Lead Opinion
The appellant Robert L. Lisenby was charged on information Filed by the prosecuting attorney with the crime of “assault with intent to kill by use of a firearm.” He was found guilty at a jury trial and sentenced to 27 years in the state penitentiary with at least nine years to be served before parole.
On appeal to this court Lisenby has designated eight points on which he relies for reversal, but having concluded that he was entitled to a directed verdict as contended under his third point, we Find it unnecessary to discuss the other assignments.
The information Filed against Lisenby also included a co-defendant, Barney B. Norton, and the specific charge in the information was as follows:
The said defendants on or about the 2nd day of February, 1975, in Garland County, Arkansas, did unlawfully, wilfully and with malice aforethought make an assault upon one Norman Hall and Richard James with a deadly weapon, to-wit: a handgun by then and there shooting at them, the said Norman Hail and Richard James with said gun then and there had and held in the hands of him, the said Barney B. Norton, with the unlawful and felonious intent then and there, them, the said Norman Hall and Richard James wilfully and maliciously to kill and murder, in violation of Ark. Stats. Ann. 41-606, and the use of said Firearm in the perpetration of the said assault being in violation of Ark. Stats. Ann. 43-2336.
The facts appear as follows: In the early morning hours of February 2, 1975, one Norman Hall, a security guard at the Diamondhead Resort in Garland County, discovered that the “Pro Shop” at the resort had been burglarized and a quantity of merchandise had been removed therefrom. A golf cart was also missing and the golf cart was located near the premises adjacent to Highway 290. The canvas top of the golf cart had been removed and placed on the ground near the cart and the stolen merchandise was placed on top of the canvas top.
Mr. Hall and Richard James, in charge of golf course maintenance and construction, secreted themselves where they could watch the merchandise and around 6:30 A.M. an automobile stopped near the merchandise and two men got out of the automobile. The automobile traveled a short distance where it turned around and stopped again at the same location where it had first stopped. The two men went to the golf cart cover and started back toward the automobile carrying the canvas cover with the merchandise thereon between then. Mr. Hall shouted to the two men to halt and fired a pistol shot over their heads. The appellant Lisenby stopped and fell forward to the ground and his companion ran a distance of about 360 feet where he entered the waiting automobile. Mr. Hall then approached Lisenby and ordered him to get up from the ground, which Lisenby did, and at this point three shots were fired from the direction of the automobile. The bullets struck the ground near where James, Hall and Lisenby stood and Mr. Hall placed Lisenby between himself and the direction the shots were coming from.
A crime of assault with intent to kill and the penalty provided therefor are set out in Ark. Stat. Ann. § 41-606 (Repl. 1964) as follows:
Whoever shall feloniously, wilfully and with malice aforethought, assault any person with intent to murder or kill, or shall administer or attempt to give any poison or potion with intent to kill or murder, and their counselors, aiders and abettors, shall, on conviction thereof, be imprisoned in the penitentiary not less than one [1] nor more than twenty-one [21] years.
Thus, it is seen that “feloniously, wilfully and with malice aforethought” are necessary elements of an assault with intent to murder or kill, and Lisenby was charged in the language of this statute. To sustain an indictment for an assault with intent to murder, the evidence must be such as would warrant a conviction for murder if death had ensued from the assault. McCoy v. State,
The above comments are especially important in the light of additional statute, Ark. Stat. Ann. § 41-2507 (Repl. 1964), which provides as follows:
If any person shall shoot at any person, with the intent to kill or wound, although he may miss or fail to hit the person aimed at, he shall be deemed guilty of an attempt to kill or maim, and on conviction shall be fined not exceeding three thousand dollars [$3,000], and imprisoned not exceeding seven [7] years.
In Lacefield v. State, supra, the distinction as to intent becomes important as between the two statutes. In Lacefield we said:
The proposition is incontrovertible that to sustain an indictment for an assault with intent to murder, the evidence must be such as to warrant a conviction for murder had death ensued from the assault.
