1192 CHEEKS V. STATE. [169 . CHEEKS V. STATE. Opinion delivered December 21, 1925. 1. HomICIDE—ASSAULT WITH INTENT TO KILL—EVIDENCE.—ID a prosecution for an assault with intent to kill, evidence held to sustain a conviction. 2. HOMICIDE—LIABILITY or ACCOMPLICE.—In a prosecution for an assault with intent to kill a girl riding in a car driven by defendant, a conviction of the latter would be sustained where the evidence justified a finding that he and another were acting in concert in endeavoring to compel 'the girl to ride with them, though it does not appear which of them struck the blow. HOMICIDE—ACTS OF ACCOMPLICE—INSTRUCTION.—In a prosecution for assault with intent to kill, an instruction on the liability of defendant for the acts of a companion, held not erroneous when its sentences are read together, as allowing the jury to find accused guilty thereby because of his presence, especially in in the-absence of specific objection. 4., HOMICIDE—ASSAULT To KILL—PREMEDITATION.-AD a prosecution for . assault with intent to kill premeditation and deliberation are 'not essential elements. Appeal . from Lonoke Circuit °Court; George W. Clark, Judge ; affirtned. • Reed & Beard and Trimble & Trimble, for appellant. H. W. Applegate, Attorney General, and . Darden Moose, Assistant, for appellee.
ARK.] CREEKS V. STATE. 1193 MeCuLLocn, C. J. Appellant was convicted of - assault with intent to kill . under an indictment charging him with assaulting and striking Josie • Woods with a metal bar with intent to kill and murder her. Josie : Woods is . ,a girl about nineteen years of age, living with her parents at or near the village of Ryan, in Loneke County. She testified that she had been personallY acguainted with appellant, Lee Cheeks; and alse with 'Fred Woosley, two young men in the neighborhood, and that late in the . afternoon of Sunday, April 12, 1925, thoSe young men came ,to her louse, and invited her to go to . church with them at Coy, a village not far 'distant, and suggested that she get 'another girl to' accOmpany Woosley; . that she assented to this arrangement, and that she and appellant got into a stripped-down-Ferd . car to drive over t • o . Humnoke to-see' abont getting another girl, and left Woesley there near, the . home of witness to await their return; that she and appellant went on down to Huinnoke, and that, instead' of stopping there, appellant' drove the car on through the town and • into the woods, and stopped and' got out and invited the witness to get out . of the car and help him . to fill. up the radiator, and that upon her refusal he cursed her ; that appellant' then got back into the car and they drove back honie, and • as they approached the honie of witness, Woosley stepped out into the road ahead of them' and gave a signal,anet upon the car being stopped he stepped up on the running board, and as the car moved along; witness insisted upon' being permitted to get out of the • car, 'but appellant refused to stop the car for her; and as she turned with one foot upon the running board she was' struck over the head, and instantlY became uneon-scious. She testified that she was struck by •sorne one while the car was moving along the road with' appellant at the wheel and Woosley standing on the right-hand running board, but that she did not know which one' of them . it' was that struck her. She testified' that appellant and Woosley both used • rough language tOwariU
1194 CHEEKS V. STATE.. [169 het when she spoke Of getting out of the car. The car pasSed'on, and a little while later other persons found Josie Woods lying Unconscions on the roadside; • and she was taken to . the office of •a physician, .Dr. Ward, at Pigland, who „testified as to the conditipn of, the w • ound . o • n . her head.. • The physician testified that Josie Woods : had blood all over her head and face and clothing,' that there was a gash on her head about three or four, ,inehes, standing open, and that he sewed up the wound, and dressed it. He testified that, , in his opinion, ,the , wound was made by a blow, of some kind, and net Tipp falling out of the car, and that the gash was about, the same size. of the edge ,of a metal bar which was found inside,of,the,, car, by other witnesses. He testified that , there -were' no evidences on , her body, of scratches or ;wounds other than the cut , on her , head, Another physician . tes . tif . i ed rt • he same as Dr. Ward. : Witness Duncan testified that , about: eleven, o'clock on the night of the injury to Josie Woods the found. the car in which the parties had been ridingat the back end of , a certain, drug store, ,and -that he found in the, car one. of the leaves of an automobile •axle .spring,„which ;Was about twelve inches,long, two inches wide and one-fourth, of an inch thick, ,and weighed. about three„and, a ,half, pounds. . , • , • .„, • r •• ' According to the testimony; the FOrd,car in which the parties were riding had a home-made, top, which was low and small, not' giving sufficient, froom . overhead ;for a blow to be struck on the head of 'a •person , sitting the car. Appellant teStified that neither he - nor Woosley struck Josie Woods, •but that she jumped fronr : the car and fell: The theory of appellant is.that it was impossible.for the girl to have been struck OVer the head while she was sitting in the car as she claimed. , : The teStiinOny show§ that' appellant'and WdoSley spent the night at the home 'of' a negro in the. :neighbor-
CHEEKS' V. STATE. 1195 hood, and . fled the , country early the net morning,: going first to' . .Mason; MissiSsiPpi; ivh ere . they enlisted"in the ar . iny,.• and ' thence to NOrth Carolina; Where they' Were -ApPrefiended; 'arid' brought' baek i tb ArkAiisaS for triaL It IS . f earrie • g l • y,insisted by counsel for apPellant that the evidence was inSufficient to sUstain the verdict,. in . that ,nQ witness testifield, i directly ithat..gither: appellant , or . :Woosley , struck the .1,Vow,.;Qr, that ,Iosie:.Woods yas , All. ,as ;before , stated,. ; that ;she could/ not . have. been ,struck oyer the :head- while :she, was • sitting in, the , car, ,and, : that the ; wou. ncl . ; innst.have; , been inflicted after ,she. left . the. car,.. or. that _she hurt . :herself when. she .jumped,from. the:car., We cannot agree .with .counsel ip.;:this, contention; .for•the witness ..Josie Woods , testified positiyely„that she was ; hit oyer, the .head . while •she, wa s;; sitting; 'in,:the,..car,., turned , sideways •with her , right. foot :on the running, board, , She ,testified that ,she ,not, ;know wbo„it was ;that struck, her, but that there : one - , else , in, , proximity, ; except- appellant and Woosley. If the . jury ;beljeyed . the ;witness in her ,state7 . rhea : that . she .wa y s • f struck oyer the head,, then• .was
