Washington v. State

• Decision Date: 16 June 1930
• Docket Number: 41
• Citation: Washington v. State, 28 S.W.2d 1055, 181 Ark. 1011 (Ark. 1930)
• Parties: WASHINGTON v. STATE
• Court: Arkansas Supreme Court

28 S.W.2d 1055

181 Ark. 1011

WASHINGTON v. STATE

No. 41

Supreme Court of Arkansas

June 16, 1930

Appeal from Pulaski Circuit Court, First Division; Abner McGehee Judge; affirmed.

STATEMENT OF FACTS.

George Washington was convicted before a jury and sentenced to death under an indictment for murder, the body of which reads as follows:

"The grand jury of Pulaski County, in the name and by the authority of the State of Arkansas, accuse George Washington James Turnage and Lindsey Turnage of the crime of murder in first degree, committed as follows, to-wit: The said George Washington, James Turnage and Lindsey Turnage, in the county and State aforesaid, on the 7th day of December, A. D. 1929 unlawfully, willfully, feloniously and with malice aforethought, and after deliberation and premeditation, and with a felonious intent then and there to rob Wm. H. Roberts did assault, kill, and murder the said Wm. H. Roberts with a certain pistol loaded with gunpowder and bullets, and then and there had and held in the hands of them, the said George Washington, James Turnage and Lindsey Turnage, against the peace and dignity of the State of Arkansas."

According to the testimony of Mrs. W. H. Roberts, her husband was shot and killed on the evening of December 7, 1929, at their filling station on the Galloway Pike near Rose City, in Pulaski County, Arkansas. The witness, her husband, and C. J Gordon were sitting in the front room of their filling station and sandwich stand and saw three negroes pass a window in front of their place of business. The witness heard them go around towards the back and told her husband to go see what they wanted. He went out to the back, and she heard two shots in rapid succession, and then heard five more shots. Her husband came in at once and said: "They killed me." The first two shots were not as loud as the last five. Her husband was carried in an ambulance to a hospital, and died two days later. According to the testimony of physicians who attended the deceased until his death, he died as a result of the gunshot wounds.

According to the testimony of A. R. Lamb, a deputy sheriff, he arrested the defendant, George Washington, at his home on Mark Valentine's place near Little Rock. He found the defendant in bed, and the latter stated that he had the flu. An examination showed that there was a bullet through the defendant's breast. The deputy sheriff told the defendant that he was the man they were looking for, and that he had shot a man at a filling station. He asked the defendant who was with him, and the defendant replied, "James and Lindsey Turnage." On the next day the deputy sheriff went back to the defendant's house and found a pistol hidden over the top of the door with four cartridges in it, two of which had been recently exploded. The deputy sheriff weighed the bullets taken from the deceased's body and could tell by comparing their weight with that of the bullets remaining in the pistol found that they were of the same caliber.

According to the testimony of R. A. Cook, sheriff of Pulaski County, the defendant voluntarily confessed to him that he had shot and killed W. H. Roberts. No promises whatever were made to the defendant to induce him to confess, and he made the statements freely and voluntarily. The defendant admitted that he did the shooting, but stated that Roberts shot first.

According to the testimony of Leslie Hall, a deputy sheriff of Pulaski County, he guarded the defendant one day while he was in the hospital, and the defendant asked him what they would do to him if he admitted having killed Roberts. The defendant told him that they would probably electrocute him. The defendant stated that the Turnage boys suggested that they make some change, and they agreed on the plan and went to the scene of the shooting. The defendant admitted having shot Roberts, but stated that the latter shot first.

According to the testimony of C. J. Gordon, he was present at Roberts' filling station when Roberts was shot. The first two shots were fired from a small gun and the last five from a larger gun.

According to the testimony of J. H. Turnage and that of Lindsay Turnage, the defendant shot and killed W. H. Roberts. They admitted going to the filling station with the defendant, but denied they had any part in the killing. They said that they stayed in front of the filling station, and that the defendant said he was going around to the rear and get some change. He told them that he was going to hold up the filling station.

