text:
    Kenneth Ray BLANTON v. STATE of Arkansas
    5448
    458 S. W. 2d 373
    Opinion delivered October 12, 1970

      Victor Hlavinka, Richard S. Arnold and Morris S. Arnold, for appellant.

      Joe Purcell, Attorney General; Sam Gibson, Asst. Atty. Gen., for appellee.
   J. Fred Jones, Justice.

Kenneth Ray Blanton was convicted of first degree murder in the Miller County Circuit Court and was sentenced to life imprisonment. He has appealed to this court and has designated 18 points on which he relies for reversal. All of the points allege error in law, so we only state the facts necessary for consideration of the assigned errors in the order presented.

About 10 p.m. on Sunday, December 15, 1968, the nude body of Winn Smith was found by Sandy Carter and Don La Rue in the bathroom of his apartment in Texarkana, Arkansas. Smith’s bed was saturated with blood and a trail of blood led from Mr. Smith’s bedroom through a hallway to the bathroom where his body was found. Two teeth and fragments of a heavy bronze candleholder were found on the bedroom floor. A broken candleholder and a butcher knife were found in the bathtub and Mr. Smith’s automobile, his wrist watch and wallet were missing. His trousers, with the hip pockets turned inside out, were found on the living room floor. Mr. Smith’s body bore 17 stab wounds in addition to scalp and face lacerations. He was obviously the victim of a brutal murder. About midnight, December 16, 1968, the appellant, Kenneth Ray Blanton, was apprehended while asleep in Mr. Smith’s late model Chrysler automobile in a roadside park near Sierra Blanca, Texas. He was returned to Texarkana and put on trial under a plea of “not guilty.”

Appellant’s point I:

The trial court erred in denying defendant’s motion for payment of public funds to supply defendant with investigative, psychiatric, and other services necessary to his defense.”

Under this point the appellant argues in his brief as follows:

“The Supreme Court of the United States has not addressed directly the issue of auxiliary assistance on due process grounds, but the question has been considered by several lower federal courts. Each of them has concluded — we think erroneously — that the due-process clause does not require that such auxiliary assistance be provided by the state. Typical of these cases is United States ex rel. Smith v. Baldi, 192 F. 2d 540 (3d Cir.) (1951).”

The appellant insists that we should adopt the view expressed in the dissenting opinion in Baldi where, as stated by the appellant, the dissenting justice said:

“ ‘[A]s civilization progresses our ideas of fundamental fairness necessarily enlarge themselves . . . the requirements] of due process . . . would not be met by the appointment of a layman as counsel. The appointment of counsel for a deaf-mute would not constitute due process of law unless an interpreter also was available. Nor, in our opinion, would the appointment of counsel learned in the law fulfill the requirement of due process if that counsel required the assistance of a psychiatrist in order to prepare an insane client’s defense.’ ”

We conclude that the opinions of the federal courts as expressed by the majority in U. S. v. Baldi, supra, are correct. It may be true that “as civilization progresses our ideas of fundamental fairness, necessarily enlarge themselves,” but civilization has not progressed to the point where only insane persons commit murders. When civilization does arrive at that point, perhaps the presumption of insanity will attend the commission of crime and the state will owe a duty to one charged with murder, to prove him innocent by reason of insanity rather than guilty beyond a reasonable doubt. At the present stage of civilization, and under the laws of this state, one charged with the commission of crime is presumed innocent until proven guilty; and the state bears the burden of proving the defendant guilty beyond a reasonable doubt with the defense of insanity available to the defendant. The state has always had the burden of proving the defendant guilty and has never had the duty nor the authority of proving the defendant innocent by reason of insanity. The majority opinion in U. S. v. Baldi, supra, went on to say:

“Due process does not go so far as to require a hearing on mental condition in any particular manner or at any particular stage in the proceedings. Certainly it does not require a hearing in limine on the question as counsel for relator contend. The most that it requires, in our view, is an opportunity to have adequate hearing on the question before guilt is finally determined.
7P
Furthermore, we have great difficulty in accepting as a proposition of constitutional law that one accused of crime is entitled to receive at public expense all the collateral assistance needed to make his defense. . .”

Consequently we feel constrained to follow the majority opinions of the federal courts as announced in U. S. v. Baldi, supra, and our own majority opinions. In Green v. State, 222 Ark. 308, 259 S. W. 2d 142, the defendant was committed to the State Hospital and found insane. The court then appointed a panel of doctors who found him sane. He was tried and convicted and we reversed, holding that the court was without authority to appoint such panel. See also Hale v. State, 246 Ark. 989, 440 S. W. 2d 550. The appellant did not plead insanity as a defense in the case at bar; had he done so, or had he indicated an intent to do so, psychiatric examinations would have been available without expense to him under §§ 43-1301 — 43-1312, supra.

Appellant’s point II:

“The trial court erred in denying defendant’s motion for a confidential psychiatric examination to be administered by the Arkansas State Hospital.”

This assignment of error is also answered in Hale v. State, supra, and we find no merit in appellant’s contentions under this point.

Appellant’s point III:

“The trial court erred in denying defendant’s motion to dismiss the prosecution on the grounds that it was not initiated by a grand jury indictment.”

