89 Ark. 213 | Ark. | 1909
(after stating the facts.) The instruction given at the request of the State was incomplete. It authorized the jury to find appellant guilty if he “feloniously, wilfully and with malice aforethought, with a deadly weapon, to-wit, an ax, did strike at or make an effort ¡to strike Carter with intention to murder and kill him.” This would not constitute an assault unless at the time appellant struck at or made an effort to strike Carter the latter was in striking distance, and appellant therefore had the ability to inflict the injury upon him, in the manner alleged. Kirby’s Digest, § 1583; Pratt v. State, 49 Ark. 179; Anderson v. State, 77 Ark. 37; Williams v. State, 88 Ark. 91. The instruction in itself should have declared a correct proposition of law.
The error- of the court in giving this instruction was not cured by the giving of appellant’s request number 1, which was correct. The independent propositions were not consistent with each other. Goodell v. Bluff City Lumber Co., 57 Ark. 203; Selden v. State, 55 Ark. 393. Therefore the charge, when considered as a whole, was made up of contradictory propositions. Conflicting instructions ¡should not be given. Hartgrove v. Southern Cotton Oil Co., 72 Ark. 31; Rector v. Robins, 74 Ark. 437.
There was no evidence to show that appellant at any time had the present ability to injure Carter in the manner alleged in the indictment. It .is argued that appellant might havfe thrown an ax at Carter and have injured him with it in that manner. But the proof does hot show that appellant made any effort to injure the prosecuting witness by throwing the ax at him. Even if an injury could have been inflicted in that manner, it was not attempted. Appellant must be convicted, if at all, upon the attempt he actually made, and not upon what^ he might have done had he made the attempt. So' the evidence is not sufficient to sustain the verdict, and the court should have set it aside for that reason.
Eor the errors indicated the judgment is reversed, and the cause is remanded for new trial.