Thе defendant, Josie Bell Keith, was tided and convicted under an indictment charging her with assault with intent to kill Sadie Hughes, the punishment being fixed by the jury at five years in the penitentiary. Defendant has appealed, and the first five assignments in the motion for new trial challenge the sufficiency of the evidence to support the verdict and judgment. The defendant and prosecuting witness, Sadie Hughes, are negro women residing at Sparkman, Arkansas.
Sadie Hughes testified that shortly before noon on June 28, 1949, she was walking along the road from her home to the business section of Sparkman when she noticed defendant’s automobile parked in the road ahead. Defendant was seated in the car and the two women spoke to each other as Sadie walked by. Defendant then started her car, drove past the prosecuting witness, and again stopped across the road in front of Sadie. Defendant then jumped out of the car and fired a pistol twice at Sadie who ran a short distance into the front yard and through the front door of the home of Lizzie "Wright. Defendant went into the Wright house thrоugh the back door and chased Sadie from room to room onto the back porch where Sadie grabbed hold of either the gun, or defendant’s arm, and they both fell from the porch to the ground. In the ensuing scuffle on the ground, defendant fired the gun again, the bullet grazing the side of Sadie’s head. According to Sadie, the defendant then said: “Don’t wipe the G-- d— blood off your face; if I had another bullet, I’d finish you up.”
The testimony of Sadie relative to the shooting in front of the Lizzie Wright home was corroborated by the testimony of Dorothy Jean Daniels, a 1-6-year-old girl. Dorothy testified that she was sitting on Lizzie Wright’s front porch and that defendant fired the first shot before she alighted from her car and then fired the second shot as Sadie was running toward the Wright home. The third shot was fired as witness was going around to the back of the house. When she rеached the back yard, defendant was standing beside Sadie with the pistol in her hand and Sadie’s face was bleeding. Shortly thereafter Maggie Cowan, an elderly woman, came up and persuaded defendant to leave.
In opposition to the State’s testimony, defendant offered several witnesses who testified that they heard only the one shot fired in the Wrig’ht back yard. They also testified that in the altercation in the back-yard defendant struck Sadie with the pistol after the latter struck her with a stick and that the gun was discharged in the ensuing scufflе.
Maggie Cowan, a witness for the State, who lived a block and a half away, also testified that she heard only one shot and “didn’t pay any attention to just what it was” until informed of the trouble. On cross-examination she described Sadie’s wound as follows: “I judged it was a shot. It didn’t seem to be a lick that she had struck her. It seemed to be a glance, I just judged, where a bullet had struck. It didn’t cut the width of it except it cut a gash.”
In rebuttal the State offered proof tending to show that some of the defense witnesses were not present at the scene of the shooting.
Defendant interposed the plea of self defense. Although she did not testify in the case, there was evidence by both the State and defendant that the shooting was motivated by defendant’s belief that the prosecuting witness had been having illicit relations with defendant’s husband. The prosecuting witness is a married woman with four children. She strenuously denied having any improper relations with defendant’s husband. The husband of Sadie Hughes testified that defendant came to his barber shop' twice before the shooting and told him that she had heard that her husband was having illicit relations with Sadie. This witness stated that he had never seen anything that would cause him to be suspicious of his wife and told defendant he, “didn’t think there was anything to it.”
We have repeatedly held that in order to constitute the crime of assault with intent to kill a specific intent to take the life of the person.assaulted must be shown, and the evidence' must be such as to warrant a conviction for murder if death had resulted from the assault. Allen v. State,
The most serious question in the case arises in connection with the sixth assignment in the motion for new trial whiсh alleges error in the court’s ruling on the State’s objection to certain testimony of the witness, Benjamin Daniels. This witness testified that about a month before the shooting Sadie Hughes told him to tell defendant that she, Sadie, was having improper relations with the defendant’s husband; that shе had an automatic and was ready any time. The prosecuting attorney objected to that part of the testimony concerning improper relations between Sadie and defendant’s husband. In sustaining the objection the court ruled as ■ follows: “Ladies and gentlemen of the jury, the only purpose for which this testimony could be given would be to go to the credibility of the prosecuting witness when she testified she had had no relationship with the husband of the defendant and for that purpose you may consider it but not as a defense to this allegеd crime.” Daniels further testified that when Sadie Hughes asked him to deliver the message to defendant, he informed her that he was not a news carrier. There is no showing that defendant ever received information of the alleged conversation.
