{ "id": 1650369, "name": "Nunley v. State", "name_abbreviation": "Nunley v. State", "decision_date": "1954-06-14", "docket_number": "4774", "first_page": "838", "last_page": "841", "citations": [ { "type": "official", "cite": "223 Ark. 838" }, { "type": "parallel", "cite": "270 S.W.2d 904" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "265 S. W. 2d 542", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1650379 ], "opinion_index": 0, "case_paths": [ "/ark/223/0261-01" ] }, { "cite": "207 Ark. 672", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1481772 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/207/0672-01" ] }, { "cite": "170 S. W. 80", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "114 Ark. 393", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1536335 ], "opinion_index": 0, "case_paths": [ "/ark/114/0393-01" ] }, { "cite": "206 Ark. 726", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1485047 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/206/0726-01" ] }, { "cite": "202 Ark. 934", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1449937 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/202/0934-01" ] }, { "cite": "202 Ark. 927", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1449908 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/202/0927-01" ] } ], "analysis": { "cardinality": 416, "char_count": 5766, "ocr_confidence": 0.519, "pagerank": { "raw": 1.2893489922504738e-07, "percentile": 0.6194063823798222 }, "sha256": "4149655a9c22ce287d3dd078c11ec21ea3be02da1422716859ed47b560f166dc", "simhash": "1:5deccae36e745190", "word_count": 1048 }, "last_updated": "2023-07-14T21:02:33.600099+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Nunley v. State." ], "opinions": [ { "text": "J. S. Holt, J.\nGeorge Nunley, appellant, was found guilty by a jury September 17, 1953, of the crime of assault with intent to kill (\u00a7 41-606, Ark. Stats. 1947) and Ms punishment fixed at a term of five years in the State Penitentiary. From the judgment is this appeal.\nFor reversal, appellant first contends that the evidence was not sufficient to support the jury\u2019s verdict and that the trial court erred in refusing his request for a directed verdict at the close of all the testimony. We hold that there was ample evidence to sustain the jury\u2019s verdict and that the court correctly refused appellant\u2019s request for a directed verdict.\nOn May 7,1953, Nunley went to the home of his former wife\u2019s parents with full knowledge that she, after having been divorced from Nunley, had remarried and was then the wife of P. J. Ross. He had armed himself with a loaded automatic pistol, a deadly weapon. Ross was there at the time with his wife and had been .there about five minutes when he noticed Nunley standing on the sidewalk in front of the house. Ross said to his mother-in-law : \u2018\u2018 There is George, \u2019 \u2019 and she said: \u2018 \u2018 What does he want,\u201d and Ross answered: \u201cI don\u2019t know.\u201d Ross\u2019s mother-in-law then called to Nunley and asked him what he wanted, whereupon Nunley walked to the front porch and asked if P. J. (meaning Ross) and Eunice were married. She told him that they were, and he replied: \u201cThat is all I want to know.\u201d Ross then asked Nunley if he had been seeing Eunice since their divorce and Nunley told him to let Eunice answer the question, and she answered in the negative, whereupon Ross walked off the front steps and Nunley pulled a pistol and began firing at Ross. Six shots appear to have been fired, four taking effect. Ross was wounded in the left wrist, left arm and in the right and left hips. Some of the bullets entered from the rear.\nRoss\u2019s mother-in-law, an eye witness, testified: \u201cQ. After the first shot what did P. J. (Ross) do? A. He turned and started walking off. Q. Then what happened? A. George (Nunley) shot again. Q. Then what did he do again? A. After he shot all the shots out of the gun he turned and went on. Q. P. J. did? A. George did. Q. Was anything said by George or P. J.? A. You mean before that started? Q. No, after George got through shooting? A. After George left he said he was going, but he would be back. Q. That is this defendant? A. That is right. Q. Was it dark then? A. It was pretty dark, it was around eight o \u2019clock. Q. But you could recognize George and P. J. from-standing distance? A. Yes, sir, because they were not too far from me. Q. Do you know how many times George shot at P. J.? A. Imagine he shot at least five or six times. Q. Did he empty his gun? A. I am sure he did. Q. Did he click the gun after he emptied it? A. I am sure it was once or twice. . . . Q. Did you see P. J. Ross with any kind of weapon at the time? A. No, sir, I didn\u2019t see him with anything in his hand. \u2019 \u2019\nAppellant argues that intent to kill was lacking, admitted the shooting, hut claimed that it was done in self defense. This presented a fact question for the jury, which found him guilty of assault with intent to kill. The jury is the sole judge of the credibility of witnesses and the weight to be given to their testimony. Herron v. State, 202 Ark. 927, 154 S. W. 2d 351; Waterman v. State, 202 Ark. 934, 154 S. W. 2d 813.\n\u201cWhile the intent to kill cannot be implied as a matter of law, it may be inferred from facts and circumstances of the assault, such as the use of a deadly weapon in a manner indicating an intention to kill, or an act of violence which ordinarily would be calculated to produce death, or great bodily harm. In determining whether or not the intent to kill should be inferred, the trier of the facts may properly consider the character of the weapon employed and the way it was used, the manner of the assault and the violence attendant thereon; the nature, extent and location on the body of the wound inflicted, if any; the state of feeling existing between the parties at and anterior to the difficulty; statements of the defendant, if any; and all other facts and circumstances tending to'reveal defendant\u2019s state of mind. (Citing cases.) It is not essential that the intent should have existed for any particular length of time before the assault, as it may be conceived in a moment.\u201d Davis v. State, 206 Ark. 726, 177 S. W. 2d 190.\nHere Nunley\u2019s actions, from substantial testimony, warranted the jury\u2019s finding that he intended to kill Ross. Had he succeeded in killing Ross, the evidence would have warranted a conviction of murder.\nAs indicated, there was no error in the trial court\u2019s refusal to instruct the jury to direct a verdict since the evidence was ample to take the case to the jury. \u201cThe trial judge may direct a verdict only where the evidence raises no material question of fact for the jury\u2019s determination.\u201d Paxton v. State, 114 Ark. 393, 170 S. W. 80, and Ruffin v. State, 207 Ark. 672, 182 S. W. 2d 673. See also, Keese and Pilgreen v. State, ante page 261, 265 S. W. 2d 542.\nFinally, appellant contends that the court erred in refusing to sustain his objections to certain alleged leading questions propounded to witnesses, Euby Elder, Eunice Eoss and P. J. Eoss.\nThe record reflects that the trial court, in each instance, sustained appellant\u2019s objections and where the questions appeared to be leading required the prosecuting attorney to rephrase his questions. We hold, therefore, that this contention is without merit.\nAffirmed.", "type": "majority", "author": "J. S. Holt, J." } ], "attorneys": [ "J. Hugh Wharton, for appellant.", "Tom Gentry, Attorney General, Thorp Thomas, Assistant Attorney General, for appellee." ], "corrections": "", "head_matter": "Nunley v. State.\n4774\n270 S. W. 2d 904\nOpinion delivered June 14, 1954.\n[Rehearing denied October 4, 1954.]\nJ. Hugh Wharton, for appellant.\nTom Gentry, Attorney General, Thorp Thomas, Assistant Attorney General, for appellee." }, "file_name": "0838-01", "first_page_order": 860, "last_page_order": 863 }