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his malice aforethought to kill and murder, then and there, no
considerable provocation appearing; against the peace and dignity
of the State of Arkansas. A. S. McKbnkok,

'^ ProsectUiiig Atiomeyj Fifth Circuit, ^^

The jury returned a verdict of guilty as charged in the indict-
ment, and assessed his punishment at three years imprisonment in
the penitentiary. He moved for a new trial, which was refused,
and he was sentenced in accordance with the verdict.

Upon the trial the State introduced L. M. McClnre as a witness,
who testified that the defendant was, on or about the first day of
December, 1878, in the town of Plummerville, in Conway county,
and that he became involved in a diflBculty with one Holloway.
The witness induced him to leave Holloway's presence and go with
him to witness's saloon. When they got to the saloon, the defend-
ant took a pistol from his pants' pocket, and, after cocking it, put
it into another pocket The witness dissuaded him from any fur-
ther diflBculty. He then left, and in a short time returned with
Holloway, and called for whisky. He was intoxicated, and the
witness tried to prevail upon him not to drink any more, but
finally, after exacting from him a promise that he would behave
himself, gave him a drink.
Vol. XXXVI— 2

Digitized by



I^acefield v. State.

In a short time after taking the drink, he staggered or fell against
the sash of a window and broke two panes of glass. The witness
demanded twenty-five cents from liim for the panes of glass he had
broken; when he declared, with an oath, he would pay no such
sum, and became very disorderly, using profane and abusive lan-
guage to the witness. The witness called Thomas Hearstings, a bar-
tender in the saloon, and he and Hearstings put the defendant out
of the saloon on a porch, and Hearstings then went back into Iho
saloon; the defendant holding on to the witness; the witness, to
get loose from him, seized him by the hair of his head, with both
hands, and chunied his head several times against the wall, and
then threw him down on the floor, and with his hands in his hair as
before, struck his head several times against the floor. The de-
fendant then let go the witness, and the witness dragged him by
the hair of his head off the porch to the ground, and left him and
went back into the saloon to a desk at the farther end. Very soon
afterward Hearstings told the witness to look out, the defendant
was going to shoot into the saloon, and immediately a shot was fired
from without, which grazed Hearstings's neck, and he fell on the
floor, exclaiming, **Iamshot" — the bullet lodging in a picture
frame on the wall ; and two or throe other shots, from the same
direction, were fired into the saloon in rapid succession, the bullets
lodging in the wall. The witness got a pistol and pursued the de-
fendant, who was moving rapidly away, and arrested him, and
taking his pistol from him, delivered him into the custody of the
constable. When arrested, his pistol had four empty chambers.

Thomas Hearstings testified for the State, and his testimony cor-
roborated McClure's, except that ho knew nothing of the taking
of the pistol from the defendant ; and Columbus Taylor, another
witness for the Stat^, testified to seeing the defendant fire the

The court charged the jury: That although the shots were find
ut some other person, if Thomas Hearstings had been killed, tht*
killing would have been murder, the same as though they Jiad been
fired at him directly, unless they were fired in necessary self-de-

The defendant excepted to this charge, and asked the following,
which the court refused : That the jury must, before they find the
defendant guilty, be satisfied, beyond a reasonable doubt, that he
intentionally made an assault upon Thomas Hearstings ; and that

Digitized by



Lacefield v. State.

proof of au assault upon another person, although Thomas Hearst-
ings was hit, was not sufficient to warrant a verdict against him.

Tlie court erred in charging as it did, and in refusing to charge
as asked by the defendant.

The proposition is incontrovertible that to sustain an indictment
for an assault with intent to murder, the evidence must be such as
to warrant a conviction for murder had death ensued from the as-
sault. McCoy V. Slaie, 8 Ark. 451; Cole v. State, 10 id. 318; 1
Russ. on Crimes, 719; Whai't. Crim. Law, 467; Stark, on Ev. 53.

If the assault was made in a sudden heat of passion, caused by
the beating and maltreatment the defendant received from McClure,
and that was a provocation apparently sufficient to make the pas-
sion irresistible, and the death of McClure had ensued, the killing
would have been manslaughter, and not murder.

If therefore the intent was not so criminal as would have made
the killing murder if McClure had been killed, the crime could not
have been greater if the act, or sl*ooting, had resulted in the unin-
tended death of llearstings.