This court has said that in order to convict for assault with intent to kill, the state must prove without a reasonable doubt that an accused committed an assault and that it was with intent to murder. Allen v. State,
In 23 C.J.S. § 786 (2) is found the following:
In order to be an accomplice, one must in some way be connected with the crime charged against accused. Thus, it is not sufficient that he was connected with the accused in commission of other offenses.
See State v. Walters,
There is considerable difference in the case at bar and such cases as Bosnick v. State,
[T]he jury could have attributed to the elder Bosnick a full share of responsibility for what took place inside the Gatteys store, even though the original plan did not contemplate a homicide. Henry v. State,151 Ark. 620 ,237 S.W. 454 (1922). But the jury was not required to do so. By the decided weight of authority, and by what we regard as the better rule, the jury may assign degrees of guilt among the conspirators in accordance with their respective culpability.
In the case at bar the evidence is clear that Lisenby was associated with Norton and another individual in the theft of the merchandise from the Pro Shop, but Lisenby was apprehended in the theft of the merchandise. He offered no resistance to his arrest and was under the observation and complete control of the arresting officers when the shots were fired toward him and the officers. All three participants in the attempted theft of the merchandise abandoned the merchandise when the officers appeared, Lisenby surrendered and the other two ran away. After Lisenby was completely in custody offering no resistance whatever, one of his two former companions in fleeing from the scene fired three shots in the direction of Lisenby and the officers, and that was the sole basis for the charge against Lisenby of assault with intent to murder or kill.
As already pointed out, to sustain a conviction for assault with intent to kill the evidence must be such to have sustained a conviction for murder had the homicide occurred. In Jones v. State,
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 have thrown an ax at Carter and have injured him with it in that manner. But the proof does not 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.
In the case styled Slim and Shorty v. State,
There was testimony tending to show that when the officers approached the appellants the driver ran the motor car up within a few feet of them and the officers jumped out with their guns presented towards the appellants before anything was said by the officers. A majority of the court is of the opinion that the testimony is not legally sufficient to sustain a conviction of appellant Shorty for the crime of assault with intent to kill, and that the court erred in not granting his motion for a new trial as to this offense.
In the Kentucky case of Warren v. Commonwealth,
Perry certainly started out with the mass movement of the striking miners. But it is clear from his undenied testimony that when violence developed, he not only refused to participate in the intimidation of Smith, but sought to prevent Warren from harming him. The familiar definition of an accomplice is one who participates in the commission of a crime, whether as a principal aider and abettor or accessory before the fact. The usual test is whether or not the witness could be convicted of the crime with which the accused is charged. Soloman v. Commonwealth,208 Ky. 184 ,270 S.W. 780 . Mountjoy v. Commonwealth,262 Ky. 426 ,90 S.W. 2d 362 . Mere association with the accused or mere presence at the time of the commission of the offense does not make one an accomplice. Head v. Commonwealth, Ky.,310 S.W. 2d 285 .
In the Oregon case of State v. Walters,
When the officers met the soldiers at the corner, Thorpe said: “Boys, just a minute; I want to see you.” Tillman “stopped right there,” but Walters “walked right on — stepped off the curb.” Palmer gave his attention to Walters, and Thorpe gave his attention to Tillman. Thorpe ordered Tillman to take his hands out of his pockets, and Tillman “had just started to pull his hands out of his pockets when Walters shot Palmer.” Thorpe immediately took his “gun off of” Tillman and shot at Walters, and it is probable that this was the shot which wounded Walters in the shoulder.
Walters proceeded about 14 feet after he and Tillman were accosted by Thorpe, and Walters was only 5 or 6 feet from Palmer when he shot Palmer.
