Woolbright v. State , 124 Ark. 197 ( 1916 )

Kirby, J.,

(after stating the facts).- Appellant was indicted as a principal for assault with intent to kill and the testimony of the witness, Will Campbell, of the statement made by Wash Woolbright shortly before he assaulted Palmer with the club, that if he caught up with him he was going to cut his throat, made in the absence of appellant was competent to show the intent or disposition of mind of the said actor in the crime in making the assault.

The undisputed testimony shows that appellant was personally present when Palmer was brutally assaulted with the -clubs by his sons and although he did not get out of the wagon and engage in the difficulty, that he approved of it and encouraged the assailants and suggested after the old man had been knocked down twice that the blows were only “baby licks, that they should use their pistols.” He had stated before leaving town that he was going to beat h— out of Palmer as soon as he caught him out, and his son Leman testified that he suggested that the old man had a pistol before he and Sam Eogers got out of the wagon and went to where they were fighting. Hnder these circumstances, he was as guilty of the .offense as was the principal actor who wielded the club. Hunter v. State, 104 Ark. 246.

The proof was sufficient to show a concert of action between the parties and the threat made by Wash Wool-bright in the presence of Campbell, when his father, appellant, was not present, would have been admissible in anv event against him. Turner v. State, 121 Ark. 40, 180 S. W. 211

The court did not err in refusing to give appellant’s requested instruction, directing the jury that they must find beyond a reasonable doubt that he had in mind a specific intent to kill B. F. Palmer, before they could find him guilty. Instructions were given correctly defining the offenses of murder and assault with intent to kill and appellant was guilty of the offense if his son, Wash Woolbright, who wielded the club, did it with the intent required by law to constitute the offense as the jury found.

Appellant’s witnesses, Leman Woolbright and Sam Rogers, voluntarily stated without objection, that they went that night to Helena with Wash upon his suggestion, in order not to be arrested for the offense, and the court made no reference to their flight 'in its charge to the jury herein, and no error was committed in refusing appellant’s requested instruction relative thereto.

The instructions given by the court, correctly declared’ the law and the testimony is sufficient to sustain the verdict. We find no prejudicial error in the record and the judgment is affirmed.