Bishop, in his work on Criminal Law, says: ** Hoav intensely evil
the intent must be to infuse the bane of criminality into the unin-
tended act, is not easily stated in a word. Evidently there may be
cases wherein * * * * it is too minute in evil for the law's
notice, the same as when the act is the true echo of the intent, and
as when carelessness exists. So also, as on the one hand, the evil
intended is the measure of a man's desert of punishment; and on
the other hand, the injury done to society is the measure of its in-
terest to punish, and punishment can only be inflicted when the
two combine. It follows, that where the law has different degrees
of the same offense, as in felonious homicide, which is divided into
murder and manslaughter, the crime must be assigned to the higher
or lower degree, according as the intent was more or less intensely
wrong. * ♦ * * Thus we have seen that to shoot unlawfully,
but not feloniously, at the poultry of another, and thereby acci-
dentally kill a human being, is manslaughter; to do the same with
the felonious intent to steal the poultry, is murder." 1 Bish.
Crim. Law, § 334. And Wharton says: "Where a blow aimed at
one person lighteth upon another and killeth him, this is murder.
Thus, A., having malice against B., strikes at and misses him, but
kills C. This is murder in A.; and if it had been without malice,
and nnder such circumstances that if B. had died it would have

Digitized by



Lacefield v. State.

been but manslaughter, the killing of C, also, would have been but
manslaughter.'' 2 Whart. Crim. Law, § 965; 1 Hale, 766, n. 11.

Whilst it is true that every person is presumed to contemplate
the ordinary and natural consequences of his acts, such presump-
tion 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 pre-
sumed from the act

" If the act is alleged to be done," says Greenleaf, '* with intent
to commit one felony, and the evidence be of an intent to commit
another, though it be of the like kind, the variance is fatal. Thus,
when a burglary was charged with intent to steal the goods of W.,
and it appeared that no such person as W. had any property there,
but that the intent was to steal the goods of D., the alleged owner
of the house, and that the name of W. had been inserted by mistake,
instead of D., it was held that the indictment was not supported."
:i Greenl. on Ev., § 17.

In the case of Rez v. NoUy 34 Eng. Com. Law, 522, the prisoner
was indicted for shooting at John Hill, with intent to murder him.
It was proven tliat the prisoner, intending to shoot and kill the
Rev. James Lee, shot at Hill, mistaking him for Lee, but without
doing him any injury. The judge left it to the jury to say whether
there was an intent to murder Hill. The jury found that the pris-
oner did not intend to do any harm to Hill, and the judge directed
an acquittal. 2 Stark on Ev. 572; Slate v. Neal, 37 Me. 468; Stats
V. Jefferson, 3 Harr. 571 ; Ogletree v. State, 28 Ala. 693.

Section 1327, Gantt's Digest, which declares that if any person,
of his own malice, attempt to shoot, or to do some bodily injury
to some particular individual, and in attempting to do so shall
shoot or injure some third person against whom the offender had
no evil design, he shall be held and adjudged to be guilty in the
same manner as if the injury had fallen on the person intended —
has no bearing upon the question before the court It has, as ap-
pears by both its language and the context, relation to maiming
and wounding, and prosecutions under it are for the maitning or
bodily injury done, and not for the assault or attempt

It follows that the fact that Hearstings was struck by one of the
bullets, but tended, as any other fact or circumstance in the case,
to prove that the defendant shot at him; and if, from all the evi-
dence in the case, the jury were satisfied he did not shoot at him.

Digitized by



Wood V. Stote.

bnt at McClure, or were in doubfc as to which he shot at^ the charge
in the indictment was not sustained.
[Omitting other matters.]

Judgment reversed and cause remanded. .

Wood v. Statb.

(84 Ark. an.)
Oriminal law — larceny — ifUefU — drunkenneeB.

One wroDgfollj taking the piopertj of another, bat too drunk to entertain a
felonious intent, cannot be convicted of larceny.

/CONVICTION of larceny. The opinion states the case.

Henderson^ attorney-general, for State.

Harrison, J. The appellant was tried and convicted of the
crime of grand larceny in stealing a pistol, the property of one

The pistol, which was of the yalne of $8, was taken from the
room of the owner, at a hotel, and out of a coat pocket, on the
night of the fifth of August, 1879, and was, on the fifteenth of the
same month, found in the defendant's possession.