Appellant’s contention under this point was laid to rest in the 1937 case of Penton v. State, 194 Ark. 503, 109 S. W. 2d 131, and the numerous cases that followed. See Washington v. State, 213 Ark. 218, 210 S. W. 2d 307, and the cases there cited. We find no merit in appellant’s point III;

Appellant’s point IV:

“The trial court erred in overruling defendant’s motion to quash the jury panel for racial discrimination practiced in its selection.”

Under this assignment the appellant argues that the jury commissioners practiced racial discrimination in selecting the jury panel by systematically excluding Negroes therefrom. The appellant is a white man. In the case of Woodruff v. Breazeale, 291 F. Supp. 130 (1967), the issue was whether the petitioner (a white man) could claim the systematic exclusion of Negroes from the jury lists, and from the grand and petit juries of Calhoun County, Mississippi, where he was indicted and tried, as a violation of his rights under the 14th Amendment. The court in that case quoting from the decision in Fay v. New York, 332 U. S. 261, said:

“This Court however, has never entertained a defendant’s objections to exclusions from the jury exce'pt when he was a member of the excluded class.”

This decision was affirmed by the Fifth Circuit Court of Appeals in 401 F. 2d 997. We reached the same results in Haraway v. State, 203 Ark. 912, 159 S. W. 2d 733, where a Negro alleged prejudicial error because all white persons were purposely excluded from the jury that indicted him. We find no merit in appellant’s point IV.

Appellant’s point V:

“The trial court erred in denying defendant’s motion that jury commissioners be instructed to make their selection of veniremen upon a random selection basis.”

We find no merit in this assignment. The court instructed the commissioners to select the prospective jurors from all walks of life, from both sexes, from all races and from all parts of the community with regard only to the statutory qualifications of jurors. They were instructed to practice no discrimination in making their selections.

Appellant’s point VI:

“The trial court erred in denying defendant’s mo-lion for a continuance so as to allow defendant to investigate the nature and make-up of the jury panel to determine its economic class composition.”

This assignment is likewise without merit. In the case of Figeroa v. State, 244 Ark. 457, 425 S. W. 2d 516, we said:

“Whether a case should be continued or not is generally a matter resting within the sound discretion of the trial court, and unless it clearly appears that the refusal to grant a continuance is an abuse of discretion so as to operate as a denial of justice, the trial court’s action does not constitute a ground for a new trial. Allison v. State, 74 Ark. 444, 86 S. W. 409; Smith v. State, 219 Ark. 829, 245 S. W. 2d 226. Absent a showing by the moving party that he has exercised due diligence, the trial court will not be held to have abused its discretion in refusing to grant the motion. Bullard v. State, 159 Ark. 435, 252 S. W. 584; Bowman v. State, 213 Ark. 407, 210 S. W. 2d 798; Gerlach v. State, 217 Ark. 102, 229 S. W. 2d 37.”

We hold that the trial court did not abuse its discretion in the case at bar.

Appellant’s points VII and VIII are as follows:

“VII. The special trial judge erred in overruling defendant’s motion to disqualify the jury commissioners on the grounds that racial discrimination was practiced in their selection.
VIII. The special trial judge erred in excluding testimony by the trial judge relative to possible discrimination practiced by him in selecting jury commissioners for other counties within his circuit.”

These points are so closely related to each other and they both are so closely related to point IV, we consider our discussion under point IV sufficiently disposes of the errors alleged under points VII and VIII, and that these points are without merit.

Appellant’s point IX:

“The trial court erred in denying defendant’s motion for mistrial based on prosecutor’s remarks in closing argument alluding to the fact that defendant remained silent until trial.”

The remarks complained of under this assignment are abstracted by the appellant as follows:

“It was admitted by him that he needed money. In fact, he has admitted the State’s whole case with the prime exception of what happened in that apartment. Why has the defendant not told anyone about how it happened before? His explanation has come too late.”

The appellant testified in his own defense at the trial and the remark complained of was not directed at the appellant’s failure to testify at this trial, but was directed at his silence during the preliminary investigation. The court instructed the jury as follows:

“I will instruct the jury. Mrs. Mitchell and Gentlemen of the jury, I instruct you that the defendant, Kenneth Ray Blanton in this case, and any defendant in any criminal, case, while it is being investigated, has a right under the 5 th Amendment to the United States Constitution, and a right under the Arkansas State Constitution, to remain silent; that is, not to make any statements whatsoever, and you may not draw any inferences from this defendant’s failure to make any statement, or exculpatory remark. You will decide this case strictly upon the evidence produced before you in this court, and the law as contained in the charge, and will draw no inferences or presumptions of guilt from the fact, if it is a fact, that the defendant remained silent.”

We agree with the appellee that the trial court judge in his role of supervising the conduct of criminal trials before him, has wide discretion in determining the propriety of counsel’s argument. Adams v. State, 176 Ark. 916, 5 S. W. 2d 946. A wide range of discretion is allowed circuit judges in dealing with the arguments of counsel before the jury, since the presiding judge can best determine the effect of unwarranted arguments at the time the, argument is made. We also agree with the appellee that the trial court delivered to the jury immediately a careful and complete admonition to consider only the evidence properly admitted at the trial and we find no abuse of discretion under this assignment.

