{
  "id": 1724139,
  "name": "Theodore Fair v. State",
  "name_abbreviation": "Fair v. State",
  "decision_date": "1967-01-23",
  "docket_number": "5242",
  "first_page": "819",
  "last_page": "821",
  "citations": [
    {
      "type": "official",
      "cite": "241 Ark. 819"
    },
    {
      "type": "parallel",
      "cite": "410 S.W.2d 604"
    }
  ],
  "court": {
    "name_abbreviation": "Ark.",
    "id": 8808,
    "name": "Arkansas Supreme Court"
  },
  "jurisdiction": {
    "id": 34,
    "name_long": "Arkansas",
    "name": "Ark."
  },
  "cites_to": [
    {
      "cite": "239 Ark. 228",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1730864
      ],
      "weight": 2,
      "year": 1965,
      "opinion_index": 0,
      "case_paths": [
        "/ark/239/0228-01"
      ]
    },
    {
      "cite": "200 S. W. 982",
      "category": "reporters:state_regional",
      "reporter": "S.W.",
      "year": 1918,
      "opinion_index": 0
    },
    {
      "cite": "132 Ark. 128",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1576723
      ],
      "year": 1918,
      "opinion_index": 0,
      "case_paths": [
        "/ark/132/0128-01"
      ]
    }
  ],
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  "last_updated": "2023-07-14T14:36:03.113111+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Theodore Fair v. State"
    ],
    "opinions": [
      {
        "text": "George Rose Smith, Justice.\nIn the court below a jury found the appellant guilty of assault with intent to kill and fixed his punishment at five years imprisonment. Here the appellant questions the sufficiency of the evidence and the trial court\u2019s ruling upon a point of evidence.\nThe proof is sufficient to support the verdict. On the day of the offense the appellant, who was traveling on foot in Little Rock, engaged in what should have been a trivial dispute with a motorist about which one should precede) the other in crossing an intersection, each insisting that the other should go first. John Haydon, the motorist, finally drove past Fair and heard him use the words, \u201cBlow your head off.\u201d Haydon stopped at a friend\u2019s house only two doors from the intersection. A neighbor crossed the street to tell Haydon that Fair had a gun. Haydon informed the police of the incident.\nOfficer Bridges responded to Haydon\u2019s call and found the accused about two blocks down the street. When the officer approached Fair and attempted to question him, Fair unbuckled the holster of his pistol, started to draw the weapon, and said, \u201cI\u2019m going to blow your head off.\u201d Officer Bridges, after a struggle, succeeded in wresting the gun away from Fair. Bridges placed Fair under arrest and took him to police headquarters, where Fair tried to seize another officer\u2019s pistol, saying that he was going to get another gun and do a better job of it.\nWith respect to the sufficiency of the evidence the case is controlled by our holding in Johnson v. State, 132 Ark. 128, 200 S. W. 982 (1918). There, upon facts similar to this appellant\u2019s encounter with Officer Bridges, we held that the act of drawing a pistol, if accompanied by a threat to use it, constitutes an assault with intent to kill. The turning point, we said, is whether the overt act is merely in preparation for an assault or is actually part of an assault. In the case at bar the jury were justified by the testimony in finding that Fair\u2019s attempt to draw his pisol, together with his threatening language, constituted an assault with intent to kill Officer Bridges.\nThe challenged ruling upon a point of evidence occurred during the State\u2019s cross examination of Fair\u2019s sister. The deputy prosecuting attorney asked this witness where Fair had been in 1947. The witness answered, \u201cHe was in the state penitentiary in 1947, I believe.\u201d Defense counsel objected. The court sustained the objection and admonished the jury to disregard the witness\u2019s statement. It is now insisted that a mistrial should have been declared.\nWe do not approve such tactics on the part of the prosecution. Fair\u2019s earlier confinement was wholly inadmissible and should not have been mentioned in the presence of the jury. Nevethheless the trial judge did not commit an error, for he sustained the objection to the statement and instructed the jury not to consider it. Counsel for the accused was apparently satisfied with the court\u2019s ruling, for he did not press the matter by asking for a mistrial. In the circumstances the point now asserted was not preserved for review on appeal. Stockton v. State, 239 Ark. 228, 388 S. W. 2d 382 (1965).\nAffirmed.",
        "type": "majority",
        "author": "George Rose Smith, Justice."
      }
    ],
    "attorneys": [
      "Jack, Holt Jr., for appellant.",
      "Bruce Bennett, Attorney General; Fletcher Jackson, Asst. Atty. Gen., for appellee."
    ],
    "corrections": "",
    "head_matter": "Theodore Fair v. State\n5242\n410 S. W. 2d 604\nOpinion delivered January 23, 1967\nJack, Holt Jr., for appellant.\nBruce Bennett, Attorney General; Fletcher Jackson, Asst. Atty. Gen., for appellee."
  },
  "file_name": "0819-01",
  "first_page_order": 841,
  "last_page_order": 843
}