he was 23 feet from the door; witness' wife went to the window and told appellant that if he would go on she would give him what money they had, and he said he had all the money he wanted, but he was going to kill witness; pulled the trigger and the shot hit the wall on the other side of the baby's crib; he fired two shots; after witness's wife talked to him he shot again; had never had any difficulty with appellant before; had known him about six months, but did not know his mental condition; five parties had been in the poker game; all of them had drunk some liquor; appellant was not drunk and had no cause to be mad at witness; witness gave appellant back the merchandise order and appellant wanted to play it all at once; witness walked off; appellant was not in good humor because witness would not play $ 16 at one time; does not know whether appellant knew that witness was in his house or not; witness was never convicted of anything in Polk county, though he did submit and pay a fine for being drunk.

Mrs. Guy Fulsom testified to substantially the same facts that were testified to by Guy Fulsom.

Olan Oglesby testified in substance that the parties were playing poker and pitch and he saw trouble from a distance of 50 yards; afterwards saw appellant in the road with a shotgun; shot at the house where witness lived; later heard three gun shots in the direction of Fulsom's house; knew it was appellant and witness went down the road to Fulsom's; heard three shots; heard Fulsom tell appellant he would give appellant his money if he would leave him alone and they got in a fight.

Several other witnesses testified about the shooting by appellant, and appellant introduced evidence showing that he had been committed for insanity and also evidence that relatives had been insane, and evidence of physicians who testified to his insanity.

In rebuttal the state introduced Dr. Frank Englar assistant physician on the staff of the Arkansas State Hospital; examined the appellant on numerous occasions and presented him before the staff composed of six doctors for his final diagnosis; they diagnosed him, based on his history, as being without psychosis; that is, not insane; witness had the original file showing when appellant was admitted to the hospital; witness, however, was not at the hospital at the time and only knew what the record showed; it showed that he was in the hospital first in June, 1937, and paroled to his wife on July 15, 1937.

The official record of the hospital was introduced as an exhibit over the objection of appellant; the record further showed that on October 6, 1937, he was readmitted and discharged on October 19, 1937; and was admitted to the hospital on January 16th of this year. The diagnosis made on the two former occasions and the record, shows that appellant was without psychosis. The case history of appellant made under provisions of Initiated Act No. 3, Acts 1937, p. 1384, when he was admitted to the hospital in January, 1940, was offered in evidence. Appellant objected to the introduction of this record, but his objection...