(Syllabus.)

Homicide — Evidence to Sustain Conviction for Assault with Intent to Kill. For evidence held sufficient to sustain conviction of appellant of crime of assault with intent to kill, see body of opinion.

Appeal from District Court, Atoka County; J.H. Linebaugh, Judge.

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Clyde Mobbs was convicted of assault with intent to kill, and he appeals. Affirmed.

C. McCasland, for plaintiff in error.

George F. Short, Atty. Gen., and N.W. Gore, Asst. Atty. Gen., for the State.

MATSON, P.J. This is an appeal from the district court of Atoka county, wherein on the 26th day of January, 1921, plaintiff in error, hereinafter referred to as defendant, was convicted of the crime of assault with intent to kill, and his punishment fixed at a term of seven years' imprisonment in the state penitentiary.

The only error assigned is the refusal of the trial court to direct the jury to return a verdict of not guilty based on the insufficiency of the evidence. The defendant introduced no evidence. The evidence on behalf of the state is substantially as follows: Defendant was charged and convicted of assaulting one C.A. Hunter with intent to kill him on the 22d day of September, 1920. This alleged assault occurred on a public highway in Atoka county on the afternoon of that day when the prosecuting witness C.A. Hunter, together with his son Charlie Hunter, were returning home from the city of Atoka, where they had taken two bales of cotton for the purpose of marketing. At the time of the alleged assault, C.A. Hunter was traveling in a farm wagon, and his son was traveling in another farm wagon immediately following him. Frank Mobbs and Clyde Mobbs, who were brothers, had stationed themselves at a point along such public highway near Rock Creek, and just a short time before the shooting a man by the name of Robinson passed along the highway and saw the Mobbs boys there, and Frank Mobbs in the presence of Clyde told Robinson that they were there for the purpose of killing Hunter. They also made inquiry of Robinson as to where Hunter was and how he was traveling, and Robinson told them

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that Hunter was traveling in a wagon by himself and that his son Charlie was also traveling in a wagon just behind.

As to what occurred when the Hunters reached the place where the Mobbs boys were in wait for them, we quote the following excerpts from the testimony of C.A. Hunter and of Charlie Hunter. C.A. Hunter details it as follows:

"Q. I will ask you to state whether or not you saw them on or about the 22d day of September, 1920? A. Yes, sir. Q. Where did you see them? A. I saw them right upon a bluff about a quarter the other side of Rock Creek. Q. Mr. Hunter, state whether or not anything unusual occurred at that time and place? A. Yes, sir; I had been to town with a bale of cotton. Come on Tuesday evening, and Wednesday went back home; about 3 o'clock in the evening got back there. I was standing in the wagon, with the sideboards on. I was — just as we got to the top of the hill, I could see Clyde Mobbs and Frank Mobbs on their horses, standing crossways of the road, I guess about 40 or 50 steps from us, and they come — I am not sure whether one of them was on the ground or not, but anyway they come running back pretty fast, on their horses, and just as I started to get on the level ground, we met them, Frank and Clyde Mobbs; told me to stop. Q. Explain to the court and jury what occurred there. A. Well, they said, `Stop there,' and I says: `What do you want me to do that for?' And he said: `You God damned son of a bitch, I say stop.' Q. Who was that talking? A. That was Frank Mobbs and Clyde Mobbs both jumped off their horses, and Clyde Mobbs had the Winchester in his hand, and Frank got some rocks, and said: `You God damned old son of a bitch —' Q. Tell what was said and done at that place? A. Frank Mobbs grabbed up two rocks. I was standing up in the wagon, I began to try to talk to them, and they were both talking, and Frank said: `You God damned old son of a bitch, I am going to kill you. If you got anything to say, say it.' And I kept trying to talk. And he said: `Shoot the God damned old son of a bitch.' And my boy jumped out of the back of the wagon, and grabbed some rocks, and said if he shot me he would knock his brains out. And Clyde pointed the gun at me, and Frank said: `Shoot the God damned old son of a bitch.' And I told them I was