Tillman testified for the state at Walters’ trial and testified as to the robberies prior to the homicide. It appears that the statutes of Oregon contain a subdivision in § 868 “that the testimony of an accomplice ought to be viewed with distrust,” and the appellant assigned error in the trial court’s failure to give an instruction to that effect. In disposing of this contention the Supreme Court of Oregon said:
Tillman was an accomplice in the commission of the three robberies; but the record does not disclose a word of evidence having the slightest tendency to show that he participated in or was connected with the homicide. Tillman was not an accomplice in the killing of Palmer, and therefore the trial judge properly omitted to instruct the jury about viewing the testimony of an accomplice with distrust.
We conclude that the same situation exists in the case at bar. There is no evidence whatever, either circumstantial or otherwise, that Lisenby entertained any malice aforethought, or any intent to murder, or kill anyone, and there is no evidence that he counseled, aided or abetted in firing the shots toward him and the officers. There is not even any evidence that Lisenby participated in the burglary. It is true he was participating in retrieving the stolen merchandise when accosted by the officers, but he had submitted to arrest and his former companions had made good their escape when the shots were fired. Whether the shots were fired at Lisenby, the two officers, or at all three, is not in evidence. It would require the highest degree of speculation to say they were fired at the officers to effect Lisenby’s release, or fired at Lisenby to silence him. It would also be pure conjecture and speculation to say the shots were fired as a probable and natural consequence of burglary under the evidence of record in this case.
The judgment is reversed and the cause dismissed.
Concurrence in Part
concurring in part, dissenting in part. I agree with the Court that this case should be reversed, but I would not reverse and dismiss; rather, I would remand for another trial.
It is my view that the Court committed error in giving its instruction No. 5. That instruction reads as follows:
When persons combine to do an unlawful thing, if the act of one, proceeding according to common plan, terminates in a criminal result, though not the particular result meant, all are liable.
If the defendants, or either of them, drew a weapon on Norman Hall and Richard James, their victims, with the common intent to effect an unlawful theft of property belonging to the Diamondhead Pro Shop or to prevent apprehension by the victims while engaging in the commission of an unlawful theft or in furtherance of such criminal act, and, by reason of such conduct on their part, such weapon was fired at the victims, or either of them, with the present capability to kill them, then each of the defendants, being present, aiding and abetting the acts and conduct aforesaid, would be guilty of an unlawful assault and, if such acts were done with malice, then the defendants would be guilty of assault with intent to kill. Malice shall be implied when no considerable provocation appears or when all the facts and circumstances manifest an abandoned or wicked disposition. Intent to kill may be inferred from facts and circumstances tending to reveal the state of mind of the defendants. It is not necessary for the state to prove that defendants weighed in their minds the consequences of a course of conduct before they acted.
In other words, a man may be guilty of a wrong which he did not specifically intend if it came naturally, or even accidentally, from some other specific or general evil purpose.
This instruction, in my view, told the jury that if they found that either Norton or Lisenby fired a weapon at the officers under the circumstances set out in the majority opinion, then both were guilty of an unlawful assault, and if the firing was done with malice, then both would be guilty of assault with intent to kill. It was undisputed that the other party who had been with Lisenby had fired a weapon in the direction of the officers.
The instruction was specifically objected to, it being appellant’s contention that he was entitled to have the jury pass upon the question of whether his participation with Norton had terminated at the time of his surrender to the officers, and that the Court’s instruction did not afford the jury this opportunity. I agree. It is true that counsel did not offer a written instruction, but to have done so would have been futile since the Court in announcing the instructions that it intended to give stated:
Now, gentlemen, you may make your objections to the Court’s instructions into the record. And you may also make your objections because I am not giving whatever instructions you think should be given in place of the Court’s instructions. I have taken the liberty of studying this thing fairly well.
I would reverse, but remand for another trial.