Appellant’s point X:

“The trial court erred in overruling defendant’s objection to the admission of fingerprint and palmprint specimens taken from defendant without his being fully warned of his constitutional rights and appraised of his right to remain silent and refuse to provide such specimens.”

We agree with the appellee that appellant’s assignment of error under this point has been decided adversely to the appellant’s contention in Shannon v. State, 207 Ark. 658, 182 S. W. 2d 384, and the cases there cited. We still adhere to our holding in that case.

Appellant’s point XI:

“The trial court erred in denying defendant’s motion for new trial on the ground of newly discovered evidence.”

Officer Gachot, of the Little Rock Police Department, testified for the state that the appellant was known as “Junior” to the vice squad in Little Rock, and that he and another vice squad officer had occasion to stop an automobile in which the appellant was a passenger on June 8; that the appellant stated on that occasion that he was a homosexual. The newly discovered evidence proffered by the appellant in support of his motion for a new trial, was the testimony of a Mrs. Clark Robinson of Dallas who would testify that the appellant worked at her Waffle House in Dallas 61 hours during the week ending June 9, 1968. In the recent case of Gross v. State, 242 Ark. 142, 412 S. W. 2d 279, we said:

“Newly discovered evidence is one of the least favored grounds of a motion for new trial. . . Such a motion is addressed to the sound legal discretion of the trial judge and an appellate court will interfere only in case of an apparent abuse of discretion or injustice to the movant. . . He must show clearly that the evidence has been discovered since the trial. . . Such a motion is also properly overruled if the applicant therefor does not state acts on his part which constitute reasonable diligence to discover the evidence before trial.”

In Steel v. State, 246 Ark. 75, 436 S. W. 2d 800, an amended motion for a new trial asserted that new evidence had been discovered that would impeach the evidence of a witness for the state. In sustaining the trial court’s denial of the motion for new trial, we said:

“. . . [W]e are not persuaded that the trial court abused its discretion, and this feeling is strengthened by the fact that no request for a continuance was made when Dinger was called to testify.”

Mrs. Robinson’s testimony would have only gone to the impeachment of Officer Gachot’s testimony, and in a number of cases we have held that the new discovery of such evidence is not grounds for a new trial. Foster v. State, 45 Ark. 328; Edgeman v. State, 183 Ark. 17, 34 S. W. 2d 753; Therman v. State, 205 Ark. 376, 168 S. W. 2d 833; Philyaw v. State, 224 Ark. 859, 277 S. W. 2d 484; Cooper v. State, 246 Ark. 368, 438 S. W. 2d 681.

Appellant’s point XII:

“The court erred in overruling defendant’s objections to alleged oral admissions.”

We find no merit in this assignment. The evidence indicates that neither Officer Newman of the Texas Highway Patrol, nor Justice of the Peace Rose, solicited or attempted to solicit incriminating information from the appellant. The evidence is to the effect that after the appellant was fully warned of his constitutional rights, he voluntarily attempted to explain his possession of the Chrysler automobile, the wallet and the wrist watch, none of which belonged to him. He made no statements, nor were any statements solicited from him in Texas concerning the charge on which he was tried. The statements he did make were voluntarily made and the trial court so found at a thorough evi-dentiary hearing. Furthermore, the appellant reiterated and explained from the witness stand all the statements he made prior to his trial.

Appellant’s point XIII:

“The trial court erred in denying defendant’s mo-don to exclude all evidence obtained as a result of Statements illegally elicited from defendant.”

Our opinion as to point XII also applies to point XIII with the exception that during his interrogation in Texarkana, the appellant specifically availed himself of his right to remain silent on any matter pertaining to the theft of the automobile, as well as to the murder of Smith for which he was tried. We are of the opinion that the trial court did not err in holding that the admissions the appellant did make to the officers pertaining to his idendty, residence and activity while in Texarkana were freely and voluntarily made.

Appellant’s point XIV:

“The trial court’s instruction to the jury relative to circumstantial evidence was erroneous.”

The instruction complained of was as follows:

“In cases where circumstantial evidence is relied upon, it is necessary in order to convict, not only that the circumstances should point to and be consistent with the defendant’s guilt, but also that they should be inconsistent with any other reasonable hypothesis. This does not mean any more than this: That all the facts and circumstances in the whole case be taken together; if they should convince you of his guilt beyond a reasonable doubt, they are sufficient to convict; if they do not, they are not sufficient to convict.”

The appellant objected to this instruction and offered the following which was denied:

“You are instructed that where the State relies entirely on circumstantial evidence, it is necessary in order to convict not only that such chain of circumstances should point to, and be consistent with the defendant’s guilt, but that the chain of circumstances should be inconsistent with any other reasonable hypothesis.” (Emphasis supplied).

The appellant contends that the court should have pointed out in the instruction that the evidence was “entirely” circumstantial. We do not agree. Such instruction might well have been interpreted as a comment on the evidence. The instruction as given was correct especially in light of the additional instructions on the burden of proof and reasonable doubt. Trammell v. State, 193 Ark. 21, 97 S. W. 2d 902.

Appellant’s point XV:

The court erred in instructing the jury on felony murder.”

