858 .BALL V. STATE. [192 ..BALL • V. STATE. Crim. 3990 Opinion- delivered June 15; 1936. CRIM' INAL 'LAW-L ASAULT.—Where one draws and points a cocked shot-5 giiri at . inothei,' the 'presumption is that the gun was loaded; and . : if .it':were not, this must be shown in defense; but, under the evi-'Once; I -the sentence, held excessive,- and reduced to one. year.. Section 2330, Crawford, Moses' Digest. • Appeal :from 'Crittenden Circuit Court: . Neil 'Kit-lough,. Judge ; mOdified. • Nekell D. Fokler, for appellant. - • . :Car/ E. 'Bailey, Attorney General', and Guy E. ASSistant; for appellee. : McHAN'nv, J. Appellant was convicted on a charge of assault with intent to kill, and sentenced to seven years' in the State : penitentiary. The indictment charged that he Committed an assault upon one Everett Hood With' a deadly'weai)on, a . gnn, with the unlawful 'and felonions. intent at the time to' kill and murder said- Hood. . Appellant . is:a negro and is a mernber of the Southern Tenant.Farmers' Union. .0n tlie night of January . 16, I936,. a number of the members of said nnion, eluding appellant,:all negrOes, met at St. Peter's .Church in Crittenden rcOunty, sabout five miles north of Earle. They had placed a guard at the- door armed with a shOt. gun: Wilde . the meeting was in progress, Mr. Hood, a depnty . sheriff; in:passing by the church,- noticed a light and approached to see what was:going on. He saw two negroes at the door, and •as he approached they started tOrun. He . h.sked* the one . with the gnn what . he was doing and was . told that hp . was guarding the . door. He then' took the' gun from the guard, entered the church . and most of the, ocCupants fled, some through the back doer and some through the windows. He ordered the. others to pass out by him. Appellant was inside the rostrum, 'started Walking towards Mr. Hood, and, when about half way down the aisle, he picked up from beneath a bench a double barrel shotgun. According to Hood, the following occurred: "and I said: 'What are you going to do with that gun ; put it down.' And when
ARK.] BALL V. STATE. • '859 ' I said that he made two or three Steps toward: s me, at 'the time • he was coming up with the- shotgun ;: • sa ;le cocked.the gun down like this, and he shoved it down -on his leg, and I •said 'Boy, put that; gun down.'• 1 had that other negro 's shotgim in hand, I took from the; door-keeper, and when I said, why he didn't pay any a.ttention to me; just started—I was just about the . length' of a .bench, a seat, one of these benehes, 'about eight feet long, and when be went to come up 'to me with. the shotgun I throwed this negro 's gun up , and I hit the;hammer • of his pin, the cocked .gun, and , my foot. slipped; • and I had got a little closer; to him, and 'as; I was-gettiiig up. off the floor, I :grabbed the shotgun by 'both hands, and !started twisting the gun away from hiM and when I twisted the gun aW , ay-from him I naturally. knocked. it; out jof his handS, and I pulled my pistol out—I had'plit the shotgun ; down—and I : pulled my pistol: out and put it in 'his :ribs 'and told -him ta put . up his hands ; , and there' I• was With all those negroes, andthe two shotguns had disappeared, and he wanted to . knoW what I was' going to do . with him, and I made hini•go out the door ; and' I had . forgo•ten my flash light, and we went back and got.the flash For a rev e• rsals of the judgment, against him,, akel-lant contends that there is no avidence in the record that the gun, with which it 'is charged be Made the •aSsatilt, was loaded ; but that On the contrary, appe . llan , t h .„ im self testified that it was not loaded. The cOntention, that the undisputed proof is that tlie gun 'WO not lOaded, and that, therefore,. a necessary eleinent of . the charge 'assatilt is lacking, that is "coupled'with tkraseht to commit a violent injury upo • the . person of ,anather.' Our statute, § 2330, Crawford & Mases' DigeSt, Provides "An assault is an unlawful attempt, coupled' With present ability, to commit a violent injury on the person of another." . In the early case of Keefe v. State, 19 Ark. 190, it was said: "If one present : a loaded pistol at another, threatening to shoot him, and being sufficiently near for the shot to take effect, it is an assault . , ; Under such circumstances, the pistol is presumed to .have been loaded, and if it . . were pot, this must be shown in defense,' This • case was..cited with approval ill:Wells v. State, .108 Ark.
860 [192 312, 157 S. W. 389. So, here, appellant drew a cocked shotgun on Hood. The presumption is it was loaded. He says it was not, but he is an interested party and his testimony cannot be said to be undisputed. The jury had a right to disbelieve such testimony which they did, as the court instructed them that if they found appellant's gun was not loaded, and that he did not have the means at hand with which to carry out the intent to murder or to inflict other bodily harm, they should find him not guilty.. The gun used by appellant, as well as the one taken from the guard, disappeared during the melee, so it was not known to Hood whether it was loaded or not. A number of loaded shotgun shells were found on appellant at the time. No question is raised regarding the instructions, but an examination thereof discloses that the court fully and fairly covered the law of the case, defining assault to kill, assault with deadly weapon and simple .assault, the burden of proof, reasonable doubt and presumption of innocence. When we consider the facts set out above, we cannot s'ay there was no substantial evidence on which to base the verdict and judgment: But, in view of the fact that appellant and others were peaceably and lawfully assembled in furtherance of what they considered their own welfare, and in view of the manner of entry by the deputy sheriff, Mr. Hood, coupled with the fact that no shot was fired by appellant, we are of the opinion that -Ole sentence is excessive, and if will , be reduced to one' year in the penitentiary, the minimum punishment imposed by statute for assault with intent to kill. As thus modified, the judgment will be affirmed. It • is so ordered.
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.