John A. Fogleman, Justice, dissenting. I do not agree that there was no substantial evidence to support the jury verdict finding appellant Lisenby guilty of assault with intent to kill. The “pro shop” at Diamondhead was burglarized. The burglars Norton, Lisenby and an unidentified person were in the process of transporting the loot when surprised by Hall, the chief of security at Diamondhead, and his companion, Richard James. Lisenby did not voluntarily surrender. He dropped the canvas on which the stolen goods were being carried and fell to the ground when a pistol shot was fired over his head by the security guard. His companion ducked behind a bank, fled, and was picked up by Norton, who was driving the car from which Lisenby and this companion had alighted and which, obviously, was to be used by the three to haul away the loot. The first shots fired from the direction of the automobile rang out about the time Lisenby arose on Hall’s command to do so. The bullet struck a bank right beside Hall, who raised up and fired back. Hall commanded, “Everybody get down,” after the driver had gotten out of the automobile and fired another shot. After Hall returned the fire he saw someone, apparently the unnamed companion, running toward the car. After a third shot was fired from the direction of the automobile, the driver and this other person got into the car and left.
James testified that he had hold of Lisenby when the firing started, “like my arm around his throat or something like that” and that he was behind Lisenby, so that Lisenby was facing in the direction of the gunfire. He said he, Lisenby and Hall all were seeking to get up a bank and over a fence seeking cover, but that he held on to Lisenby all the while. James said that he pushed Lisenby to the ground during the firing. Some of the shots struck near James and Lisenby. Lisenby was not armed when arrested. He offered no “actual resistance” to Hall and James. He was in the custody of Hall and James throughout the shooting. Hall said he cooperated.
These facts are stated in the light most favorable to the state, as we are required to view them, but they are not disputed or in substantial conflict. It is obvious that Norton, Lisenby and their companion were apprehended while their crimé of burglary and larceny was in progress. Asportation of the stolen property was an integral part of the crimes. The majority’s statement that there is no evidence that Lisenby participated in the burglary is unwarranted. His possession of the stolen property is itself sufficient evidence to have sustained Lisenby’s conviction of that offense, in the absence of an explanation satisfactory to the jury. Gatewood v. State,
There was never a time when Lisenby voluntarily disassociated himself from the criminal activities of his co-conspirators and accomplices or communicated any withdrawal from the criminal enterprise (if indeed he did withdraw) to his confederates, or either of them. A reasonable inference that the jury might draw from the testimony is that Norton and the third man, who could have made good their escape without returning to a place on the road from which they could shoot at Hall and James, were endeavoring to recapture the loot and free Lisenby, who was unarmed. The original criminal venture was not terminated before Norton and the third person fled, or at least the jury had the right to so find, and Lisenby was fully responsible for all their acts.
Our law as to the responsibility of one conspirator for the acts of his co-conspirator is well settled. In Caton v. State,
A conspiracy is a combination between two or more persons to do something unlawful, and it may be established by circumstantial evidence as well as by direct evidence. *** When the combination of persons to do an unlawful act is shown, each of them is liable for the act of one proceeding according to the common plan, if it terminates in a criminal result. ***
In Johnson v. State,
*** Each conspirator or participant is responsible for everything done which followed directly and immediately in the execution of the common purpose as one of its probable and natural consequences. Bosnick v. State,248 Ark. 846 ,454 S.W. 2d 311 . The burglary and larceny, if committed, or the scheme to commit these crimes, if it existed, did not terminate until the perpetrators had left the scene. Clark v. State,169 Ark. 717 ,276 S.W. 849 . The acts of the participants in an effort to escape are a part of the continuous scheme or conspiracy and the act of one is the act of all. Wilson v. State [188 Ark. 846 ,68 S.W. 2d 100 ]; Clark v. State, supra; Maxwell v. State,188 Ark. 111 ,64 S.W. 2d 79 . In the cases cited in Wilson from other jurisdictions, it is clearly recognized that the law holds a participant in a crime responsible for the acts of another acting in concert with him or in the furtherance of a common object, design or purpose. ***
It is also clear that under our law the acts of one co-conspirator in furtherance of the common design may be shown in evidence against his associates. Local Union No. 858 v. Jiannas,
We have spoken clearly on the matter of accomplice liability
The law upon this subject is, that “a man may be guilty of a wrong which he did not specifically intend, if it came naturally or even accidentally from some other specific, or a general, evil purpose. When, therefore, persons combine to do an unlawful thing, if the act of one, proceeding according to the common plan, terminate in a criminal result, though not the particular result meant, all are liable.” Bishop Cr. Law, Sec. 636, and authorities there cited.