We find no merit in this assignment; The appellant was in possession of the decedent’s automobile, wallet and wrist watch when apprehended. He testified from the witness stand that Smith had given him the keys to the automobile for temporary use; that he used the automobile for about an hour while Smith was talking to Sandy Carter on the telephone, and that when he returned to Smith’s apartment, he found Smith dead in the bathroom. He testified that he examined Smith’s body and upon determining that. he was dead, he took Smith’s trousers from the bedroom closet door, searched the pockets and took some change; that he took Smith’s watch from a nightstand, threw the trousers on the living room floor, wiped the blood from his hands on a wash towel he found in the bathroom, and after throwing the wash towel on the living room floor, he left for Texas in Smith’s automobile. He testified that he searched the automobile for money in New Boston, Texas and found Smith’s wallet in the locked glove compartment. As a matter of fact, except for the vicious nature of the homicide, robbery would appear the most likely, if not the only motive.

We might comment here that Sandy Carter testified that he was a homosexual and that he had engaged in homosexual practices with Smith. The appellant testified that Smith picked him up on a street; that he resisted homosexual advances made by Smith; that he accepted Smith’s offer to share Smith’s apartment, and that he had gone in Smith’s automobile to get his clothes from his own apartment when Smith’s murder occurred. Throughout the trial the evidence, on behalf of the appellant, was slanted toward a theory of so-called “homosexual homicide,” with Sandy Carter as the most likely perpetrator of the crime. Evidence as to the vicious nature of the attack was the only evidence pointing to such a motive. The decedent was an extra large man, who wore size 14 shoes, and was well over six feet tall. Heavy bronze candelholders and a butcher knife were the apparent murder weapons. The decedent’s bedcovers were turned down in a triangle from the pillow only on the front side of the bed, and the exposed bedsheet at this point was soaked in blood. The blood led from the bed down a hall and into the bathroom where the evidence indicates that the decedent finally fell and his body was found. Candles and metal fragments from the candleholders accompanied the trail of blood. The bathroom walls and fixtures were splattered with blood and remnants of the broken candleholders were found in the bedroom, as well as with the butcher knife in the bathtub. A number of the 17 stab wounds were in the decedent’s upper left chest. Such evidence would justify a conclusion that a murder, perhaps more difficult than the perpetrator had anticipated, which began by wielding a candleholder or knife while the decedent lay on his bed in the bedroom, and ending with knife thrusts to the most vital areas of his semiconscious body in the bathroom where he had finally retreated, was more consistent with the theory of robbery by a casual acquaintance or a stranger than by a close associate obsessed with homosexual jealousy. We conclude that the instrucdon was entirely proper.

Appellant’s point XVI:

“The trial court erred in excluding certain testimony from the witness Don La Rue.”

The decedent was last seen alive on Saturday night when he left Don La Rue’s home about 10 o’clock. Sandy Carter was a business partner of Smith and was also at La Rue’s home when Smith was there. Smith, Carter and La Rue tentatively planned to go to Ash-down on a business trip the following day, Sunday afternoon. Carter testified that he attempted to contact Smith by phone several times on Sunday morning without success, and finally about 1 p.m. he wrote a note to Smith requesting Smith to get in touch with him. He testified that he went by Smith’s apartment and after noticing Smith’s automobile missing from its usual parking place, he entered the living room of the apartment and left the note on a small stool in the living room. When first interviewed by the police officers, Carter admitted going by the apartment but denied that he entered it. Later he admitted entering the apartment and leaving the note on the stool in the living room. He testified that he carried a key to Smith’s apartment and that after leaving the note, he then stopped by some friends’ apartment on the ground floor of the same building and drank a beer with them before leaving the building. He denied noticing anything amiss in the apartment when he left the note.

When Smith failed to contact either Carter or La Rue on Sunday afternoon, they went to his apartment about 10 p.m. to check on him and they discovered his body. Mr. La Rue testified that when he and Carter entered the living room, he noticed a small washcloth on the living room floor with spots of blood on it; that he then noticed a pair of trousers on the floor and a spot of blood on the doorfacing leading from the living room into the hall towards the bath and bedroom; that he then noticed some small fragments of metal as well as a candle on the living room floor which he later determined had come from heavy bronze candle-holders which had originally set on a credenza in the living room.

The assignment of error under point XVI had to do with two questions put to Mr. La Rue as follows:

“Q. Isn’t it unlikely that a person entering the apartment by the front door, and walking to the stool, which path would carry him across the doorway, so to speak, from the living room into the hallway, could have failed to see something amiss or untoward, a body in the bathroom?
* # #
Q. Isn’t it unlikely that a person entering by the front door and going to the stool could have missed seeing the washcloth, if he had gone directly between those two points?”

These questions were objected to for the reason that they called for a conclusion and the objections were sustained. The appellant argues that La Rue was competent to testify as to what could or could not be seen from a certain part of the apartment. The trial court agreed with the appellant’s argument on this point and so do we, but the questions were not framed in conformity with the argument or with the offer of proof. Under offer of proof on this point, the questions, answers, and the court’s ruling thereon appear as follows:

“Q. Mr. La Rue, standing in the living room at the point where the washcloth, or towel, was located on the diagram there, could a person see fairly well into the bathroom?
A. Yes, sir, well enough to discern objects.
Q. All right, sir, and towel that is shown on the diagram as being in the living room, is that object obvious?
A. It would be obvious to me.
MR. R. S. ARNOLD: That’s all, Your Honor.
THE COURT: Well, those questions and answers are perfecdy proper.”

