Davis v. State , 115 Ark. 566 ( 1914 )

Wood, J.,

(after stating the facts). (1) The court correctly declared the law in the third prayer for instruction at the instance of the State, telling the jury that the proof should show a specific intent to take life, and that in determining whether or not such intent existed, the jury should “take into consideration the manner of the assault, the nature of the weapon used, the manner in which it was used, her statements, if any, and all other facts and circumstances tending to show the state of her mind.” But, in connection with this instruction, the court should have also granted appellant’s prayer No. 4. That prayer was a correct declaration of law, and, under the evidence,- appellant was entitled to it.

Section 2385 of Kirby’s Digest provides as follows: “A confession of a defendant, unless made in open court, will not warrant a conviction unless accompanied with other proof that such offense was committed.”

(2) After telling the jury, at the instance of the State, that they should take into consideration the statements of appellant in determining whether or not there existed in her mind a specific intent to take life at the time of the shooting, it was necessary to tell .the jury that her confession, not made in open court, would not warrant a conviction unless there was other proof tending to show that the offense had been committed. An instruction to this effect was essential, for otherwise the jury might have concluded from the testimony, under instruction No. 3, given on behalf of the State, that they were warranted in finding from appellant’s statements or confessions alone that she had the specific intent to take the life of Davis at the time of the shooting.

(3) Now, one of the essential ingredients of the offense of assault with intent to kill is- the .specific intent to take life. -The offense is not complete until such intent is proved. See Scott v. State, 49 Ark. 156; Chrisman v. State, 54 Ark. 283; Beavers v. State, 54 Ark. 336.

(4) This essential ingredient of the crime, under the plain language of the statute, can not be proved by the confession of the defendant not made in open court, unless there is also other proof of such specific intent. In other words, under our statute, if there be no proof of the specific intent to take life except the extra-judicial confession of such intent, then the offense of an assault with intent to kill is not estuiMMied, 'and if this were the only proof of such intent the accused would be entitled to an acquittal of that offense. But, under the instruction given at the instance of the State in this case, the jury would have been warranted in finding that such specific intent existed from appellant’s confession alone to that effect, without any other proof tending to show that such was her intent. This is not the law and the appellant was entitled to her prayer for instruction No. 4, to prevent the jury from being misled by the State’s prayer for instruction No. 3. These two instructions taken together would have properly declared the'lawiandobviated'anypossMeiprejudioeto the appellant.

To be sure, it could be plausibly argued that the appellant best knew what was going on in her own mind and what her intention was when she made the assault on Davis, and that her confession to the effect that it was her intention to kill him, even though extra-judicial, should be given great probative force; but still, under the statute, this of itself was not sufficient to prove that such was her intention. The refusal of the court to grant appellant’s prayer No. 4 was an error highly prejudicial to her, for in the absence of her confession it was an issue of fact as to whether or not there was evidence sufficient to show that the specific, intent to take the life of Davis existed in the mind of the appellant at the time she assaulted him. She testified, that such was not her intention, and the manner of the assault tended to corroborate her testimony. The jury could have found from this testimony that there was no specific intent on the part of appellant to take the life of Davis, and hence that the offense charged had not been proved, except alone by the statements or extra-judicial confessions of appellant, and, as we have already shown, this of itself was not sufficient.

(5) This is not a case where the intention to take life is presumed from the mere use of a deadly weapon. If the life of Davis had actually been taken by the assault, then an intent to kill from the use of the weapon would have been presumed, but such is not the case where the charge is only an assault with intent to kill. As was said in Lace-field v. State, 34 Ark. 275, quoted in Chrisman v. State, supra, “While it is true that a person is presumed to contemplate the ordinary and natural consequences of his acts, such presumption does not arise where the act fails of effect, or is attended by no consequences; and where such act is charged to have been done with a specific intent, such intent must be proved, and not presumed from the act.” See also, Beavers v. State, supra; Scott v. State, supra.

For the error in refusing to grant appellant’s prayer for instruction No. 4, the judgment is reversed and the cause remanded for a new trial, unless the Attorney General will within fifteen days elect to have the cause remanded with directions to fix the punishment and enter judgment against appellant for aggravated assault.

Smith, J. dissents.