In Spear v. State,
*** Court instructs the jury that if you find from the evidence beyond a reasonable doubt that the defendant, Percy Spear, in Crawford County, Arkansas, and within three years from the finding of this indictment, entered into a conspiracy with any other person or persons to rob the Reynolds Drug Store in the city of Van Burén, Arkansas, and that the defendant with such other person or persons with common intent to rob same did rob said Reynolds Drug Store with a common purpose and you further find from the testimony beyond a reasonable doubt that by reason of such common conduct on their part and while carrying out such common purpose and intent, an altercation arose on account of the carrying out of such common conduct in which Elmore Brown was shot and killed by either one of the persons so engaged, the defendant, Percy Spear, being present aiding and abetting in the acts and conduct aforesaid of his companion or companions, then each would be guilty of an unlawful homicide in some degree, and if the fatal injury was inflicted upon Elmore Brown with malice aforethought but without premeditation or deliberation, then the defendant would be guilty of murder in the second degree, and if the fatal injury was inflicted on Elmore Brown with malice aforethought and after premeditation and deliberation by either one of the three, then the defendant Percy Spear would be guilty of murder in the first degree, and if the fatal injury was inflicted without malice and without deliberation, but upon a sudden heat of passion caused by provocation apparently sufficient to make the passion irresistible, then the defendant would be guilty of manslaughter.
The instruction was challenged on the ground that felony-murder had not been charged. It was held to be correct for the following reason:
*** The general rule is that all who join in a common design to commit an unlawful act, the natural and probable consequence of which involves the contingency of taking life, are responsible for a homicide committed by one of them while acting in pursuance or furtherance of the common design, although the homicide might not have been in contemplation of the parties when they conspired to commit the unlawful act, and although the actual perpetrator is not identified.
The court relied upon Carr v. State, supra, and elaborated upon the authority supporting the Carr rule. It was an Ohio case, Stephens v. State,
The holding in Boone v. State,
The general rule is that, where persons combine to do an unlawful thing, if the act of one, proceeding according to the common plan, terminated in a criminal result, though not the particular result meant, all are liable.***
It should be noted that a specific intent to kill was a necessary element of first degree murder with malice aforethought and after premeditation and deliberation, but not of felony-murder. Tippett v. State,
More importantly we have actually applied the principle of accomplice liability to a charge of assault with intent to kill. In Lacy v. State,
*** If appellant and Sexton entered into a conspiracy to go to the Barnes home on an unlawful mission, which is conceded, and the act of one of them, proceeding according to the common plan, terminated in a criminal result, both would be liable, although not the particular result intended. Boone v. State,176 Ark. 1003 ,5 S.W. 2d 322 . Therefore the above instruction did not correctly state the law in requiring the jury to find that they went to the Barnes home for the purpose of doing Davidson bodily harm or injuring him.