It was called to the court’s attention, and the appellant’s counsel agreed, that the questions propounded were not couched in the same language as in the offer of proof. The difference is - obvious as above set out and we agree with the state and with the trial court that the above questions put to La Rue called for a conclusion and were incompetent.

Appellant’s point XVII:

“The trial court erred in denying the defendant’s motion for a change of venue.”

Mr. Bernard Landrum, an insurance adjuster employed to assist in the defense investigation, testified that he had talked with hundreds of people attempting to get them to sign a petition and affidavits for change of venue, and that Dale Foster was the only one he could get to sign the petition. Mr. Landrum was asked the following question and gave the following answer:

“Q. Did you in the course of your work in this regard come into contact with any persons who were of the opinion, that the defendant could not receive a fair trial in the county, but who were still unwilling to sign the affidavit?
A. Well, I had it put to me this way: ‘I don’t know whether he is guilty or not, and possibly he isn’t, but I still will not sign.’ ”

On cross-examination Mr. Landrum testified:

“Q. Is it not true that the majority of the people you talked to just didn’t want to get involved on either side of the case?
A. This is, I would say, a big part of it, that many people did not want to become involved.”

Mr. Perry Dale Foster testified that in his own opinion the appellant could not receive a fair trial because of the prominence of the decedent’s family. He testified that he does not know the attitude of other citizens of Miller County, but only attempted to express his personal feelings in his affidavit. Nine witnesses testified for the state to the effect that the appellant could obtain a fair trial in Miller County and we are of the opinion that the trial court did not abuse its discretion in denying the motion. See cases cited in footnotes, to Ark. Stat. Ann. § 43-1502 (Repl. 1964) under “Credible Persons — Basis of Opinion” and “Discretion of Court.”

Appellant’s point XVIII:

“The trial court erred in overruling defendant’s motion for continuance upon discovery by his counsel, on the morning of trial, that the state was in possession of a bloody palm print identified as belonging to defendant.”

In his argument on this point the appellant states:

“Defense counsel anticipated, correctly as it turned out, that the bloody palm print would be a crucial item of evidence in the case against the defendant. They immediately moved for a continuance on the ground that had such evidence been known to the defense it would have been necessary to consider seriously the defense of insanity, and the question of whether defendant should be sent to the State Hospital for examination. The untimely revelation of the palm print evidence was a complete surprise to defendant and his counsel.”

The record does not sustain the appellant in this argument. This assignment of error has to do with the state’s exhibit No. 36 which was a palm print, lifted from the bathtub in the decedent’s apartment, with flecks of blood appearing in the print itself. Detective Weir first testified that the prints were lifted under his supervision and directions, but objections were sustained to Detective Weir’s testimony for the reason that the prints had not remained in his possession and he was unable to positively identify the print offered in evidence as being the same one lifted at the scene of the crime.

Officer Giles was then called as a witness and he testified as follows:

“Q. Mr. Giles, did you assist in removing any other prints?
A. Fingerprints?
Q. Yes, or palm prints.
A. A .palm print.
Q. Where was this palm print that you assisted in lifting?
A. The palm print was in the. bathroom on the bathtub, on the corner of the bathtub.
Q. What was the condition of it?
A. It was made in blood.
Q. I show you this lift and ask you. if you can identify it?
*-UW TP
A. I can.
Q. Is that the same lift and palm print that was lifted there in your presence?
A. It was.
# * *
Q. Is there anything else that you noticed about that palm print other than the identification characteristics?
A. Are you talking about the specks of blood on it?
Q. Yes, sir.
A. There were specks of blood that was lifted with the lift when the palm print was lifted off the tub.”

After the motion was argued pro and con the de fendant’s counsel concluded as follows:

“Well, if your Honor please, we are not complaining that they didn’t show us the lifts. As a matter of fact, it is true, as counsel for the State says, that we were advised of the existence of the lifts and told that we could see them if we wished to. We did not wish to, because we did not think that fingerprint configurations would be meaningful to us. The part that we object to, and the part that was not revealed, was the business of the blood. We think there has not been a compliance with the order about the blood samples — and tests made of blood samples — a specific and independent portion of this court’s order.”

The court then ruled as follows:

“Counsel, as I understand the position of each party, the defense motion to bar the introduction of the lifts will be denied, and I understand the representation of the State that no blood samples or tests were made, and therefore none will be offered in evidence.
The motion for continuance will be denied.”

All of the witnesses who testified concerning palm and fingerprints found in Smith’s apartment, testified that they were made in blood. There was ample evidence that the palm print on the bathtub from which exhibit No. 36 was lifted was made in blood, and the mere fact that flecks of the blood were lifted with the print could in no wise prejudice the appellant. There was no evidence or contention that it was the appellant’s blood appearing on the palm print exhibit offered in evidence. The flecks of blood appearing on the lifted print had nothing whatever to do with identifying the appellant as the one who left the bloody palm print on the bathtub. The flecks of blood identified in the print lifted from the bathtub could only have gone to help identify the lifted palm print offered in evidence as being from the bloody palm print found on the bathtub.

