Young v. State

• Decision Date: 12 June 1911
• Citation: Young v. State, 138 S.W. 475, 99 Ark. 407 (Ark. 1911)
• Parties: YOUNG v. STATE
• Court: Arkansas Supreme Court

138 S.W. 475

99 Ark. 407

YOUNG v. STATE

Supreme Court of Arkansas

June 12, 1911

Appeal from Columbia Circuit Court; George W. Hays, Judge; affirmed.

Judgment affirmed.

A. S Kilgore and Henry Stevens, for appellant.

I. In assault with intent to kill, there is no presumption of malice. Where death does not result from the act, malice will not be presumed. 65 Ark. 410; 34 Ark. 280; 49 Ark. 159.

2. A new trial should have been granted on account of newly discovered evidence, the tendency of which was to show Lint Green's predetermination to do the acts which brought on the difficulty, with intent to shoot appellant or some one in the crowd. It cannot properly be classed as impeaching or cumulative evidence. 69 Ark. 546.

3. The first instruction was erroneous in the use of the unnecessary words "a deadly weapon," thereby diverting the minds of the jury from the essence of the crime intended to be charged, i. e., the felonious intent to kill and murder.

Hal L Norwood, Attorney General, and William H. Rector, Assistant for appellee.

1. The verdict is in accordance with the law and the evidence. Had death ensued from the shooting, the jury might readily, from the testimony, have found him guilty of murder in the first or second degree. The testimony was ample to show an intent to take human life. 91 Ark. 503.

2. The first instruction closely follows the statute and the indictment under which appellant was convicted. It is not defective because of the use of the phrase "a deadly weapon."

3. The alleged newly discovered evidence was merely cumulative and impeaching in its nature. There was no error nor abuse of discretion in overruling the motion for new trial based on that ground. 69 Ark. 545; 66 Ark. 523; 55 Ark. 324; 47 Ark. 196; 40 Ark. 445; 39 Ark. 221; 72 Ark. 404; 91 Ark. 492; 90 Ark. 435. It is not sufficient that the motion should allege that the defendant did not know, and could not by reasonable diligence have known, of certain material evidence at the time of the trial, but it should show what the acts were which are denominated reasonable diligence, and the facts and circumstances under which the newly discovered evidence became known to him. 85 Ark. 179; 63 Ark. 643; 38 Ark. 498.

OPINION

FRAUENTHAL, J.

The defendant, Barto Young, has appealed from a judgment convicting him of the crime of assault with intent to kill one Lint Green. He urges that the judgment should be reversed for the following reasons: First, because there was not sufficient evidence to sustain the verdict of the jury; second, because the court erred in one of the instructions given by it; and, third, because of newly discovered evidence.

The alleged assault occurred at the home of one of defendant's brothers, where a dinner had been given and a large number of colored people had gathered, amongst whom were the defendant and Lint Green. The festivities continued during the afternoon and up into the night, and about 9 o'clock of said night the defendant shot said Green twice with a Winchester rifle, one of the shots passing through his body and lodging in the back, and the other taking effect in his arm. A number of witnesses testified at the trial of the case, both on the part of the State and of the defendant, as to the cause and circumstances of the shooting, and there is sharp conflict in the testimony which was given by them. The testimony on the part of the State, however, tended to prove that Green was standing on the gallery of the house, and, as one of the witnesses expressed it, was "playing or pranking with a colored girl named Mary Jane Gary. He caught her by the arm, and either because she did not return his advances or for some other reason he slapped her, and then stepped off the gallery and walked to the gate, which was about twenty feet distant. Defendant, who was also at the time on the gallery, at once got a Winchester rifle, which was in an adjoining room, and while standing on the gallery fired at Green, who was then at the gate, and cried out with an oath, "Get out of the way; I am going to kill him." Green fell at the first shot, and defendant advanced further towards him, and shot him a second time, the ball entering the arm. He advanced further on Green with the rifle still in his hands, and Green then pulled his gun, and, while resting on his side, began shooting at the defendant, some of these shot taking effect on the defendant, who ran away.

There was testimony on the part of the defendant which tended to prove that Green fired the first shot, and that defendant returned the fire in self-defense; but this question of fact has been determined by the jury's verdict adversely to defendant's contention, and their finding as to this question of fact is conclusive upon appeal to this court.

It is urged by Counsel for the defendant that the uncontroverted evidence shows that the assault by defendant was made in a sudden heat of passion caused by a provocation on the part of Green, and on this account it is earnestly urged that he should not have been convicted of the crime of assault with intent to kill, even if the assault was not justifiable. But we think that there was sufficient evidence adduced upon the trial of this case to have warranted a conviction of the defendant of murder if the death of Green had ensued from the assault; and therefore that there was sufficient evidence to warrant a conviction of assault with intent to kill, inasmuch as death did not result therefrom. The law will imply malice where there is a homicide with a deadly weapon, and no circumstances of mitigation, justification or excuse appear at the time of the killing; and proof of death under such circumstances will justify a conviction of murder in the second degree. Passion alone will not...