Allen v. State

Mar 22, 1915
Reporters:
, ,
Before:
Wood
Wood, J.,

(after stating the facts). Appellant’s prayer for instruction No. 3 was correct. Chowning v. State, 91 Ark. 503-5, and cases therein cited.

(1-2) But the court correctly defined the essential ingredients of an assault with intent to kill in- the language of our statute, .section 1588, Kirby’s Digest. This charge was ‘sufficiently specific to cover the declarations of law contained in appellant’s prayers 3 and 4. Moreover, appellant’s prayer No. 4 was not the law; it told the jury that ‘before they could convict the defendant they must find that he shot at Dick Choate with a pistol after deliberation, with the specific intent to ‘kill him. Where the assault is made with a deadly weapon with the specific intent to kill the person assaulted, and where no considerable provocation appears, or where the circumstances show an abandoned and wicked disposition upon the part of the assailant* the offense of an assault with intent to kill is established, regardless of whether or not the assault was committed with deliberation. Appellant’s prayer No. 4 contains a correct definition of express malice, but if an asasult be committed with the specific intent to take life, and with a deadly weapon,.under circumstances which show implied malice, it will be sufficient to constitute the crime of an assault with intent to kill, even though there be no express malice. There must be malice either express or, implied, but either one is sufficient. See Satterwhite v. State, 82 Ark. 64-73.

(3) A charge of assault with intent to kill can not be sustained unless the evidence would have warranted a conviction for murder if death had resulted from the assault, but the proof will be sufficient to sustain the charge where, if death had resulted from the assault it would have been murder in the second degree, coupled with the specific intent to take the life of the person assaulted. See Chowning v. State, supra; Chrisman v. State, 54 Ark. 283.

- (4-5) We do not agree with the learned counsel for the appellant in the statement that “the arrest was not made for an offense committed in the presence of the officer making the arrest.” We are of the opinion that the uncontroverted facts as disclosed by the testimony set forth in the statement show that the arrest was made for an offense committed in the presence of the constable. The facts show that the constable saw the ‘appellant sell a negro a bottle of whiskey and that he arrested the negro to Whom the whiskey was sold and took him to jail; and when he went in the jail, he told his deputy, Choate, to “go get him (.appellant) before he got away. ’’ He was then within fifty or sixty feet of the jail. This testimony was uncontrádioted, and it was sufficient to show that the arrest was made for an offense committed in the presence of the officer making the arrest. The directions by the constable to his deputy, Choate, under the circumstances were tantamount to an arrest made by the constable himself. The distance was so close and the time intervening between tbe sale and the directions given the deputy and ■the arrest made by him were but a part of one transaction and constitute an arrest made by an officer for an offense committed in the presence of the ‘officer making the arrest. It was not necessary for the officer making the arrest under the circumstances to have a warrant in order to constitute tíre arrest a lawful one. The court, therefore, ‘did not err iu refusing appellant’s prayer for’ instructions Nos. 8 and 9 and in admitting the testimony of Crowell showing .the circumstances under which the arrest was made. Section 2125, Kirby’s Digest, provides that ‘ ‘an officer making an arrest may orally summon as many persons as he deems necessary to ‘aid him in making the arrest. ’ ’ Under the circumstances, even if Choate ■had not been a deputy constable, the arrest by him of appellant would have been lawful under the .above section, for the constable would have had the right to have orally summoned Choate to assist him in making the arrest of appellant. The constable’s testimony shows that while he was busy with the arrest and confinement of the other ■party, he ‘directed Choate to arrest appellant “before he got away. ’ ’ This testimony tends to show that the constable anticipated that the appellant would escape, and, therefore, he directed his deputy to arrest appellant in order to prevent his escape.

The instructions of the court correctly submitted the issues to the jury and the evidence was sufficient to sustain the verdict. The judgment is, therefore, affirmed.