The judgment is affirmed.


source: Caselaw Access Project

author: Conley Byrd, Justice.

license: Public Domain

text:
    Hoyte R. PYLE et al v. John B. WEBB
    5-5332
    458 S. W. 2d 418
    Opinion delivered October 12, 1970

      Warren & Bullion, for appellants.

      Gene Worsham, for appellee.
   Conley Byrd, Justice.

Appellee John B. Webb brought this action for mandamus against the Board of Trustees of the Teacher Retirement System arid Hoyte R. Pyle as Executive Director. The record here shows that appellee, effective July 1, 1964, while employed in the disability determination unit of Social Security Department, a federally funded state agency, became eligible arid began receiving retirement benefits under the Teachers Retirement Aict, Act 93 of 1957. By this action Mr. Webb asked the court to declare Act 624 of 1969, which prevents a retirant under the Teachers Retire-merit Acb from drawing teacher retirernent benefits while on the public payrolls, ineffective as to him, because his rights had already become vested! Appellants Hoyte R. Pyle, et al, appeal from an order granting the petition for mandamus and among other grounds for relief ask that the cause be dismissed for lack of jurisdiction. In Nethercutt v. Pulaski County Special School District, 248 Ark. 143, 450 S. W. 2d 777, we held that chancery courts were without jurisdiction to issue writs of mandamus. In that action incidental relief by way of a declaratory judgment was also asked. See also, Harber v. Rhodes, 248 Ark. 1188, 455 S. W. 2d 926 to the same effect. It follows that the present action for mandamus must be dismissed without prejudice to the appellee to pursue any remedies that he may have ip a court of law..

Reversed and dismissed.


text:
    William Archie MAYFIELD, Jr. v. STATE of Arkansas
    5518
    458 S. W. 2d 725
    Opinion delivered October 12, 1970
    [Rehearing denied November 9, 1970.]

      Murphy, Carlisle & Taylor, for appellant.

      Joe Purcell, Attorney General; Milton Lueken, Asst. Atty. Gen., for appellee.
   Conley Byrd, Justice.

Appellant William Archie Mayfield, Jr., was charged by information with first degree murder in the killing of Sheriff Orval Bishop in Green Forest, Arkansas, on July 14, 1969. On a plea of hot guilty, trial was commenced on December 3, and concluded on December 10, 1969. The jury returned a verdict of guilty of murder in the second degree but could not agree on punishment. On December 16, 1969, appellant was sentenced by the court to 15 years in the state penitentiary. For reversal appellant relies upon the following points, to-wit:

I. The systematic exclusion of women from the jury panels.
II. The failure of the court to instruct the jury on voluntary and involuntary manslaughter.
III. The court improperly read only one instruction when the jury requested further definition of second degree murder.
IV. Evidence of statements made by Appellant immediately after the alleged crime were improperly admitted into evidence.

The facts show that appellant and his ex-wife, Clarice, had had domestic difficulties which resulted in an uncontested divorce on June 3, 1969. Mrs. Clarice Mayfield and her two children, a boy 9 and a girl 10, lived in a downstairs apartment at the Boostrom Apartments in Green Forest. On Friday before the shooting she had told Mrs. Pat Harris, an upstairs neighbor, that if she heard any noises to please come down and check about it. In doing so Clarice explained that she and her husband were having some domestic problems.

Pat Harris said that about 9:00 P. M. on July 14, 1969, she and her husband John were sitting out on the balcony of their apartment when they heard noises downstairs. After hearing a scream from the Mayfield apartment they decided to go downstairs together to see if Clarice needed help. When her husband knocked, Bill Mayfield answered the door and told John to mind his own business, that it was a family fight. There was a chain on the door. At the same time Clarice said she wanted out of there or to get Bill out of there, that she didn’t want to stay with him. Pat went across the street at the suggestion of her husband to call the police. After Sheriff Bishop arrived she heard the sheriff ask Bill to come out, that he wanted to talk to him. According to this witness, the sheriff’s tone was friendly. Her testimony is that she and John were on the stairs when they heard Clarice say, “Lookout, he’s got a gun” —then they heard a shot and ran upstairs where they heard more shots, then a pause, then one more shot —i. e., three groups of shots. After the shooting Pat and her husband went down stairs. She said she could see inside the door and Bill was lying on the floor, but she couldn’t see Clarice. When they came back in from the yard where she saw Sheriff Bishop, the chain was still on the door but the woodwork was pulled loose a little. She pushed the door and went on in — she could hear Clarice moan but couldn’t see her as she was behind the door. She noticed Bill laying in the center of the room. He was saying to himself that he had shot Orval, he had shot Clarice and he had shot himself.

John Harris’s testimony is essentially the same as Pat’s, except that he added, after Pat went across the street to call the sheriff, Bill opened the door and asked whether she had gone to call the sheriff. John, not wanting to become involved, lied and told him that she had not. However, Bill a second time opened the door, made the same inquiry and got the same answer.

The testimony of Mrs. Bishop and Dr. Anderson Nettleship clearly discloses that Sheriff Bishop was shot as a result of the shooting that had occurred and that Sheriff Bishop died from the shooting.

