110 Ark. 432 | Ark. | 1913
(after stating the facts). Appellant contends that the allegation that the cutting was done with a knife is descriptive of the offense, and should be proved as alleged, and he asked that the jury be told by his instruction numbered 8, which was refused by the court, that a conviction could not be had if the cutting was done with a razor instead of a knife. We think there is no substantial variance between the allegation and the proof and that the court did not err in refusing to give the requested instruction. Webster’s New International Dictionary gives the pictures of twenty-one instruments under the title of “knife,” and designates each of them as a knife, and gives the following definition of that word: “An instrument consisting (in its modern form) of a thin blade, usually of steel, and having a sharp edge for cutting fastened to a handle; a longitudinally edged instrument operated by pressure. Knives are of many different forms for different uses; as table-knife, drawing-knife, putty-knife, pen-knife, clasp-knife,” etc. And also “A weapon consisting of or resembling a knife, hence a sword or dagger.” It is a matter of common knowledge that, although razors are not designed as weapons, they are adapted to that use and are frequently used as such. A statute of this State makes it unlawful to carry a razor as a weapon. Kirby’s Digest, § 1609. ‘ ‘ Knife ” is a generic term of import sufficiently broad to include ‘ ‘ razor, ’ ’ although the term razor would not include other kinds of knives.
We think the court properly excluded the defendant’s plea of former acquittal of the charge of aggravated assault, but we think this action was proper because of the recitals shown in the transcript of the justice’s docket.
It has long been settled that neither a conviction, nor an acquittal will bar a subsequent prosecution, if the first trial is collusive, or not conducted in the manner required by law. . 12 Cyc. 262. In the case of Bradley v. State, 32 Ark. 722, it was decided (quoting syllabus): ‘ ‘ A conviction of assault and battery before a justice of the peace, on confession or information, of the offender, is no bar for an indictment for the same offense. ’ ’ Subsequent to that decision the legislature undertook to provide by the act of February 9, 1893, how misdemeanors might be submitted and disposed of by trials before justices of the peace. The provisions of that act appear as sections 2497, 2498, 2499, 2500, 2501 and 2502 of Kirby’s Digest. Section 2499 reads as follows:
“To ascertain the gravity of the offense, said justice of the peace shall subpoena the person or persons maltreated by said offender in the commission of the offense aforesaid and such other witnesses for the State and defense as will give a clear understanding of the circumstances of the case.”
The preceding sections provided for the entry of the plea of guilty, and the section quoted enabled the ' court to ascertain the gravity of the offense upon which the plea had been entered.
An inspection and study of the docket of the justice of the peace affirmatively shows there was no substantial compliance with the requirements of this act. It affirmatively appears that on the 18th of November, two men, C. W. Morris and Jim Warren, appeared before the justice and made affidavit against appellant accusing him of the crime of assault, and that on the same day a warrant was issued and placed in the hands of the constable, and the cause was immediately heard, and that the only evidence introduced at the justice’s trial was that of appellant. An examination of the transcript of the evidence in this case fails to show that either Morris or Warren were present at the time of the difficulty. At any rate, neither of them testified at the trial in the circuit court. Such trials do not meet the requirements of the law and can not be pleaded- in bar of genuine prosecutions which the accused does not control. Floyd v. State, 80 Ark. 94; State v. Caldwell, 70 Ark. 78; Kirby’s Digest, § 2499.
Moreover, it appears from the recitals of the justice’s judgment that appellant was found-guilty of the degree of assault for which he was tried and that degree was simple assault. It is true that the justice’s judgment recites that he finds appellant guilty of an aggravated assault, but the lowest punishment for that grade of assault is a fine of not less than fifty dollars and not to exceed one thousand dollars and some imprisonment in jail not to exceed one year. The fine imposed by the justice was only three dollars, which could not have been imposed for an aggravated assault, and we conclude therefore that the justice was imposing a fine for what he regarded as an aggravated simple assault. Appellant having been convicted before the justice upon the charge upon which he was tried, that of simple assault, a conviction for which is attended by the imposition of a fine only, he can not plead an acquittal for the offense of aggravated assault with the accompanying jeopardy, because he was not tried upon that charge.
Finding no error, on a consideration of the whole ease, the judgment of the court below is affirmed.