ARK..] MARES V. STATE. 881 ' MARkS V.. STATE. - .; Crim • . 3 9.9 . 2 Opinion-delivered June 22, 1936., 1. CRIMINAL LAW.—Since trial judges ilaV large disdretion as 'to •c , the time of introducing testimony, a ' refusal, in . a• piosecution for 'assault with • intent to :kill, , to delay :the trial because ,of .the 'ab,-; sence of a witness when . there were : other ;Wiinesses. thut ,could be and were called held not error in absence of showing of prejudice. 2. *CitimINI, LAW.—A' remark ! 'the.; court,,iri a 'prosecution for 'assault . with intent . to kill, !that ' witness, for !whose absence delay . was: requested, , " .w, ould ,be, brought in' on . a ,stretcher, ; i ,necessary,'! ,. Was not prejUdicial error ealling for . the reVereal,of; the judgment. 'Appeal :froni Saline Cireuit Court ; Henry B Meang; judge; mOdified: ; - • * ; • • .,.: MOD McC ray ce. Crow, for appellant.. • • Cart E ...Bailey, AttorneY : General,. ati'd, Guy . R.Wil tiams, .Assistant, for appellee. • - :.JeltINSCII■f; C. J. Appellant, Mrs. • Marks, was *indicted for' the criine Of 'assault ; with 'intent : kill alleged • AO have been 'emnmitted . by . 'shooting' :Pauline Daughertywith'a !piStoL ! She Was •convieted 'and hai been sentenced to a : term 'of 'ten years , in the lienitentiary.: ; The prdsecuting WitneSs is -a young . woman 19 :Years of:age at the time of the trial' ' , • • i42 year§ ! old. -These ! wornen were neigh-: bors reSiding! on' adjacent lots, Alla Were bitterly: hostile' to each other:' , Mrs: ', Daugherty • 'testified 'that *she saV Mrs. Marks' go' acro g s -the road to .her mail bOx when -she alSo went' a-crOSs the :road:to speak to:Mrs: Marksi I Who Without 'warning or lirovacatioll hegan 'shooting : dt her,: firing twice. She was struck by one of -thesehots''aria• painfully, wounded.' 'Under : correct: instrnctions; the) ury fOund that: M'rS.: Marks' had cOmMitted assailltwitir" intent :to' kill; ! and' the testimonY is siifficient : to :sustain. that finding. ; • •• . I * ) • : • • : A reVersal is 'aSked because , 'aPpellant -was placed! Upon trial at a• time when her 'physical' condition:made: this perildus to lier life and prevented . her from: properry, presenting her defense. : The trial:judge* remarked that he, had : a: reputable doctor examine. Mrs.• Marks who had.
882 MARKS V. STATE. [192 reported that she had no physical ailments that would prevent her trial from proceeding. This physician's report is not in the record, nor is their any testimony relating thereto; but neither is there any testimony in the record to the contrary. • Mrs. Marks testified. at length in her own behalf, and nothing appears in the record to show an abuse of the discretion which trial courts must exercise in this and in similar matters. At the conclusion of the State's evidence Mrs. Hogue who had been duly subpoenaed was called as a witness. She was not then present, and appellant objected to proceeding until Mrs. Hogue was first placed upon the stand. The judge ordered the trial to proceed, and remarked that Mrs. Hogue would be brought into court, if she had to be brought in on a stretcher. Mrs. Hogue later appeared and testified, but after other , witnesses had been placed on the stand. Clearly, there was no error in the court's ruling, in refusing to delay the trial for the absent witness, when other witnesses were present who could be and were called. A large discretion is y ested in trial judges as to the• time of introducing testimony and re y ersals will not be ordered unless it is shown •that this discretion has been abused to the prejudice of the objecting party. No prejudice appears to have resulted from the refusal to delay the trial until Mrs. Hogue should appear. . The remark of the court that she would be brought in,,on stretcher, if necessary, appears to have been more :emphatic than the occasion required, but' it cari.not be said that this was prejudicial error calling for the reversal of the judgment. Instructions were asked, which have been held proper to be given, where the prosecution relies upon circumstantial evidence for a conviction; but they were properly refused in this case as the prosecution did not rely on circumstantial evidence, and the jury was properly instructed as to the law relating to the existence of a reasonable doubt of the guilt of the accused. • We are of the opinion, hoWever, that the sentence.is excessive. The remarks of the trial judge in,imposing
ARK.] MARKS V. STATE. 883 sentence indicates that he was of the same opinion, although he ordered no reduction, as he might have done. Mrs. Daugherty testified that immediately before she was shot appellant fired her pistol. Appellant admitted doing so, but stated that she shot at a hawk in her own yard. It is not contended that appellant fired this shot at Mrs. Daugherty. There was testimony to the effect that Mrs. Daugherty had said she was going to beat the hell'out of the appellant, and this threat had been communicated to Mrs. Marks. Mrs. Daugherty denied making the threat. Mrs. Daugherty saw Mrs. Marks going across the road to her mail box. She testified that Mrs. Marks had been telling some terrible things about her which she wanted cleared up. "I had gone far enough." Mrs. Marks got a letter out of her box which she was reading when Mrs. Daugherty approached. Mrs. Daugh-erty admitted that Mrs. 'Marks told her to stop when she saw her approaching, but she did not do so as her intentions were peaceable, and she only wanted to clear up the gossip. She admitted that she struck Mrs. Marks, whose eye was blackened by the blow, but stated that she did not do so until she had been shot. Mrs. Marks testified that she saw Mrs. Daugherty angrily approaching with something in her hand, which she now thinks was a rock ; and that Mrs. Daugherty struck her with this object, whereupon they clashed and fell to the ground, and she fired the pistol. Mrs. Louella Garrett, a neighbor, being in the house adjacent to that of Mrs. Marks, testified that she was standing at a window and through it she saw the encounter ; the women were on the ground when the shots were fired, and that Mrs. Marks did not fire until Mr. Daugherty, Mrs. Daugherty's father-in-law, began beating Mrs. Marks over the head with his cane. Mrs. Hogue gave testimony to the same effect. This testimony was contradicted by Mrs. Daugherty and this conflict in the testimony was, of course, a question for the jury. But there are some facts about which there is no conffict. Mrs. Daugherty followed Mrs. Marks across the road where she had gone to get her mail. There ean be no question that Mrs. Daugherty was belligerent in manner. She admitted that Mrs. •Marks asked her to
884 - [192 stop, and-that she did not do so. She intercepted Mrs. Marks as she was going home reading her letter, and she waS: between Mrs. ,Marks and:Mrs. Marks .home when the .eneounter began. .. •. .• Mr: Daugherty testified that ,he saw Mrs. Marks fire her piStol; but he .did not :see nny hawk. He .heard her. say :i .`Pauline don't .come,.another. • step:• closer,,to me. , will kilt you. if . you come:any closer," and the shot& were fired before: the ..women .0:inched and fell. • :When they fell he. walked up and:began striking Mrs. Marks -over the, head with his..cane, and also struck her,,with his ,fist. Mrs -. Marks . testified :that .she, was •so excited And frightened: that; she .does not remember. when or how she fired, • . Under these circnmstances, .while the. testimony , is 1egaUy,snfficient to snstain the conviction for .assault with.intent to kill; -we are of the opinion that the sentence is;. excessive: and should , be, yeduced to , the . minimum punishment. Provided by. statute, namely,..one year, and it:will be so ordered-1302/ v. Stqte, axte.p.. 858, 95 (2d) 632., .
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.