Clarice Mayfield testified that Bill called her on the evening of July 14. He wanted to know if she would go out with him the next night and also if he could come by. She said she told him no. Later, however, he appeared at the back door of the apartment with some clothes of their boy. She was terrified and told him so and also told him not to come in. However, he did come in. Their little boy greeted and hugged him. Then Bill told the boy that he was going to get something straightened out between Clarice and Boyd Smith, and sent the boy upstairs to the Harris apartment. After locking all the doors from the inside, he asked Clarice to call Boyd Smith. When Clarice protested he showed her the gun and that it was loaded and said, “We’re going to make that call”. She said that she was too nervous to find Smith’s phone number but Bill found it and dialed, and she did the talking. At one time she started to edge toward the door but Bill pointed the gun at her, so she stopped. About then soméone knocked on the door. Bill went to the door and saw John and Pat Harris. Bill told them it was a family discussion and to go away. At this time Clarice told John she didn’t want Bill there. Later Bill surmised Pat had gone to call the police and told Clarice to tell the sheriff that it was a family discussion, for him to stay out of it, if not Bill was going to kill the sheriff. According to Clarice, Bill answered the door when the sheriff knocked and did not take the chain off. After Bill had told the sheriff that it was only a family discussion, the sheriff told Bill, “Let’s talk this over.” The sheriff also asked Clarice if she wanted Bill there and she said “No”. When she told the sheriff that Bill had a gun, Bill took the gun out of his belt and shot through the door. He then shot Clarice and started shooting himself. The shot numbed her leg and she fell to the floor.

The story of appellant does not vary substantially from that of the other witnesses up until the time of the shooting. He explained his possession of the gun in that he was a gun dealer and the gun had been sold and was supposed to be delivered. He had it in a holster under the seat of his pick-up truck. When he turned in to his wife’s apartment it may have slid out from under the seat. He supposed that while he was getting the boy’s clothes he might have stuck the pistol in his pocket. At any rate, he laid it on the table when he walked in the house. He admitted that an argument was going on when the sheriff asked him what’s going on and that he said nothing. At the time he had the gun and was not going to leave it there after his argument with his ex-wife. He supposed that he might have been holding it in his hand. About that time the sheriff said, “Why don’t we go talk about it”, and Bill said, “O. K.”. As the door chain was latched he pushed the door so that he could get the chain off, then Clarice said, “Look out he’s got a gun.” She hit his arm, grabbed his hand and the gun went off hitting his finger. Bill said he had the pistol in his hand and couldn’t turn loose of it — i. e., he had his finger in it. Clarice got hold of it and twisted and it went off again. He didn’t know where the first shot went but the second shot hit Clarice. When she folded over he thought she was dead so he shot himself once. After that he fell and everything was black. He was in pain and his eyes were closed, but it was light, someone had turned the lights on. He heard noises like a door and there was an echo of shots. At this time he didn’t have any idea where the sheriff was. The next thing he remembered was when Deputy Sheriff Leo Sellers arrived.

POINT I. The three jury commissioners admittedly and intentionally selected no women jurors for the term in which they knew this case was to be tried. The reason therefor is set out by Commissioner Raymond F. Callón who stated that he excluded women from this panel because he was trying to save them from embarrassment. He explained that there might be one or two on the jury and the jury would have to be kept together all night and the commissioners were trying to excuse women on that account. Furthermore, the commissioners correctly understood that under our law a woman does not have to serve and may be excused on her own caprice or whim. The record reflects that the jury was in fact sequestered the nights of Dec. 8 and 9, with some problems about their accommodations.

Appellant obviously was not a member of the class excluded Under our decisions in Bailey v. State, 215 Ark. 53, 219 S. W. 2d 424 (1949); Black v. State, 215 Ark. 618, 222 S. W. 2d 816 (1949), cert. den. 338 U. S. 956, 94 L. ed. 590, 70 S. Ct. 490; and State v. Neff, 169 Kan. 116, 218 P. 2d 248 (1950); appellant has no standing to challenge lack of feminine influence on a jury.

POINT II. The trial court here instructed the jury on first degree murder, second degree murder and homicide by misadventure. Under the testimony of appellant and his ex-wife, appellant either intended to shoot the sheriff or the shooting was done by misadventure. We can find nothing in the evidence to warrant the giving of an instruction on voluntary and involuntary manslaughter.

POINT III. The record shows that after the jury had deliberated some time it returned into court and requested the definition of second degree murder. Whereupon the court proceeded to read the instruction given on second degree murder and to explain the difference between first degree and second degree murder. This procedure was approved in Harrison v. State, 200 Ark. 257, 138 S. W. 2d 785 (1940), and appellant has furnished no reason for our overruling such authority.

POINT IV. Appellant here argues that the trial court erred in permitting four witnesses to testify that appellant told them that he shot Orval, shot Clarice and shot himself. We find the contention without merit for two reasons: (1)^ The witnesses testified that May-field was conscious and knew what he was saying, and (2) the alleged error was not properly brought forth in the motion for new trial.

Affirmed.


author: Frank Holt, Justice. George Rose Smith, Justice,

text:
    William Lloyd JOHNSON v. STATE of Arkansas
    5524
    458 S. W. 2d 409
    Opinion delivered October 12, 1970

      Warner, Warner, Ragan & Smith and Troy R. Doughs, for appellant.

