Taylor v. State
| Decision Date | 29 April 1907 |
| Citation | 102 S.W. 367,82 Ark. 540 |
| Parties | TAYLOR v. STATE |
| Court | Arkansas Supreme Court |
Appeal from Monroe Circuit Court; Eugene Lankford, Judge; affirmed.
Judgment affirmed.
H. A Parker, for appellant.
1. Before one can be convicted of assault with intent to kill it must necessarily be found that, had death resulted from the assault, it would have been murder. 72 Ark. 569.
2. The court erred, in its charge as to accessories, in simply reading the statute without explanation to the jury. 63 Ark. 477.
3. No evidence of acts or declarations of a conspirator should be admitted against the accused until the fact of a conspiracy is first shown or a prima facie case is made either against them all or against those affected by the evidence proposed to be offered. 77 Ark. 450.
4. The argument of the prosecuting attorney attributing motives for the crime not warranted by the evidence was improper and prejudicial. 72 Ark. 427; id. 461; id. 130; 65 Ark. 389; 74 Ark. 489; id. 210.
Wm. F. Kirby, Attorney General, and David Taylor, Assistant, for appellee.
1. Standing alone, the instructing as to assault with intent to kill is incomplete, and would probably be misleading; but it is accompanied by another instruction which plainly shows that the assault must be felonious, willful and with malice aforethought. Instructions are to be construed as a whole. The test is, did they fairly present the law of the case? 79 Ark. 460; 82 Ark. 64; 73 Ark. 158; 74 Ark. 431; 69 Ark. 558. There was no objection in the instruction in the form given, nor any request for a more specific instruction, and appellant can not now complain. 67 Ark. 421.
2. Leading questions are at times permissible, especially where the witness is unwilling. It is a matter largely in the discretion of the trial court. Wigmore on Ev. §§ 770-776.
3. It was competent to introduce evidence in this case of a conversation, at four o'clock on the day of the shooting, between Sarah Holland and Carter, one of the participants in the crime, as tending to prove a conspiracy between his co-participants, one of whom is on trial. 77 Ark. 444; 81 Ark. 173.
This is an appeal from a judgment convicting the defendant of the crime of an assault with intent to kill and sentencing him for five years' imprisonment in the State penitentiary.
The facts, briefly stated, are as follows: One Herbert Marsh was in January, 1906, the manager of a plantation in Monroe County known as the "Redmond place." A negro woman named Sarah Holland lived in the cabin on the place with her family of children, two boys and three girls, the oldest of whom was some sixteen or seventeen years of age. The woman had been ordered by Marsh to vacate the house in which she and her children lived. On the 1st day of January, 1906, Marsh went to her and insisted that she must move out of the house without further delay. Just before dark of the same day he returned to the house and ordered her to move at once, and remained there until she had taken her furniture and other household goods out of the house. The woman and her children then went away, leaving her household goods on the ground near the house, but after they had gone some distance they met other negroes who lived on the place, and with them she returned to the house. She says she did this because it was beginning to rain, and one of the negroes advised her to return and put her flour and household goods on the porch of the house. When they arrived at the house, it was about dark, and Marsh was not there, but he returned soon afterwards, and while he was there was fired upon by some of the negroes. Marsh was struck by several number four shot of the size used in shooting squirrels. His injuries at first seemed to be serious, but he recovered. Just how this shooting took place, or whether there was any provocation for it beyond the conduct of Marsh in compelling the woman to move out of the house, is not shown by the evidence. Though there were several negroes present at the time of the shooting who testified at the trial, none of them gave or was asked to give a connected story of the affair, and neither of them made any statement as to what Marsh was doing at the time he was shot.
One of the principal witnesses for the State was Sarah Holland, the woman who had been ejected from the house, and the manner in which the facts of the case were brought out can be best shown by giving her examination-in-chief as it appears in the record. The following is the principal part of her examination-in-chief:
.
Here counsel for defendant objected on the ground that the questions were leading. "He is just pumping it out," said counsel. "We have an unwilling witness, and I have to pump it out," replied the counsel for the State, and the court overruled the objection.
While it may have appeared to the circuit judge that the reluctance with which the witness testified justified him in permitting leading questions to her, still we think that the method by which the facts in this case were brought before the jury was not free from objection. None of those witnesses were asked to give their own account of how the shooting took place as it appeared to them. After having been asked the preliminary questions showing that Marsh had been shot and that they were present, the witnesses should have been directed to go ahead and tell all about how the shooting occurred; in other words, to give a history of the immediate facts connected with the assault as it appeared to them. If they omitted any of the material facts, their attention could have been drawn to these later. In that way we would have had something like a connected story of the crime told in the witnesses' own way as it impressed itself on his or her mind. As it is, the story is brought out by questions from the prosecuting attorney and monosyllabic replies of the witnesses, and much of it is not brought out at all. As before stated, not a question was asked concerning the actions of Marsh at the time...
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