Vail v. State

• Decision Date: 16 January 1980
• Docket Number: No. CA,CA
• Citation: 593 S.W.2d 491,267 Ark. 1078
• Parties: Roy VAIL, James Vail and Ronald Adcock, Appellants, v. STATE of Arkansas, Appellee. CR 79-99.
• Court: Arkansas Court of Appeals

Page 491

593 S.W.2d 491

267 Ark. 1078

Roy VAIL, James Vail and Ronald Adcock, Appellants, v. STATE of Arkansas, Appellee.

No. CA CR 79-99.

Court of Appeals of Arkansas.

Jan. 16, 1980 Released for Publication by the Court of Appeals Feb. 6, 1980.

A. James Linder, Hamburg, for appellants.

Steve Clark, Atty. Gen., by Dennis R. Molock, Asst. Atty. Gen., Little Rock, for appellee.

NEWBERN, Judge.

The appellants were charged with first degree battery and were found guilty of the lesser included offense of third degree battery, a class A misdemeanor. Ark.Stat.Ann., § 41-1603 (Repl.1977). In points one, two and four of their brief, the appellants argue insufficiency of the evidence as a basis for conviction, error by the court in failure to instruct a verdict and error in failure of the court to enter a judgment of not guilty despite the jury's verdict of guilty. We will address these points together as they all deal essentially with sufficiency of the evidence, and we find the evidence was sufficient to make a jury question. We decline to consider the appellants' third point which urges reversal for failure to consider and failure to give instruction proffered by the appellants. The appellants did not abstract any of the instructions proffered or any instructions given by the court. See Ellis v. State, 267 Ark. 690, 590 S.W.2d 309 (Ct.App.1979), in which this court discusses the history of the requirement that instructions be abstracted. See also, Rule 9(d) of the Arkansas Supreme Court and Court of Appeals, and Williams v. Fletcher, Ark.App., 593 S.W.2d 48 (CA 79-231, decided December 19, 1979). Another reason we decline to consider this point is that no case or other authority is cited in the appellants' brief, and no argument is made from which we might evaluate whether the appellants were prejudiced in any way by the court's handling of their proffered instructions. Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977).

George Pugh kept beer in returnable bottles in a cooler in a structure adjacent to his home. He kept a close watch on the beer, placing exactly eight bottles in his ice box at a time. He suspected the beer was being pilfered, and on one occasion previous to the night of the event giving rise to his case, he chased an intruder from his yard and fired a shot, apparently for the purpose of frightening the intruder.

On the evening of November 26, 1977, Mr. Pugh observed some of his beer was missing. He also observed a car moving slowly up and down a road behind the wooden fence at the rear of his property. Mr. Pugh obtained his loaded .22 caliber pistol from his kitchen and walked into his back yard. It was dark and although his outdoor night light was on, he saw no one. He testified that he simultaneously heard and felt a gunshot and received a wound in his face. He then ran for cover and fired his own weapon several times in various directions. He was not firing at a target, as he still saw no one. He was not seriously injured by the bullet, and he thereafter got in his car and drove it on the road behind his house where the car he had seen earlier was parked. He observed appellant Adcock in the parked car. Without getting out of his car, he returned to his home. The sheriff's office was notified, and Mr. Pugh accompanied Deputy Bates in the sheriff's vehicle.

They first sought to investigate the occupants of a pick up truck moving on a street near Mr. Pugh's house, but on seeing the truck's occupants, a young couple, decided they could not have been involved in the incident. They then drove up to the parked car earlier referred to and found it occupied by the appellants. The appellants professed not to know what was going on. They...