In Flowers v. State,
It is noted that the rule stated is predicated upon a showing that the accused had received information of the illicit relations between his wife and the person assaulted. There is an absence of proof in the instant case that defendant was ever infprmed of the alleged conversation between Sadie Hughes and Benjamin Daniels and no passion could be aroused or рrovocation furnished by a statement which was never communicated to the defendant.
In some jurisdictions evidence of improper conduct by a deceased toward defendant’s wife has been held admissible in homicide cases, even though uncommunicatеd to the defendant, in support of a plea of self-defense where such evidence tends to shed light as to who was the aggressor. See Anno. 44 A. L. R 860. The record shows that the testimony objected to in the instant case was not offered for that purpose, and the fact that defendant voluntarily entered into the difficulty with the prosecuting witness and was the aggressor throughout seems to be undisputed. Moreover, other evidence was admitted without objection tending to show that defendant did receive information from other sources relative to alleged improper relations between her husband and Sadie Hughes, and the jury was told in Instruction No. 10 that it could not convict defendant of assault with intent to kill if she acted under a sudden heat of passion caused by a provocation apparently sufficient to make such passion irresistible. Since it was not shown that defendant was ever informed of the conversation between Sadie Hughes and Benjamin Daniels, we think the court properly limited the jury’s consideration of such testimony.
Assignments Nos. 7, 8, 9 and 11 of the motion for new triаl allege improper influence upon and misconduct of the jury which resulted in defendant’s not receiving a fair trial. In the absence of anything in the record to support these assignments of error, they will not be considered. Conley v. State,
In assignments 10 and 12 error is allegеd in the court’s refusal to declare a mistrial when the prosecuting attorney asked Benjamin Daniels on cross-examination: “Q. Isn’t it a fact that all the colored people are afraid of Josie Bell Keith?” The court promptly sustained defendant’s objeсtion to the unanswered question, told the jury that the question was improper and further asked that each juror raise his hand if he could and would disregard the question. The record reflects that each juror raised Ms hand. The action of the trial court removed any prejudiсe resulting* from the unanswered question. Jutson and Winters v. State,
Assignment No. 13 is that the court erred in holding Sterling Hughes, a 10-year-old boy, not qualified to testify. In the course of the examination of the boy by counsel and the court, questions were asked and answers given as shown below.
Another well settled rule is that the quеstion of competency is left to the sound discretion of the trial judge and in the absence of clear abuse of the judicial discretion exercised, it is not reviewable upon appeal. Yother v. State,
The last assignment of error is that the court erred in giving instructions 2 to 14, inclusive. There was only a general objection to each of the instructions which were given on the court’s own motion. We have carefully examined the instructions and find that they correctly declare the law as generally given in such cases. None of the instructions are inherently erroneous and we do not review the ruling of the trial court unless a specific objection is made to such instructions. Tong v. State,
Other alleged errors are argued in the brief which were not brought forward in the motiоn for new trial and no objections were made to the ruling of the court on such matters at the trial. We find no prejudicial error, and the judgment is affirmed.
Notes
Q. What happens to boys and girls that don’t tell the truth? A. They tell stories. Q. What happens to them if they tell stories? A. I don’t know. Q. What does the Sunday School teacher tell you happens to them if they tell lies or stories? A. I don’t know. Q. Do you know it is wrong to tell a story? A. Yes, sir. Q. Can you tell this jury the truth about what happened over there near your home about a year ago? A. Yes, sir. Q. Do you remember about it and can you tell them? A. Yes, sir. By the Court: Q. Boy, what would happen to you if you were to tell a story, would you be punished in any way if you should tell a story? A. Yes, sir. Q. Who would punish you? A. Whipping. Q. Would you get any other punishment besides that? A. I don’t know. By the Court: I don’t believe he understands the solemnity of an oath. By Mr. Trussell: Q. Whеn I asked you if you went to Sunday School do they teach you anything about God in Sunday School? A. Yes, sir. Q. What do they tell you in Sunday School will happen to bad boys that do wrong and tell lies? A. Go to jail. Q. Do they go anywhere else? A. Yes, sir. Q. Where do they go, did they tell you anything about that? A. No, sir.