The defendant, a lawyer, had been for three or four years very
intemperate, and for several weeks before he was found with the
pistol m his possession, almost continuously drunk. On the night
of the fifteenth of August he was very drunk — according to one
of the witnesses, crazy drunk — and the constable, learning that he
had a pistol, to prevent his doing harm, took it from him, when it
was found to be the pistol that had been taken from Cheek's room.
When it was taken from the defendant, he said it had been given
him by one Hamp. Lane, who had then, as was proven at the trial,
left the ccunty. Several witnesses testified that the defendant's
conduct during his spree, or drunkenness, was strange and unnat«
ural — quite different from such as is the effect of ordinary drunk-
enness — and that he appeared demented to some degree. One of

Digitized by



Wood V. Stat6.

them^ a physician, who had kuown him two or three years, said
that there were times during his spree when he thought he did
not know what he was about, and he believed his mind^ by long
and oxcessiTe indulgence in ardent spirits, had become impaired ;
and another physician, who was called to see him on the seventeenth
of August, the day after his arrest, said ])e found him suffering
with symptoms of mania a potu, and that the functions of the
brain were partially paralyzed.

It was proven that the defendant had previously borne a good
character for honesty and integrity.

The court was asked to instruct the jury for the defendant, that
if they believed, from the evidence, the defendant took the pistol,
but that at the time he was so under the influence of intoxicating
liquor that a felonious intent could not have been foimed in his
mind, they should find him not guilty; which instruction the court
refused to give.

As a general doctrine voluntary intoxication furnishes no excuse
for crime, even when the intoxication is so extreme as to make the
jHfrson unconscious of what he is doing. *' Perhaps no better illus-
tration of the doctrine," says Mr. Bishop, "can be given than to
state its application in ordinary cases of homicide. The common
law divides all indictable homicides into murder and manslaugh-
ter; but the specific intent to kill is not necessary in either. A
man may be guilty of murder without intending to take life. He
may be guilty of manslaughter without so intending; or he may
intend to take life, yet not commit any crime in taking it. Now
the doctrine of the courts is, that the intention to drink -may fully
supply the place of malice aforethought; so that if one voluntarily
becomes so drunk as not to know what he is about, and then with
a deadly weapon kills a man, the killing will be murder, the same
us if he were sober. In other words, the mere fact of drunkenness
Avill not alone reduce to manslaughter a homicide which would
otherwise bo murder, much less extract from it altogether its in-
dictable quality." 1 Bish. Cr. Law, § 401. But he says that, ''in
cjises where the law requires not general malevolence, but a specific
intent to commit the particular act, which intent must concur
with the act in point of time, in order to constitute the offense
charged against a prisoner, he cannot be guilty, if at the time when
the act transpired, he was so drunk as to be incapable of entertam-
ing such intent." Id., § 408.

Digitized by



Carp V. State.

'' latoxicatioa is np excuse for crime/' said Judge Baxdwik, in
United Stales v. Raudenbush, 1 Baldw. 517, " when the offense con-
sists merely in doing a criminal act, without regarding intention.
But when tiie act done is innocent in itself, and criminal only when
done with i\ cornipt or malicious motive, a jury may, from intoxi-
cation, presume that there was a want of criminal intention; that
the reasoning fatiulty, the power of discrimination between right
and wrong, was lost in the excitement of the occasion. But if the
mind still acts; if its reasoning and discriminating faculty remain,
a state of partial intoxication affords no ground of a favorable
presumption in favor of an honest or innocent intention, in cases
where a dishonest and criminal intention would be fairly inferred
from the commission of the same act when sober."

In larceny there must be a concurrence with the act — an intent
to do it — and also a felonious intent; and the same author we
have quoted Siiys: *' A bare intentional trespass not being larceny,
but the specific intent to steal being necessary, also, if one who is
too drunk to entertain this specific intent takes property, relin-
quishing it before the intent could arise in his mind, there is no
larceny." Id., §411; Wenz x. State, 1 Tex. Ct App. 86; Johnson v.
State,' id. 14G ; I^za v. State, id. 488.

Tlie instruction should have \yeen given.

[Omitting minor matters.]

The judgment is reversed, and the cause remanded, with instmo*
tioDS to grant the defendant a new trial.

Judfffnent reversed and cause remanded.

