Howard v. State , 137 Ark. 111 ( 1919 )

HUMPHREYS, J.

Appellant was indicted, .tried and convicted in the Desha Circuit Court for the crime of assault with intent to kill one T. K. Dickinson, and his punishment was fixed at one year in the State penitentiary. Prom the judgment of conviction, an appeal has been duly prosecuted to this court.

The substance of the evidence on behalf of the State was as follows: Charles Nutter was overseer on a farm for Dr. Bell, on which Mr. Kirkes was getting out some timber on contract under the supervision of Charles Nutter. Appellant was employed by Nutter on the farm at $1.50 per day. He quit the farm work to take a logging job at $3.00 per day under Kirkes. Nutter objected. This incensed appellant and caused him to threaten to brain Nutter with apeavey handle. Nutter had gone to the logging place in a car with Kirkes, and, when threatened by appellant, started toward the car nearby and told Kirkes to take him home. Appellant then remarked: “I guess you are going to get your gun. I am going to get mine and we will see which one gets it first.” Nutter, who was himself a deputy sheriff, called up the sheriff about the matter, procured a warrant from a justice of the peace for appellant, placed it in the hands of Deputy Sheriff T. K. Dickinson and accompanied him to the logging place to assist in arresting appellant. The two were fading, and, when they reached a point seventy or seventy-five yards from where appellant was working on a raft, appellant drew his pistol. They dismounted, took advantage' of. some bushes and approached within sixty feet of appellant when he shot at Dickinson, who was about ten feet in advance of Nutter. Dickinson took refuge behind a tree, and, when he looked out, appellant again shot at him. Several shots were then exchanged, but none took effect.

The substance of appellant’s testimony was that appellant made no threats or demonstrations toward Nutter before the warrant was procured; that, on the contrary, Nutter tried to get a club to hit him; that, later in the day, two shots were fired at him while working on a raft; that he did not know who fired the shots; that he then discovered Mr. Nutter pointing a pistol at him and immediately fired two shots at Mr. Nutter; that he never shot at Mr. Dickinson at all.

The assignments of error were embodied in a motion for new trial, which was overruled, and which, omitting the caption, is as follows:

“1st. Because the court erred in permitting plaintiff’s witness, Charles Nutter, to answer the following question on direct examination over the defendant’s objection: ‘Now, did you call up Mr. Lacey here about that matter f

“2nd. Because the court erred in refusing to permit plaintiff’s witness, Charles Nutter, to answer the following question propounded on cross-examination, over the objection of the defendant: ‘Have you got a commission showing you are an authorized deputy sheriff?’

“3rd. . Because the court erred in refusing to give to the jury defendant’s requested written instructions numbered, respectively, as 1, 2, 3 and 4, and each of them.

“4th. Because the verdict of the jury is contrary to the law.

“5th. Because the verdict of the jury is contrary to the evidence.

“6th. Because the verdict of the jury is contrary to the law and the evidence.

“7th. Because the court erred in giving to the jury instructions numbered 1, 2, 3, 4, 5 and 6, and each of them. ’ ’

1. The court did not err in permitting Nutter to testify that he called up the sheriff in reference to the difficulty between him and appellant. No attempt was made to detail the conversation between Nutter and the sheriff; hence, not objectionable op the ground that hearsay evidence by the sheriff was admitted. The purpose of the question, as revealed by questions and answers immediately following this question, was to show.that Nutter obtained the warrant for appellant’s arrest on the advice of the sheriff and to account for Dickinson’s appearance where the shooting occurred. For these purposes, the question and answer were admissible.

2. Error was not committed in refusing to permit Charles Nutter, on cross-examination, to answer the question: “Have you got a commission showing you are an authorized deputy sheriff?” This question, almost word for word, had been asked and fully answered on direct examination. It is within the sound discretion of the trial court to allow or deny the repetition, on cross-examination, of questions which have been fully answered. Jones’ Commentaries on Evidence, Yol. 5, page 192, and authorities cited in foot note 68 on same, page. We find no abuse of the court’s discretion in refusing the aforesaid question and answer.

3. (a) Appellant requested the court to instruct the jury to find him not guilty. This instruction was improper unless the State failed to prove some material allegation in the complaint by some legal, substantial evidence. It seems that every material allegation in the complaint was fully covered by legal and substantial evidence adduced on behalf of the State. The court properly refused the instruction.

(b) Appellant requested and the court refused to give the following instruction: “The court instructs the jury that any citizen may bear arms for his defense against unreasonable and unlawful attack. ”

Section 1609 of Kirby’s Digest provides that it shall be a misdemeanor for any person to carry a pistol as a weapon. There are exceptions to the statute, but the statute does not provide for the exception contended for by the requested instruction. Therefore, the court did not err in refusing to give the instruction.

(c) Appellant requested and the court refused to give the following instruction: “You are told that a peace officer has no right to make an arrest where the offense claimed is a misdemeanor unless such officer has a warrant unless the arrest is attempted for breach of the peace committed in the presence of the officer.”

The undisputed evidence showed that T. K. Dickinson had a warrant for the arrest of appellant; so the requested instruction was not responsive to the evidence. The instruction, however, did not properly declare the law because it is permissible for an officer to arrest one without a warrant for any public offense committed in his presence. This right on the part of an officer is not confined to a breach of the peace committed in his presence. The court did not err in refusing to give the instruction as requested.

(d) . The fourth instruction, requested by appellant and refused by the court, was fully covered by the oral instruction theretofore given by the court. It was, therefore, not error to refuse the requested instruction.

4, 5 and 6. The fourth, fifth and sixth assignments of error question the sufficiency of the evidence to support the verdict under the law. There was legal, substantial evidence in the record to the effect that appellant drew a pistol from his jumper and fired upon T. K. Dickinson, a deputy sheriff, who had a warrant for him, before Dickinson, by word or act, attempted to arrest him. On appeal, this court does not pass upon the weight of the evidence. The weight of the evidence is a question to be determined by the jury. If there is any substantial, legal evidence to support the verdict, it will not be set aside on appeal. We think there was sufficient substantial, legal evidence in the record to support the verdict.

7. Appellant’s seventh assignment of error assails each of the instructions given by the court, numbered 1, 2, 3, 4, 5 and 6. The court did not give any instruction numbered 6. Written instructions numbered 1, 2, 3, 4 and 5, given by the court, seem to be a clear and concise declaration of law applicable to the facts in the record. We are unable to find any defect in them, and no special defect has been suggested by appellant.

This court can not review the oral instruction given by the court which bears no number, because the record does not show that any objection was made or exception saved by appellant to it.

The judgment is affirmed.