Opinion
No. 33685.
October 2, 1939.
ASSAULT AND BATTERY.
Evidence indicating that defendant aimed pistol at another to compel the other to drop axe which he was carrying, though the other was not making any demonstration with the axe or making threats, but merely approaching in answer to defendant's call, and was still beyond striking distance, held to authorize conviction of assault.
APPEAL from the circuit court of Covington county; HON. EDGAR M. LANE, Judge.
R.L. Calhoun, of Collins, and D.A. McLeod, of Mt. Olive, for appellant.
The appellant contends that the court erred in not sustaining the motion of the appellant for a direct verdict on the close of all the testimony. The appellant further contends that after the verdict of the jury, wherein it found the appellant guilty of an assault, that the court erred in not sustaining the motion of the appellant to set aside the verdict of the jury on the grounds that the verdict was against the weight of testimony both for the state and the appellant as the court will notice the testimony of Dan Carter, the main prosecuting witness for the state and the aggrieved in this case, and the court will notice that this witness was the only witness who testified in the case that the appellant pointed the gun at him, and his testimony shows that the time that he testified the gun was pointed at him that he had an ax in his hand and was going towards the appellant with said ax in his hand and continued to do so after he had been told by the appellant several times to drop the ax, and taking this testimony as whole would calculate to lead the appellant to believe that the prosecutor, Dan Carter, was approaching him to do him some bodily harm with said ax, and if he did point the pistol, as claimed by Carter, it would be only in necessary self-defense, and taking Carter's testimony against the testimony of Mr. McDonald, testimony of Dozier Farmer, also a state witness, testimony of Mr. Norris, also a state witness, who did not testify on direct or on cross-examination that the appellant pointed the pistol at the prosecutor, Dan Carter.
Joe Carotti et al. v. State of Mississippi, 42 Miss. 334.
The appellant respectfully submits, taking all the testimony in this case with the interest and feeling and prejudice of the prosecutor, Dan Carter, that the verdict of the jury was wholly in conflict with the weight of testimony in this case and the appellant respectfully submits that the case should be reversed and the appellant discharged.
W.D. Conn, Jr., Assistant Attorney-General, for the State.
The verdict of the jury was returned on conflicting evidence and the verdict will stand.
Evans v. State, 159 Miss. 561, 132 So. 563.
The motion for new trial was properly overruled because the evidence relied on to sustain the verdict was not of such character as would justify the court in holding that it was unworthy of belief.
Thomas v. State, 129 Miss. 332, 92 So. 225; Hinton v. State, 175 Miss. 308, 166 So. 762; Stokes v. State, 172 Miss. 199, 159 So. 294.
Appellant, Allen Eaton, was convicted of an assault on a charge of an assault and battery with the intent to kill and murder one Dan Carter. Prior to the time of the offense, Eaton, a man about fifty years of age, eloped with and married the sixteen year old daughter of Dan Carter, the party alleged to be assaulted. Afterwards Dan Carter and his wife caused their daughter to return to their home, and mutual prosecutions were instituted between the appellant and Dan Carter, but these seem to have been adjusted. On and about the 3rd day of February, 1938, the appellant went to where Dan Carter was working on a W.P.A. road project, Carter being engaged in using an axe to trim off limbs of trees, when the appellant, accompanied by his son, a minor, drove up near where Carter and others were working and called to Carter to come to the car. According to State witnesses, Carter started toward the car carrying his axe along with him. As he approached the car, appellant told him to drop his axe, but Carter failed to do so, when the appellant raised a pistol and again told Carter to drop the axe, aiming the pistol at Carter, whereupon Carter dropped the axe and the appellant replaced the pistol either on his person or on the seat of the car. It does not appear from the evidence anywhere that Carter was making any demonstration with the axe or making any threats, but was merely approaching Eaton with his axe in his hand, in answer to Eaton's call to come there.
The trial court granted a peremptory instruction as to the felonious attempt to kill and murder, and submitted the question to the jury as to a simple assault, and the jury found the appellant guilty of assault, whereupon the circuit judge sentenced the appellant to six months in jail and a fine of $500 and suspended four months of the jail sentence, and $300 of the fine during good behavior.
It does not appear, therefore, that the pistol was aimed in self defense, or that Eaton was in any danger at the time he drew the pistol, all the evidence showing that Carter was not within striking distance or near enough to Eaton to do any harm with the axe at the time the pistol was drawn, nor was there anything in the evidence upon which the jury could rightfully infer that Carter intended to do any physical injury to the appellant.
The evidence was therefore sufficient to warrant the jury in finding the defendant guilty and the judgment will be affirmed.
Affirmed.