According to the testimony of D. F. Bennett, he was an officer of the North Little Rock police force and assisted in arresting the defendant. In the ambulance on the way to town after the defendant had been arrested, he voluntarily told the witness that he and the Turnage boys went up there to hold up the deceased. The defendant told witness that he shot once.

The defendant was a witness for himself. According to his testimony, he did not intend to rob the filling station when he went down there. He did not shoot at Roberts but one time. He stated that Roberts shot him first. He and the Turnage boys went to the filling station to get something to fix an automobile with. Roberts came to the door and shot him first and then he shot back at Roberts. He carried a gun with him because he was going out to gamble.

The jury returned a verdict of murder in the first degree; and from the judgment and sentence of death, the defendant has prosecuted this appeal.

Judgment affirmed.

Milton McLees and Joe N. Wills, for appellant.

Hal L. Norwood, Attorney General and Pat Mehaffy, Assistant, for appellee.

OPINION

HART, C. J., (after stating the facts).

It is first earnestly insisted by counsel for the defendant that the court erred in refusing to sustain their motion in arrest of judgment. They contend that, inasmuch as the defendant was indicted and tried for murder committed in the perpetration and in the attempt to perpetrate robbery in violation of the provisions of § 2343 of the Digest, the indictment is fatally defective and does not charge an offense under that section. Their contention is based on the allegations of the indictment using the word "intent" instead of the word "attempt" to rob W. H. Roberts. They claim to constitute an attempt, something more than an intention or purpose to commit crime is necessary. It is true that generally speaking the word "attempt" is more comprehensive than the word "intent," including both the purpose and an actual effort to carry the purpose into execution; but, in crimes which require force as an element in their commission, there is no substantial difference between an "assault with intent" and an "assault with attempt" to perpetrate the offense. Smith v. State, 126 Ga. 544, 55 S.E. 475; Johnson v. State, 14 Ga. 55; 2 Bishop's New Criminal Procedure (4th ed.), page 80; and Kelley's Criminal Law and Procedure, (4th ed.) § 486.

By the common law, every homicide committed in the perpetration of a felony was murder, and this, whether there was any precedent intention of doing the homicidal act or not. Rhea v. State, (Neb.) 63 Neb. 461, 88 N.W. 789; Conrad v. State, 75 Ohio St. 52, 8 Ann. Cas. 966, 78 N.E. 957; and 4 Cooley, Black. Comm., star pages 200 and 201.

Our statute has modified the common law rule so that murder committed in the perpetration of or attempt to perpetrate certain named felonies including robbery is deemed murder in the first degree. Crawford & Moses' Digest, § 2343; Palmore v. State, 29 Ark. 248; Rayburn v. State, 69 Ark. 177, 63 S.W. 356; Powell v. State, 74 Ark. 355, 85 S.W. 781; Sheppard v. State, 120 Ark. 160, 179 S.W. 168; Clark v. State, 169 Ark. 717, 276 S.W. 849; and Harris v. State, 170 Ark. 1073, 282 S.W. 680.

As will be seen from the body of the indictment which was set out in our statement of facts, the grand jury charged that George Washington, with the felonious intent to rob W. H. Roberts did assault and kill W. H. Roberts by shooting him with a pistol. This, in plain language, charged the defendant, George Washington, with killing W. H. Roberts with the felonious intent to rob him, or in the attempt to rob him. Consequently, when the indictment charged an assault with intent to kill Roberts, this was necessarily an attempt by violence to rob him. The crime of robbery requires force as an element in its commission, and there can be no substantial difference between an "assault with intent to rob" and an "assault with attempt to rob." Hence a verdict of guilty of murder in the first degree was in conformity with the indictment. Murder committed in the perpetration or attempt to...