Lisenby v. State

543 S.W.2d 30, 260 Ark. 585, 1976 Ark. LEXIS 1849

• Court: Supreme Court of Arkansas
• Decided: November 8, 1976
• Docket: CR 76-47
• Status: Published

Opinions

J. Fred Jones, Justice.

The appellant Robert L. Lisenby was charged on information Filed by the prosecuting attorney with the crime of “assault with intent to kill by use of a firearm.” He was found guilty at a jury trial and sentenced to 27 years in the state penitentiary with at least nine years to be served before parole.

On appeal to this court Lisenby has designated eight points on which he relies for reversal, but having concluded that he was entitled to a directed verdict as contended under his third point, we Find it unnecessary to discuss the other assignments.

The information Filed against Lisenby also included a co-defendant, Barney B. Norton, and the specific charge in the information was as follows:

The said defendants on or about the 2nd day of February, 1975, in Garland County, Arkansas, did unlawfully, wilfully and with malice aforethought make an assault upon one Norman Hall and Richard James with a deadly weapon, to-wit: a handgun by then and there shooting at them, the said Norman Hail and Richard James with said gun then and there had and held in the hands of him, the said Barney B. Norton, with the unlawful and felonious intent then and there, them, the said Norman Hall and Richard James wilfully and maliciously to kill and murder, in violation of Ark. Stats. Ann. 41-606, and the use of said Firearm in the perpetration of the said assault being in violation of Ark. Stats. Ann. 43-2336.

The facts appear as follows: In the early morning hours of February 2, 1975, one Norman Hall, a security guard at the Diamondhead Resort in Garland County, discovered that the “Pro Shop” at the resort had been burglarized and a quantity of merchandise had been removed therefrom. A golf cart was also missing and the golf cart was located near the premises adjacent to Highway 290. The canvas top of the golf cart had been removed and placed on the ground near the cart and the stolen merchandise was placed on top of the canvas top.

Mr. Hall and Richard James, in charge of golf course maintenance and construction, secreted themselves where they could watch the merchandise and around 6:30 A.M. an automobile stopped near the merchandise and two men got out of the automobile. The automobile traveled a short distance where it turned around and stopped again at the same location where it had first stopped. The two men went to the golf cart cover and started back toward the automobile carrying the canvas cover with the merchandise thereon between then. Mr. Hall shouted to the two men to halt and fired a pistol shot over their heads. The appellant Lisenby stopped and fell forward to the ground and his companion ran a distance of about 360 feet where he entered the waiting automobile. Mr. Hall then approached Lisenby and ordered him to get up from the ground, which Lisenby did, and at this point three shots were fired from the direction of the automobile. The bullets struck the ground near where James, Hall and Lisenby stood and Mr. Hall placed Lisenby between himself and the direction the shots were coming from.

A crime of assault with intent to kill and the penalty provided therefor are set out in Ark. Stat. Ann. § 41-606 (Repl. 1964) as follows:

Whoever shall feloniously, wilfully and with malice aforethought, assault any person with intent to murder or kill, or shall administer or attempt to give any poison or potion with intent to kill or murder, and their counselors, aiders and abettors, shall, on conviction thereof, be imprisoned in the penitentiary not less than one [1] nor more than twenty-one [21] years.

Thus, it is seen that “feloniously, wilfully and with malice aforethought” are necessary elements of an assault with intent to murder or kill, and Lisenby was charged in the language of this statute. To sustain an indictment for an assault with intent to murder, the evidence must be such as would warrant a conviction for murder if death had ensued from the assault. McCoy v. State, 8 Ark. 451; Lacefield v. State, 34 Ark. 275; Allen v. State, 117 Ark. 432, 174 S.W. 1179; Francis v. State, 189 Ark. 288, 71 S.W. 2d 469. Of course, intent to kill may be inferred from acts and circumstances of the assault but it cannot be implied as a matter of law. Ward v. State, 208 Ark. 602, 186 S.W. 2d 950.

The above comments are especially important in the light of additional statute, Ark. Stat. Ann. § 41-2507 (Repl. 1964), which provides as follows:

If any person shall shoot at any person, with the intent to kill or wound, although he may miss or fail to hit the person aimed at, he shall be deemed guilty of an attempt to kill or maim, and on conviction shall be fined not exceeding three thousand dollars [$3,000], and imprisoned not exceeding seven [7] years.

In Lacefield v. State, supra, the distinction as to intent becomes important as between the two statutes. In Lacefield we said:

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 assault.

This court has said that in order to convict for assault with intent to kill, the state must prove without a reasonable doubt that an accused committed an assault and that it was with intent to murder. Allen v. State, 117 Ark. 432, 174 S.W. 1179. It is elementary under Arkansas law that one who is present, aiding and abetting in the commission of a crime is equally guilty as reiterated in Cheeks v. State, 169 Ark. 1192, 278 S.W. 10; Woolbright v. State, 124 Ark. 197, 187 S.W. 166, and Lacy v. State, 177 Ark. 1056, 9 S.W. 2d 314. These were assault with intent to kill cases but in them the accused, unlike Lisenby, were aiding and abetting in the commission of the crime charged or at least there was evidence from which the jury could have so found.