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unarmed, just like any other man pleading for his life. And he said: `Shoot him, you God damned son of a bitch.' And Clyde said, `This fellow has got a rock drawn on me,' and Frank said, `Give me the gun.' And I took hold of the side bars and went off the side of the wagon. I fell on a pile of rock on the far side, and as I went down to the ground I grabbed a rock, and when they come around the team, Frank had the gun and throwed the gun up that way, and snapped, and he kept coming towards me, and I was trying to get to him and get hold of the gun, and he throwed another cartridge in the gun, and that fellow there throws a rock and hit me on the arm, just as he come around, and got about halfway of my mule, and after the gun failed to fire, and he throwed another cartridge in his gun, and he shot me right there, and shot me through the hand there, and I grabbed him, and Charlie and this boy was fighting with rocks. Clyde and I couldn't tell what was going on, and I held on to him until he jerked loose, and when he jerked loose, I knocked Frank down to his knees, and Charlie and this boy was fighting with rocks, and he jumped loose and shot me, and I knocked the gun off, and it shot me through the shoulder, and I hollered at my boy that he had shot me, and he whaled away with a rock and knocked him down, and he come up with the gun; and Charlie and this fellow was on the run when he come up with the rock in his hand, just like he was going to lamm me in the face, this arm fell down in my hand, and the gun didn't have any hammer on it, and I never used one before, and he picked the rock up and drawed it back, and I pulled the trigger, and he told me not to shoot any more; he was shot. And when Frank hollered he was shot, Clyde tore loose from Charlie and run away."

Charlie Hunter details it as follows:

"Q. In your own words tell the court and jury what happened. A. Me and my father had been to town with a bale of cotton apiece, and coming back, we met Clyde and Frank in the road just as we topped the hill from Rock Creek. Q. Tell how you were traveling? A. I was in a wagon behind my father, and he was in a wagon in front. Q. Go ahead. A. We seen Clyde and Frank on top of the hill, by their horses,

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and just as we topped the hill, they got on their horses and come on, riding, meeting us. They must have been about 100 yards from us when we first seen them. Q. All right, go ahead. A. And they just rode on down the road. And I was fixing to move a lot of plow tools, and Frank had my _____, and I thought I would ask Frank where my _____ was; and they rode up, and Frank said, `You God damned old son of a bitch,' just as they got even with my father, and, `You God damned old son of a bitch, I am going to kill you.' And Clyde had a gun. Q. What kind of a gun? A. Little 22 hammerless, pump target. Q. All right. A. They jumped down off their horses. When they jumped down off their horses, I got out of my wagon, and I went on the right-hand side, and they was on the right-hand side, and as I went around, I picked up two rocks, and Clyde had the gun lifted toward my father, and Frank said: `Shoot the God damned son of a bitch.' And I said: `Clyde, if you do, I will do my best to kill you with this rock.' And he would look at my father, and look at Frank, and Frank said: `Let me have it, and I will kill the God damned son of a bitch myself.' And I said: `You better go on and 'tend to your own business; I have not done anything to you to cause you any trouble like this.' So when I throwed the rock, I said, `Frank, I will kill you with this rock,' and he said — Q. Where was your father at that time? A. He was in the wagon. He said: `You damned little son of a bitch, I will kill you first; dead dogs don't get shed of no tails anyway.' And he throwed the gun on me, and Frank did, and Clyde was standing right in front of the team, and I told Frank, I said: `Frank, why do you want to shoot me if I have not done nothing to you for,' and I said, `We have been good friends, and what do you want to kill us for?' And he reached down and got a big rock, and it was big at one end, and smaller at the other, and threw this rock at me, and when he threw the rock at me, my father jumped out of the wagon, and Frank said: `You 'tend to that son of a bitch, and I will get the old man.' We had it round and round the wagon. Q. What were you doing? A. We was fighting and throwing rocks, and dodging and talking and swearing; just a free for all fight; and Frank shot my father, and Clyde run around the wagon and got around in front of