, ;fairly: inferable from, ;the ,testimen'y that the' blow• was strui ek,-either: hy appellant . or ,Woosley.,, ,It is undisputed . that:they, were the 'only ;two; persons. in , or :about . the , car except . the; , witneso. t lbsie :Woods , herself: The; fact that :no .blood was , fonnd . in. oroAbont the,. car, and that :the. ;t0p of the :ear. was Apparently too; Tow, to ,allow : sufficient cro 0.1n .fer a person . to. wield • a. piece. 4 iron and., ,strike on , . the . head , the ;girt , while , sitting iii the ear, ,tended to weaken -tbe- ,force of, the State ? ,s 1:eontention that the..,girl :striick while she; Was: : sitting in the . gar. .But this , affectod • only,the eigbt of , the • teStim.ony; and it, wkis ,a (question, After . all; ; for.; the , jury , to detennine • whether; or, pot,:the .•gitlf was telling the..truth,, when,shev .sol:(1, that some one ;istrtek her. !over. . the, head . : while , she,. was! ;sitting .i in. , the car. The testimony showed that it waS: improbable that • ' the ._ bloW. iWas, struck; as ;claimed by the girl,. but ! it ;does not show, indisputably-, .that it , was , imposSible for - the blow
1196 CHEEKS V. STATE. (169 to have been struck under those circumstances. The physician who examined the girl and dressed the wound testified:that the gash ou the side of the girl's head was about the •size of the edge of , the piece of metal found in the car, and that the wound could scarcely have been inflicted by her jumping or falling from the car to the road. The immediate flight of appellant and his companion is another circumstance which tends to connect them with the 'commission of the crime. Appellant undertook to explain it by saying that shortly after Josie Woods sprang out of the car, and he and Woosley drove away, they heard a statement from a passerby that Josie Woods had been found lying unconscious on the road, and that she had been ravished, and that that was the reason they left the State. Their immediate flight was, as before stated, a circumstance tending to show guilt, and appellant's explanation to the jury made a question for the jury to determine what his motive was in fleeing. Again, it is insisted that . the evidence is legally insufficient for the reason . that . it does not show which one of the two parties, appellant or Woosley, struck the blow, and does not show any concert of action between • the two so as to make them both guilty. There was proof tending to show concert of action between the 'parties for the reason that they were on a joint enterprise from the beginning—not an unlawful one, it is true—but they were both using abusive language to the girl and insisting on her going with them, when she expressed a desire to get out of the . car. The jury had the right ' to find from these circumstances that both of the parties were working towards the same end in compelling the girl to accompany them, and that each encouraged the other, so that each was responsible for the act of , the other. It is unimportant which one of the parties struck the blow, for, if the other was , present aiding and abetting, both were equally guilty. Errbr of the court is assigned in giving, instruction No. 7, which reads, in part, as follows : •
Alta.] CHEEKS V. STATE. 1197 'While the indictment, gentlemen of the jury, • in this'case charges-that this defendant struck-ithiS lick, if aSsoeiate, Woosley, struCk the lick, if one waS,struck, and • the defendant had knowledge that 'he -Was going to •SO. do, then all • parties who• were preeiit, aidink, On-senting, -.advising, encouraging,. as§isting or , abetting can be:indicted and punished as principals. Under the evi-.dence in this case, the law of accomplides' does hot apfily. If-any One struck' this young woman, all' Other •Parties who w e re pr oQo ut, and there 'were only 'two Un d er this evidence besides herself, and they had knowledge of the fact that the lick was going to be inflicted, if one was inflicted, they both would be equally guilty." The objection made to this instruction is, first, that there is no evidence to warrant a finding that appellant struck tho blow himself. or 'that. he aided and abetted Woosley in doing so, but we have already shown,that there was ,evidence which Warranted , this inference by the jury. It is alSo argued that under -the second sentence of this instruction the jury could have found Appellant guilty merely because' he 'was present when. Woos-leY . struck the blow, :even . though he did:nothing in aid or encouragement of the commission of the crime. Counsel for appellant made specific objections to the instruction, but not on this ground. When the two ,sentences are considered together, it iS evident that the-court intended to convoy to : the minds of the jury the idea that, in''order to' convict apPellant;if,Woosley struek:the.blow, he, inust have been present, ;aiding and abefting,,.and not merely that his presence would be.sufficient to' justify a conviction.. The two sentences should be read together, 'and: there should.at least have been a specific objection made on that ground 'Hit ; . was thought that the jury might . understand the instruetion to mean that , the 'mere presence of appellant, Without anything More. would make him responsible for the unlawful act of Woosley. • Objection is' made to : another instructron on the ground that it omits the eleMents of premeditatiOn arid deliberation as e . ssential to the crime of . assault with
intent to kill. It is not essential that those elements should exist, for if the assault was made with specific intent to kill and the circumstances were such that, if death had resulted, it would have constituted murder, either in the first or second degree, the offense is assault with intent to kill. Therefore it is unnecessary that the assault should have been made with premeditation and after deliberation. 'We find no error in the proceedings, and the judgment is therefore affirmed..
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.