In 23 C.J.S. § 786 (2) is found the following:

In order to be an accomplice, one must in some way be connected with the crime charged against accused. Thus, it is not sufficient that he was connected with the accused in commission of other offenses.

See State v. Walters, 209 P. 349, 105 Or. 662. See also Coleman v. State, 121 A. 2d 254; People v. Webb, 25 N.Y.S. 2d 554, reversed on other grounds, 26 N.Y.S. 2d 386; State v. Bowman, 70 P. 2d 458, 111 A.L.R. 1393; Washburn v. State, 318 S.W. 2d 627; Warren v. State, 132 S.W. 136. See also Soloman v. Commonwealth, 270 S.W. 780; People v. Cowan, 101 P. 2d 125; Warren v. Commonwealth, 333 S.W. 2d 766.

There is considerable difference in the case at bar and such cases as Bosnick v. State, 248 Ark. 846, 454 S.W. 2d 311. In Bosnick a father and son and two other young men were in the process of robbing a store when a policeman appeared on the scene and two of the robbers shot and killed the policeman. Each participant was charged with first degree murder. Bosnick, Sr., took the other defendants to the grocery store; all of them were armed and Bosnick, Sr., waited outside the store while the other three carried out the robbery with stocking masks over their faces. The defendants in Bosnick were not charged with the homicide in perpetration of robbery, but were simply charged with first degree murder. We pointed out in Bosnick that when a group plans an armed robbery, “Each one of the party would be responsible for everything done which followed directly and immediately in the execution of the common purpose as one of its probable and natural consequences.” Citing Clark v. State, 169 Ark. 717, 276 S.W. 849 (1925). Then in Bosnick we continued as follows:

[T]he jury could have attributed to the elder Bosnick a full share of responsibility for what took place inside the Gatteys store, even though the original plan did not contemplate a homicide. Henry v. State, 151 Ark. 620, 237 S.W. 454 (1922). But the jury was not required to do so. By the decided weight of authority, and by what we regard as the better rule, the jury may assign degrees of guilt among the conspirators in accordance with their respective culpability.

In the case at bar the evidence is clear that Lisenby was associated with Norton and another individual in the theft of the merchandise from the Pro Shop, but Lisenby was apprehended in the theft of the merchandise. He offered no resistance to his arrest and was under the observation and complete control of the arresting officers when the shots were fired toward him and the officers. All three participants in the attempted theft of the merchandise abandoned the merchandise when the officers appeared, Lisenby surrendered and the other two ran away. After Lisenby was completely in custody offering no resistance whatever, one of his two former companions in fleeing from the scene fired three shots in the direction of Lisenby and the officers, and that was the sole basis for the charge against Lisenby of assault with intent to murder or kill.

As already pointed out, to sustain a conviction for assault with intent to kill the evidence must be such to have sustained a conviction for murder had the homicide occurred. In Jones v. State, 89 Ark. 213, 116 S.W. 230, the appellant was convicted of the crime of assault with intent to kill. The evidence was to the effect that the appellant chased the prosecuting witness with an ax threatening to kill him, but never did get in striking distance. In reversing the judgment, this court said:

There was no evidence to show that appellant at any time had the present ability to injure Carter in the manner alleged in the indictment. It is argued that appellant might have thrown an ax at Carter and have injured him with it in that manner. But the proof does not show that appellant made any effort to injure the prosecuting witness by throwing the ax at him. Even if an injury could have been inflicted in that manner, it was not attempted. Appellant must be convicted, if at all, upon the attempt he actually made, and not upon what he might have'done had he made the attempt. So the evidence is not sufficient to sustain the verdict, and the court should have set it aside for that reason.

In the case styled Slim and Shorty v. State, 123 Ark. 583, 186 S.W. 308, peace officers were advised of a train robbery and attempted to arrest the appellants who had alighted from the train. Upon approaching the appellants the officers said to them: “Boys, we want you; put up your hands.” (The appellants refused to give their names and were referred to as Slim and Shorty). The evidence was to the effect that both appellants were armed when apprehended and that they “started for their guns” when the officers accosted them. Slim’s gun hung in its holster and Deputy Sheriff Pierce told another deputy to watch Slim, Pierce then told Shorty not to pull his gun. Shorty, nevertheless, pulled his gun and pointed the gun at the face of Deputy Finley. Finley and Pierce fired about the same time and Shorty fell. Pierce then immediately looked at Slim and Slim’s hands were going up and his gun fell out in front of him. Both appellants were indicted for the crime of assault with intent to kill and also jointly indicted for the crime of resisting an officer. They both were convicted on the charge of resisting an officer and Shorty was convicted of assault with intent to kill. In reversing Shorty’s conviction for assault with intent to kill, this court said:

There was testimony tending to show that when the officers approached the appellants the driver ran the motor car up within a few feet of them and the officers jumped out with their guns presented towards the appellants before anything was said by the officers. A majority of the court is of the opinion that the testimony is not legally sufficient to sustain a conviction of appellant Shorty for the crime of assault with intent to kill, and that the court erred in not granting his motion for a new trial as to this offense.