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the team, and about that time Pa said, `Charlie, I am shot.' About that time I knocked Frank down with a rock, and when I knocked Frank down with the rock, Clyde was coming around the team with two rocks in his hand. I run around to keep Clyde from getting my father. I clinched Clyde, and he had two rocks in his hand, and Clyde commenced trying to draw loose, and get away from me, and swearing, and I thought I had better turn Clyde loose, and I thought maybe — but I didn't know how bad my father was hurt. And Frank was getting up, and he said, `You God damned old son of a bitch, you have got my gun, but I will finish up with rocks,' and he raised and had a rock in his right hand, and Frank whirled, and pa shot him right there in the back. And Clyde run off down the road 40 or 50 steps."

And on cross-examination as follows:

"Q. Clyde Mobbs didn't fire any shots there, did he? A. No, sir. Q. He had the gun at the time they first — A. Yes, sir. Q. Frank Mobbs grabbed the gun out of his hand? A. He just handed the gun over to Frank; that was Frank said: `Give me the gun, I will kill the God damned old son of a bitch.' Q. Clyde could have fired the gun if he wanted to?

"Mr. Banta: We object, for the reason that it calls for a conclusion of the witness.

"The Court: Let him answer. A. Well, I don't know whether he could or not. I was standing there with that rock in my hand, and I didn't aim for him to. Q. If he had pulled the trigger, the gun would have fired? A. I don't know whether he would have to work it or what he would have had to done to fire. Q. Frank Mobbs did shoot your father? A. Yes, sir."

It is evident from the foregoing testimony that on the occasion of this alleged assault both Frank and Clyde Mobbs, this defendant, were waiting at a point on a public highway in Atoka county for the purpose of assaulting C.A. Hunter with intent to kill him. While perhaps Frank Mobbs displayed more determination to accomplish that purpose than

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did this defendant, it is nevertheless true that the defendant was with his brother Frank at the time; that he assisted him in stopping Hunter; that he cursed and abused Hunter; that he drew the gun on him, and while it is also true that he did not shoot the gun, he did hand the gun over to his brother Frank when Frank told him to give him the gun, and when he (Frank) had announced his purpose to kill Hunter with the gun; and it further appears that this defendant engaged the son of Hunter in combat while he knew that his brother Frank at the time was endeavoring to kill the old man Hunter by shooting him with the gun which he "Clyde" had handed over to him for that purpose. We think it clear, therefore, that this was a joint attempt on the part of both Frank Mobbs and Clyde Mobbs to assassinate C.A. Hunter, and that Clyde Mobbs aided and abetted his brother Frank in such attempted assassination, and that he did not abandon such attempt until notified by his brother Frank that he (Frank) had been shot.

It appears to be the theory of counsel for defendant that because he did not fire any shots at C.A. Hunter and failed to shoot at C.A. Hunter at the time he had the gun drawn upon him, he could not have been guilty of assaulting the said Hunter with intent to kill him, because there is no evidence that he had any such intent. On the contrary, this court is of the opinion that there is ample evidence in the record to sustain this verdict and judgment. While it is true that Clyde Mobbs did not fire any of the shots that wounded C.A. Hunter, his actions and conduct prior to the shooting clearly indicated an intention on his part to at least aid his brother Frank Mobbs to that end, and further the testimony on the part of the state shows that he committed acts sufficient to authorize his conviction as a principal offender upon the theory that he was at all times aiding and abetting his brother

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Frank Mobbs in the shooting and wounding of C.A. Hunter.

For reasons stated, it is the opinion of this court that the evidence is sufficient to sustain the conviction, and that the judgment should be affirmed.

The judgment of conviction is therefore affirmed.

DOYLE and BESSEY, JJ., concur.