Garr v. State.

04 Arkl 44^)

Criminal law — concealed weapons — journey — unloaded pieioL

IMendant, living in Arkansas, had been on a visit to Memphis, and on hto
retam stopped a few hours at Marianna, Lee county, Arkansas. Whll*
there he carried two pistols on his person, both unloaded and one withoat
a tube. Held, that he was not then ** upon a journey/' but that he was net
" wearing weapons/' within the meaning of the statute *

• See HutdUnson r. 8taU (08 Ala. 3), 94 Am. Rep. 1 ; OhoUon v. State (&3 Ala. 519), SI
Am. Rep. 668, and note, 054.

Digitized by



Oarr v. State.

CONVICTION of wearing concealed weapons. The opinioii
states thd case.

Henderson, attorney-general, for State.

Eakik, J. Apellant, in May, 1875, was indicted in the Lee
Circuit Court, charging: That he " unlawfully did wear a pistol,
concealed as a weapon, when not upon a journey." At the spring
term, 1879, the case was submitted to the court as a jury, the
defendant fined and an appeal taken, with bill of exceptions setting
forth the evidence.

It appears that appellant had been on a visit to Memphis, and on
his way back to his father's stopped a few hours in Marianna, in
Lee county. Wliilst there he was observed to be wearing a pistol,
a portion of it being seen. He was arrested, but discharged. Two
pistols were found upon him, neither of which was loaded, and one
was without a tube. After his arrest he deposited the pistols with
his baggage.

The court decided tlie case on the ground that defendant, whilst
stopping over at Marianna could not be said to be on a journey,
and should, to avoid a breacii of the law, have deposited his pistols
with his baggage, and not carried them on his person. This is
correct, if the appellant was really wearing them, or cither of them,
as a weapon. Tlie exception in the statute is to enable travellers
to protect themselves on the highways, or in transit through popu-
lous places ; not to allow them the privilege of mixing with the
people in ordinary intercourse about the streets, armed in a manner
which upon a sudden fit of passion might endanger the lives of
others. Travellers do not need weapons whilst stopping in towns
any more than citizens do. They should lay them aside, unless
the delay be slight and tlie journey soon resumed. The jury, or
court sitting as such, can best judge of all the circumstances, and
determine wliethcr the spirit of the law has been violated. No
rule with regard to this can be formulated. The intent governs,
and the question of fact is, was? the defendant really prosecuting
his journey, only stopping for a temporary purpose, or had he
stopped to stay awhile, mingling generally with the citizens, either
for business or pleasure?

The offense is alleged to have occurred in December, 1874, when
the Revised Statutes contained the only act upon this subject in

Digitized by



Halbrook v. Stote.

force. See Orantf s Digest, § 1517. It is made a tnisdemeanor to
'' wear any pistol, etc., * * concealed as a weapon,'' unless
upon a jonmey* It will be perceived there are three essential ele-
ments in the offense. The implement must be worn, that is,
placed abont the person and carried around in some way, to be at
all times accessible. If it is merely and in good faith being trans-
ported to be repaired or given to another, or for purposes of trade,
or any other object save to be used in fight, it cannot be said to be
worn. It must be concealed; that is, so hidden from general
view as to put others off their guard ; and lastly, it must be carried
as a weapon ; that is, for the purpose of having it convenient for
use in fight.

In this case the implements found on defendant were pistols, and
worn concealed. But they were not, either of them, loaded, and
one was wholly unfit for use if it had been. These things, af9rm-
ativcly shown, rebut the presumption that the pistols were worn to
be used as weapons. They could not be so used. If the State, in
a given case, should show that pistols were worn concealed, the
jury might well presume that they were loaded and worn as weapons.
But the defendant might remove the presumption by proof. It
would be one of fact and not of law.

The attention of his honor, the Circuit judge, seems to have
been directed to the point of defense based upon the journey,
which he correctly decided. For want of sufficient proof that the
pistol was worn as a weapon, a new trial should have been granted.

Reverse and remand for the purpose.

Reversed and remanded.

Halbbook v. Statb.

(34 Ark. 511.)
Criminal law — bigamy — etidenee.