There was certainly sufficient evidence that the crime in which all three of the persons involved participated had not been terminated at the time the shooting took place. There is a unity of criminal action between the execution or attempted execution of a crime and the flight from the scene. Commonwealth v. Kelly,
On the question of termination of a crime, the Pennsylvania Supreme Court, in Commonwealth v. Kelly, supra, has aptly said:
It is a legitimate assumption that one who. plans a robbery or burglary and by an overt act attempts to carry it out has also planned to escape from the scene of his crime. He must intend to make his felonious venture successful and it cannot be successful until he has made his escape. Even though, as here, the felon was frightened away before obtaining any plunder, his escape remains as part of his felonious design. His commission or attempted commission of the felony and his flight are but integrated parts of a single campaign in his war against society. The same malice that motivated his commission or attempted commission of the felony attended him in his flight. ***
Even if it could be said that the crimes of burglary and larceny were both complete in the sense that all three of the persons who participated could have been prosecuted and convicted of both crimes at the time Lisenby was arrested, the criminal enterprise was not terminated so that each conspirator was no longer responsible for the acts of his confederates. Commonwealth v. Dellelo,
In treating the problem of determining when the underlying felony has been terminated, in applying the felony-murder doctrine, the courts have generally spoken in terms of the res gestae of the crime. Payne v. State, supra; State v. Turco, supra. The res gestae of the crime begins when an indictable attempt is reached and ends where the chain of events between the attempted crime or completed felony is broken with that question usually being a fact determination for the jury. Payne v. State, supra. There is no distinction to be made between a case where the charge is assault with intent to kill and a felony-murder case insofar as questions pertaining to termination of the crime and the withdrawal of a participant are concerned. The only room for distinction, other than death of the victim, is the requirement of specific intent on the part of someone when the charge is assault with intent to kill.
There was ample evidence that the shooting by appellant’s accomplices was an integral part, the res gestae and a continuation of the crime of burglary and larceny.
A principal in the crime is responsible for all the natural or probable consequences that flow from the common purpose. Johnson v. State,
Co-conspirators in a dangerous criminal enterprise, such as larceny, should expect that in the event they are detected in the theft, violence endangering life or limb may ensue and, in contemplation of law, whatever is done by one, is done by all and all are equally responsible. Hamilton v. People,
The question whether one of the participants in a crime has withdrawn from the criminal enterprise so that he is no longer responsible for the acts of other participants is usually a question of fact. See Commonwealth v. Dellelo, supra. There can be no effective withdrawal by one of multiple participants in a crime unless it is shown, not only that he determined that he would go no further with the criminal enterprise, but that he also communicated that decision to his confederates in sufficient time that they, too., might abandon the undertaking. Commonwealth v. Dellelo, supra; Commonwealth v. Green,
The mere fact that a participant in a crime has been arrested does not relieve him of responsibility for the acts of others associated with him in the criminal enterprise. See People v. Walsh,
*** Beaumaster claims that he withdrew from any conspiracy by submitting to a search and by his general cooperation with the police when stopped. A defendant ’s failure to continue previously active participation in a conspiracy is not enough to constitute withdrawal; there must be an affirmative and bona fide rejection or repudiation of the conspiracy communicated to the co-conspirator. *** A failure to complete a crime because of threatened arrest or the appearance of the police is not such a free and voluntary act as to constitute an abandonment. *** Each member of the conspiracy is liable as such for the acts of any of the others in carrying out the common purpose, i.e., all acts within the reasonable and probable consequences of the common unlawful design. Liability extends to acts unintended or even actually forbidden by a co-conspirator. *** Defendant did not communicate any withdrawal to his partner in crime. He was apprehended by the police, and his “abandonment” (if it can be so classed) was not voluntary. He, in fact, handed the gun to Chapman, and the probable consequences of this act are chargeable to Beaumaster. We cannot find that there was insufficient evidence to sustain Beaumaster’s conviction of assault with intent to commit murder (omitting citations only).
The fact that an accomplice actually fired the shot does not make the evidence insufficient to support an assault with intent to kill conviction of an accused who participated in the underlying crime. Johnson v. State,
Upon the rationale of rules governing accomplice liability, a participant may be found guilty of an assault with intent to kill when his armed accomplice seeks to take the life of a victim of the crime or an officer when the crime is discovered or in an attempt to escape, even though the assault was not a part of the original plan and there is no evidence that the participant charged had the intent to kill the officer or victim. McMahon v. People, supra.
It seems to me that the majority has erroneously concluded that the original crimes of burglary and grand larceny had come to an end. Otherwise, they could not distinguish Bosnick v. State,
Cases cited in the majority opinion afford no basis for distinction. Neither accomplice liability nor res gestae arose in Jones v. State,
I cannot agree with the Chief Justice that the judgment should be reversed because of the court’s instruction No. 5.
