Smith v. State
| Decision Date | 03 July 1888 |
| Citation | 8 S.W. 941,50 Ark. 545 |
| Parties | SMITH v. STATE |
| Court | Arkansas Supreme Court |
APPEAL from Scott Circuit Court, JOHN S. LITTLE, Judge.
STATEMENT.
The appellant, Smith, was jointly indicted with two other persons, for the murder of S. B. Cauthron. The indictment charges that the offense was committed by shooting the deceased with a gun, and the evidence shows that he was waylaid and shot on Saturday night, November 19, 1887, and that he died on the Wednesday evening following. At the time he was shot Cauthron was at a farm house about five miles from home, and remained there until the next Monday when he was removed to his own house. On the trial of the appellant A. C. James, a regular practicing physician testified:
That he was called to see Cauthron about ten o'clock in the forenoon of the day after he was shot. The morning was cool and the night before had been cool. He found Cauthron lying on a pallet before the fire, quite feeble and suffering from a shot under the right shoulder blade, about two inches to the right of the backbone. The shot ranged around the body about eight or ten inches, and the witness cut it out just at the front and under the right arm, where it was imbedded in the flesh to the depth of about one inch. The wound was purely a flesh wound--the ball having struck no bone, and its greatest depth, which was under the shoulder blade, did not exceed one and a half inches. Elsewhere the depth of the wound did not exceed one inch. The ball had struck no vital part and the wound was not necessarily fatal. Cauthron had contracted a slight cold and the lower lobe of his right lung was inflamed. He had symptoms of pneumonia. A ball of the size of that which was taken from his body, striking where it did and taking its direction, would be likely to bruise the lung and cause pneumonia. If pneumonia resulted from the wound, the wound would aggravate the pneumonia. The witness visited Cauthron again on the morning next after that on which his first call was made, and found him doing very well "but the inflammation had increased to some extent." He consented to the removal of Cauthron to the latter's house and gave him some quinine to stimulate him for the trip. He gave him no other medicine of any kind either for his lung or for his wound. He thought there was more danger from the affection of the lung than from the wound. He also testified that the ball referred to was about size 44.
Other facts are stated in the opinion. The appellant asked the court to give the following instruction which was refused:
"If the jury believe from the evidence beyond a reasonable doubt, that the defendant participated in the shooting of deceased, but fail to find that death resulted from said wound, they may find defendant guilty of an assault with intent to kill, but not of murder or manslaughter."
The defendant was convicted of murder in the first degree and moved for a new trial. His motion was overruled and he prayed an appeal which was allowed by one of the judges of this court.
Judgment reversed and caused remanded.
J. H. Evans, E. Hiner and T. C. Humphrey, for appellant.
1. The court erred in refusing to give the jury instruction number 5--that if the jury find from the evidence beyond a reasonable doubt that defendant was present and participated in the shooting of deceased and fail to find that death resulted from the wound, they may find defendant guilty of assault with intent to kill, but not of murder or manslaughter. 45 Ark. 464; 28 Id., 155; Whart. Cr. Law, 9th Ed., sec. 55, 157-8, 163; 28 Ark. 531; 37 ld., 433; Benton v. State, 30 Id.
C. A. Lowers, Prosecuting Attorney, for appellee.
The fifth instruction is abstract, and there was no proof that deceased died of any cause save the wound. Besides the court had already fully instructed the jury on this point in other instructions, to the effect that deceased must have died from the wound, or the effects of the wound, or disease produced by the wound, before they could convict, etc. 28 Ark. 155.
Dan W. Jones, Attorney General, for appellee.
A case of murder in the first degree was made out for the jury. There was no evidence tending to convict appellant of a lower grade of homicide; and the instructions of the court as to murder alone were sufficient. For the same reasons the court properly refused instruction number 5. 30 Ark. 328; 34 Id., 469; 36 Id., 242; 36 Ib., 284; Fagg v. State, ante, 506.
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