In the Kentucky case of Warren v. Commonwealth, 333 S.W. 2d 766, the appellant Warren, Everett Perry, and three other men, were jointly indicted for the murder of Woodrow Smith. Smith operated a small coal mine and the appellant and Perry were members of a local union which was on strike. The homicide grew out of an effort on the part of the appellant Warren, Perry, and other union members to force Smith and his employees to join the union and participate in the strike. Warren and Perry and other members of the union armed themselves and converged on Smith’s coal mine. As they approached the mine, Perry dropped out of the group and suggested to Warren that he do likewise but Warren insisted on going on. Smith, in an attempt to elude the group, passed by where Warren and Perry were standing and Perry warned Smith that the group was going to kill him. Smith threw his own pistol to the ground and Warren retrieved it. Perry asked for the pistol and Warren refused to surrender it but put it in his pocket and walked off. Perry walked to where Smith had stopped and advised him that they had come up to talk with him about joining the union. At this point other shooting started. Perry saw Smith fall over and saw Warren standing about six feet away with a gun in his hand. He called Warren a.“damn fool” and Warren walked away. The question on appeal was whether the court erred in not giving an instruction that if the jury believed Perry was an accomplice of the defendant, Warren could not be convicted without corroborative evidence, and in affirming the judgment the court said:

Perry certainly started out with the mass movement of the striking miners. But it is clear from his undenied testimony that when violence developed, he not only refused to participate in the intimidation of Smith, but sought to prevent Warren from harming him. The familiar definition of an accomplice is one who participates in the commission of a crime, whether as a principal aider and abettor or accessory before the fact. The usual test is whether or not the witness could be convicted of the crime with which the accused is charged. Soloman v. Commonwealth, 208 Ky. 184, 270 S.W. 780. Mountjoy v. Commonwealth, 262 Ky. 426, 90 S.W. 2d 362. Mere association with the accused or mere presence at the time of the commission of the offense does not make one an accomplice. Head v. Commonwealth, Ky., 310 S.W. 2d 285.

In the Oregon case of State v. Walters, 209 P. 349, two soldiers, Walters and Tillman, while A.W.O.L., committed several robberies in Portland. Policemen Palmer and Thorpe intercepted Walters and Tillman on a street corner and quoting from the opinion the following occurred:

When the officers met the soldiers at the corner, Thorpe said: “Boys, just a minute; I want to see you.” Tillman “stopped right there,” but Walters “walked right on — stepped off the curb.” Palmer gave his attention to Walters, and Thorpe gave his attention to Tillman. Thorpe ordered Tillman to take his hands out of his pockets, and Tillman “had just started to pull his hands out of his pockets when Walters shot Palmer.” Thorpe immediately took his “gun off of” Tillman and shot at Walters, and it is probable that this was the shot which wounded Walters in the shoulder.

Walters proceeded about 14 feet after he and Tillman were accosted by Thorpe, and Walters was only 5 or 6 feet from Palmer when he shot Palmer.

Tillman testified for the state at Walters’ trial and testified as to the robberies prior to the homicide. It appears that the statutes of Oregon contain a subdivision in § 868 “that the testimony of an accomplice ought to be viewed with distrust,” and the appellant assigned error in the trial court’s failure to give an instruction to that effect. In disposing of this contention the Supreme Court of Oregon said:

Tillman was an accomplice in the commission of the three robberies; but the record does not disclose a word of evidence having the slightest tendency to show that he participated in or was connected with the homicide. Tillman was not an accomplice in the killing of Palmer, and therefore the trial judge properly omitted to instruct the jury about viewing the testimony of an accomplice with distrust.

We conclude that the same situation exists in the case at bar. There is no evidence whatever, either circumstantial or otherwise, that Lisenby entertained any malice aforethought, or any intent to murder, or kill anyone, and there is no evidence that he counseled, aided or abetted in firing the shots toward him and the officers. There is not even any evidence that Lisenby participated in the burglary. It is true he was participating in retrieving the stolen merchandise when accosted by the officers, but he had submitted to arrest and his former companions had made good their escape when the shots were fired. Whether the shots were fired at Lisenby, the two officers, or at all three, is not in evidence. It would require the highest degree of speculation to say they were fired at the officers to effect Lisenby’s release, or fired at Lisenby to silence him. It would also be pure conjecture and speculation to say the shots were fired as a probable and natural consequence of burglary under the evidence of record in this case.

The judgment is reversed and the cause dismissed.

Harris, C.J., concurs in part, dissents in part. Fogleman, J., dissents.