Appellant admits that the first paragraph of the instruction given is correct. He then argues that the words “their victim” in the first sentence of the second paragraph constituted a prohibited comment on the evidence. If this was so, it could easily have been corrected if the court’s attention had been called to the matter. The question cannot be considered for the first time on appeal. Appellant also argues here that the words, “then each of the defendants, being present, aiding and abetting the acts and conduct aforesaid, would be guilty of an unlawful assault” constituted a comment on the evidence. I simply do not see how this can be so considered. Appellant theorizes that because Norton was a principal, not an accessory, and the court told the jury by this language that Lisenby was an accessory, it was a comment on the evidence. This the instruction does not do and it is difficult for me to see how it can possibly be so read. Nowhere did the court tell the jury that Lisenby was present, aiding and abetting the acts and conduct of Norton. Here again, this objection is made for the first time on appeal. No party was in anywise prevented from offering any objection he wanted to make to any instruction. The trial judge specifically afforded an opportunity to the parties to make objections to the instructions.
The only other argument made here goes to an objection that was made, i.e., that Lisenby personally must have had the specific intent to kill at the time the assault was made. In my view, this is a fallacious argument as set out in the first part of this opinion and the instruction was not erroneous in that respect. The only remaining objection made in the trial court, aside from a general objection which we do not consider, was to the omission of a requirement that the jury find a specific intent to kill and to the denial of a verbal request that the jury be instructed,
.....that when two persons are proceeding according to a common plan, that if they detour or terminate, if they detour from their original plan and a specific intent crime is committed by one of the other parties, the second party must have some knowledge of that intent or knowledge that the other defendant is capable, has the capacity to develop that intent.
The ground upon which the Chief Justice bases his finding of error was not argued by the appellant on appeal. Objections not argued on appeal are waived. Roach v. State,
I should note that the court’s instructions did include the following:
*** Before the defendants can be convicted of assault with intent to kill, you must find that the defendants committed a willful assault with malice aforethought upon another with the specific intent to murder or kill that person. Malice and intent to kill may be inferred from acts and circumstances of the assault such as the use of a deadly weapon in a manner indicating an intention to kill or an act of violence which ordinarily would be calculated to produce death. You may properly consider the character of the weapon employed, the way it was used, the manner of the assault, the violence attendant thereon, and all other facts and circumstances tending to reveal the state of mind of the defendants.
In considering these instructions and in deliberating and voting on your findings, you will bear in mind that these defendants are charged here as individuals and you must determine the guilt or innocence of each separately. Accordingly, you must make separate findings as to each defendant.
In this connection, you are also charged that it is not necessary that you reach the same verdict for each defendant. You may find one or more innocent while at the same time finding the other guilty, your verdict being controlled only by the evidence and these instructions.
Thus, even assuming that appellant’s request is a correct statement of law, the jury, in the light of the instructions given was not totally deprived of guidance on the fact issues presented. In any event, this was not such an error as would justify our treating the case, on appellate review, as we do those cases wherein the death penalty or life imprisonment is the punishment imposed. In order to reverse this case for the failure of the circuit judge to instruct the jury as appellant requested, we would have to do so.
I would add that the fact that appellant’s requested instruction was not made in writing is of no significance whatever. The request was made and denied. There was still a waiver here.
I recognize that other points for reversal have been asserted but time and space limitations make it inadvisable that I treat them. Suffice it to say that I find no reversible error and would affirm the judgment.
Notes
Subsequently, Barney Norton was convicted of assault with intent to kill, and his conviction affirmed by this Court on September 20, 1976. See Norton v. State,
The sort of liability the state asserts against Lisenby, i.e., responsibility as an accomplice for the acts of another participant in a criminal design, has been referred to by some writers as “accomplice liability.”