Reversing.
Arnold Brashear has appealed from a judgment imposing upon him two years confinement in the penitentiary for injuring another.
The Facts. On Saturday night, October 3, 1936, a revival meeting was in progress at the Horse Creek Baptist Church and Esquire Jones, the justice of the peace in that district (No. 1 of Clay county), attended the meeting.
Arnold Brashear, Arthur Fisher, Homer Fisher, and Carlo Belt from the Little Goose Creek neighborhood were at the church, but not in it. They were on the outside, were in an angry mood, and were cursing and carrying on about some difficulty they or some of them had had with Lane Gibson's son and a man named Jarvis from the Horse Creek neighborhood, which difficulty they were apparently seeking to renew.
When the meeting broke up and the congregation came out of the church, the cursing and threats of the Little Goose Creek crowd became louder and more emphatic. Esquire Jones tried to quiet them without result, then he told them to consider themselves under arrest, to which they paid no attention and declared they would not be arrested unless "the others" were also arrested, and when asked who "the others" were, they refused to say. Then Esquire Jones directed Gilbert Curry and Mose Lewis to arrest them and they started to them, whereupon the members of the Little Goose Creek crowd, who had started up the road, gave such evidence of resistance that Esquire Jones recalled the men he had told to arrest them and told them to get their names and he would issue a warrant for them the next day.
Esquire Jones and those with him started down the road to their homes and had gone about 150 yards when they were overtaken and attacked by the Little Goose Creek crowd, who had turned back and pursued them. Homer Fisher attacked Gilbert Curry, Carlo Belt attacked Estill Webb, and Arthur Fisher and *Page 295 Arnold Brashear attacked Esquire Jones. A short and rather violent struggle ensued in which blows and hurts were given and received. Presently, Esquire Jones fell apparently dead and the Little Goose Creek crowd fled. Esquire Jones was put into a passing automobile and taken to a hospital where it was found he was suffering from concussion of the brain resulting from being struck in the back of the head by some sort of a blunt instrument, and from which he remained unconscious for several days. His upper lip had also been cut and the doctor had to sew it up.
The Little Goose Creek party lay out all night around a fire near a place called Sibert. The next morning Arnold Brashear was arrested. Arthur Fisher and Carlo Belt have never been apprehended and as to what has become of Homer Fisher we only know that the indictment was quashed as to him, and the charge against him referred to the county judge, probably meaning to the judge of the juvenile court. He did not testify in this case.
Grounds for Reversal. The demurrer to the indictment was properly overruled and the court did not err in overruling the appellants motion for a directed acquittal, but the court did err in its instruction No. 1 in fixing the limits within which the jury should fix the appellant's punishment; the proper limit is not less than one nor more than fifteen years. The court will also in his instruction No. 2 fix the limits of the punishment at not less than one and not more than five years at each of the two places in that instruction where the punishment is mentioned, and will insert the words "maliciously striking with a deadly weapon with intent to kill" just before the words "an offense" at each of the places where they occur in that instruction. There is no merit in the other criticisms of the instructions.
The judgment is reversed, and appellant is awarded a new trial.