Where A. marriefl B. ; and afterward during B.'s life, marries C. ; and still«

afterward, when B. Is divorced, but during 0/s life, marries D. the last

marriage la not bigamous, because the second was void.
In a trial for bigamj, marriage may be proved bj admissions and evldenoe of

marital cohaUtation and holding out. (8ee rwte^ p. 23.)
A decree of 'divorce, granted upon notice to the defendant, is evktonoe of the

marriage. {See note, p. 22.)
Vol. XXXVI-^

Digitized by



Halbrook v. State.

/CONVICTION of bigamy. The opinion states the

Fletcher, for appellant
Henderson, attorney-general, contra.

Enolish, C. J. [Omitting, unimportant statements.} TheindicL
mcnt charges, in substance, that on the second of Novemiber, 1866,
the defendant was married, in Conway county, to Jane Honeycutt,
and that, on the twenty-sixth of July, 1875, when she was living,
and still his wife, he feloniously married Mary Mahan, in said

He was tried at the September term, 1879, found guilty, and the
jury fixed his punishment at imprisonment for three years in the
penitentiary ; a new trial was refused, he was sentenced, took a bill
of exceptions, and prayed an appeal, which was allowed by one of
the judges of this court.

[Minor matters omitted.]

TI. After the State had closed, appellant introduced Miles Price
and Thomas Halbrook, who stated, after being sworn as witnesses
in the case, that they had been acquainted with the appellant for
many years ; that he was married when about nineteen years old to
one Margaret Halbrook, in Perry county, Tennessee; that he was
now (time of the trial) fifty-seven years of age ; that they were not
present at such marriage, but by reputation such marriage occurred
within ten miles of where they resided, and that within a few days
thereafter, appellant brought his wife into the immediate neigh-
.joihood of witness Price, and there they remained together as hus-
band and wife for two or three months, and that appellant and his
said wife, Margaret, lived and cohabited together as husband and
wife, in the State of Tennessee, and later in the States of Arkansas
and Missouri, for many years, and had bom to them, and reared by
thorn, a large family of children ; that some of said children now
reside in the neighborhood of witness, and that witness had, within
the last three months, seen letters from Margaret, wife of appellant,
wlio, by reputation, still lives in Green county, Missouri, but wit-
ness had not seen her since 1863.

But the court ruled that such evidence was irrelevant and incom-
petent, and excluded the same from the jury, to which ruling ap*
pel Ian t excepted.

Digitized by


T^OVEMBER TERM, 1879. 1<)

Hslbrook v. State

Appellant then offered in evidence a certified transcript of th^
record of a decree, rendered in the Circuit Court of Phillips county*
in the State of Missouri, on the twenty-eighth of November, 1866, in
a suit for divorce by Margaret J. Halbrook against Jeremiah H.
Ilalbrook dissolving the bonds of matrimony theretofore contracted
between them, and giving her the care of their infant children, and
alimony to be charged upon certain real estate of the defendant in
that suit. The decree shows that the defendant therein had notice
bj publication, and that there Irad been a previous default entered
agminst him, but does not show when the bill was filed, nor when
the marriage dissolved by the decree had been entered into by the
parties to the suit.

The court refused to permit appellant to read in evidence the
transcript of the record of the decree, and lie excepted.

Appellant offered no other evidence.

The appellant asked the court to give the jury seven instructions.
The court gave the first, which defined the crime of bigamy (having
giving a similar instruction on the part of the State), and refused
the others.

(a) The court having excluded all of the evidence offered by ap-
pellant, there was nothing on which the instructions refused could
be based. They were mere abstract propositions of law.

The instructions refused presented, in different forms, the prop-
ositions that appellant's marriage with Jane Honeycutt, when his
first wife, Margaret, was living, and undivorced from him, was null
and void, and that his marriage with Mary Mahan, after the first
wife obtained the divorce, was not bigamous, because he then had
JIG lawful wife.

(b) If the facts hypothecated in this proposition had been proved
by competent evidence, it would have been good law.

Upon the hypothecated facts, the case would have been similar,
on principle, to Lady Madison* 8 case, reported in 1 Hale's Pleas of
the Crown, p. 693, thus : '^ A. takes B. to husband in Holland, and
then in Holland takes C. to husband, living B. and then B. dies,
and living C. she marries D., this is not marrying a second husband,

Online LibraryIrving Browne Isaac Grant ThompsonThe American reports: containing all decisions of general ..., Volume 36 → online text (page 6 of 123)