177 S.W.2d 933 | Ark. | 1944
Appellant was found guilty by a jury of the crime of maiming and from judgment of the lower court, sentencing him to imprisonment in the penitentiary for four years, he prosecutes this appeal.
The evidence disclosed that appellant, a taxicab driver in Fort Smith, was engaged by Willie Bryant and Frank Crockett, two soldiers at Camp Chaffee, to drive them with two young ladies to the home of the young ladies. The soldiers took the young ladies to their residence, then re-embarked in the cab and were driven back to the business district. A dispute as to the proper fare for the trip arose between the appellant and his two passengers. To settle the dispute, it was agreed that appellant would take the soldiers, who had been drinking, to the cab station, where inquiry as to the proper amount of fare was to be made. At the cab station the parties continued the quarrel which culminated when appellant, who had left his cab, walked back to it, reached in the seat, took therefrom a blackjack, or, as claimed by appellant, a piece of rubber hose, and struck Bryant on the *695 head with this instrument. The blow landed in the region of Bryant's left eye, which was badly injured. As a result of this blow it was necessary to remove the eye.
There is a dispute in the testimony as to what occurred immediately before Bryant received the injury. According to Crockett, Bryant had not made any attack on appellant, but was merely arguing that the $2 cab fare demanded by appellant was too much, and "Nothing passed between them at all — he (appellant) just went around and got the weapon and came around and hit the boy without any provocation." Bryant's version of the difficulty was practically the same as Crockett's. He denied that he struck or struck at appellant before or after he received the blow. He testified that he was unarmed, and did not realize that appellant was about to strike him until appellant drew back; that the instrument with which he was injured was a blackjack "plaited like leather."
Appellant testified that the soldiers were drunk and that Bryant, whose weight was over 200 pounds, as compared to appellant's weight of 154, struck him first, and that appellant, after getting loose from Bryant, ran back to his cab, found Bryant standing there, reached in the cab, obtained the piece of rubber hose and struck him with it. Appellant testified: "Q. Why didn't you run away from him? A. It is not right; I had a right to protect myself. Q. Why didn't you run from him? A. I didn't think it was right to run from him. Q. Did he hit you while you were bent over getting this thing out of the cab? A. No, sir."
Appellant's testimony as to the difficulty was in some respects corroborated by that of Carter, another cab driver, who testified: "This big soldier, he was pretty drunk, and he struck Jimmy, and that is when Jimmy reached in and got the billy club." But, when shown the rubber hose, identified by appellant as the weapon used by him, and asked if it was the instrument used, Carter said, "I don't believe it was." *696
Many grounds for reversal of the judgment are urged. We will discuss those chiefly relied upon by appellant.
We have frequently held that the matter of granting a request for a postponement or continuance was one calling for the exercise of sound discretion by the trial court and that this court will not interfere in the exercise of that discretion in the absence of a showing that in denying the postponement or continuance the lower court acted arbitrarily and to the prejudice of appellant. Gallaher v. State,
Mr. Justice HART, speaking for the court, in the case of Atkinson v. State,
In the case of Lowmack v. State,
Appellant, if he desired an instruction of this kind, should have submitted to the court an instruction as to aggravated assault and assault and battery setting forth a proper statement of the law in that particular, and, not having done this, he cannot complain of the court's failure to give such instruction.
Before a new trial may be granted on the ground of newly discovered testimony it must be shown that diligence to discover such testimony was exercised by the party seeking the new trial. Ward v. State,
Other assignments of error, not necessary in our opinion to review in detail, are made by appellant. We have carefully considered all these assignments and do not find any of them well founded.
No error appearing, the judgment of the lower court is affirmed. *699