      Joe Purcell, Attorney General, Sam Gibson, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

Appellant was charged by information with the crime of robbery and was convicted of that charge by a jury which fixed his punishment at fifteen years in the penitentiary. Since the evidence disclosed that appellant used a firearm in the commission of the robbery, the trial court imposed upon him, pursuant to Ark. Stat. Ann. §§ 45-2336, -2337 (Supp. 1969), an additional seven years to run consecutively with the fifteen-year sentence set by the jury. From the judgment upon these two separate sentences comes this appeal.

The state’s case established that the Piggly Wiggly Food Mart in Fort Smith was robbed of approximately $3,660 by two armed men, one of whom was wearing army fatigue pants, a blue denim work jumper and a white cowboy hat. Their flight from the scene attracted the attention of a bystander who took down the license number of their get away car. This information, together with a description of the armed robbers by two employees of the store, was furnished to the police. A police radio report was then dispatched describing the robbers and their car — a 1968 or 1969 black over yellow Chevrolet, license number BNI-247. A state trooper, observing this vehicle on Highway 64 about seven miles from Ozark, radioed ahead to Clarksville. A road block was set up, and the vehicle was stopped. The driver was asked to open the trunk, but replied that the car was a rental unit and that he did not have a trunk key. A police officer thereupon proceeded to drive the car toward Ozark where the trunk could be opened. On the way, the officer felt a weight shift in the back end of the car and heard noises from the trunk. He pulled over to the side of the road, stopped the car, and went back to the trunk. He and the local sheriff (who had joined him) commanded any occupant, to come forth or they would shoot into the trunk. The trunk was then apparently forced open from the inside by the occupants and the appellant and a confederate emerged. These men fitted the description of the robbers and were arrested. A loaded pistol was removed from each man; and $3,657, a money bag, a hat, and false eyebrows, sideburns and cosmetics were recovered from inside the trunk. Appellant was identified at trial as one of the robbers, and most of the objects found in the trunk were introduced into evidence.

For reversal, appellant asserts that the state’s tangible evidence was the fruit of an illegal search and seizure and, therefore, erroneously admitted. We do not agree. A determination of the lawfulness of a search and seizure must be made from the particular facts and circumstances of each case. Jones v. State, 246 Ark. 1057, 441 S. W. 2d 458. A search, of course, may be made without a warrant if it is incidental to a lawful arrest and substantially contemporaneous therewith. Moore v. State, 244 Ark. 1197, 429 S. W. 2d 122 (1968); Tygart v. State, 248 Ark. 125, 451 S. W. 2d 225. In the case at bar, then, a resolution of this issue is contingent upon the lawfulness of appellant’s arrest. Since no warrant was issued, appellant’s arrest was nevertheless lawful if there was probable cause to justify it. An arrest without a warrant is valid where the arresting officer has a reasonable grounds to believe that the arrested person has committed a felony. Ark. Stat. Ann. § 43-403 (Repl. 1964); Read v. State, 242 Ark. 821, 415 S. W. 2d 560 (1967). Again, each case must rest upon its own facts in a determination of whether or not probable cause existed. United States v. Theriault, 268 F. Supp. 314 (W. D. Ark. 1967). A police radio report reciting a sufficient description can be adequate grounds upon which to base probable cause for an arrest. See Theriault v. United States, 401 F. 2d 79 (8th Cir. 1968). Probable cause is to be evaluated from the collective information of the police department and not merely on the personal knowledge of the arresting officer. Jones v. State, supra; Williams v. United States, 308 F. 2d 326 (D. C. Cir. 1962). The information must establish more than a mere suspicion, but it need not be tantamount to the quantum of proof necessary to support a conviction. Jones v. State, supra. Simply stated, probable cause is a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man to believe the accused committed a felony. Theriault v. United States, supra; Jackson v. State, 241 Ark. 850, 410 S. W. 2d 766 (1967); Russell v. State, 240 Ark. 97, 398 S. W. 2d 213 (1966).

In the case at bar, the arresting officer was informed of the correct license number of the get away car and had an accurate description of it as well as of the armed appellant and his trunk mate. We are without hesitation in finding that these facts and circumstances were more than sufficient to establish probable cause for arrest and that, therefore, the search and seizure incidental thereto were lawful. For a recent decision holding the search of an automobile valid solely upon the basis of probable cause for the search itself not incidental to an arrest, see Chambers v. Maroney, 399 U. S. 42 (1970).

Appellant also contends that the court erred in permitting certain of the state’s exhibits (the record is unclear here as to what precisely was in view of the jury) to be displayed on the prosecutor’s table prior to being offered as evidence, particularly since all the items on display were not subsequently admitted into evidence. While we do not condone this practice, we can hardly assign reversible error to it in the circumstances. Even in the more extreme situation where exhibits are introduced into evidence and later excluded because of a failure to connect them with the defendant, reversible error will not be declared if the verdict was not affected by the challenged evidence. Thompson v. State, 249 Ark. 36, 458 S. W. 2d 40. Here, the only exhibits not introduced into evidence were the false eyebrows and sideburns and the cosmetics. From an observation by the trial court, it appears that these particular items were never visible to the jury. At any rate, the jury was later admonished to consider only the evidence actually admitted; and, in reviewing the record, it is clear that appellant’s guilt was sufficiently established by ample competent evidence.

Appellant next asserts that prejudicial error was committed when the prosecuting attorney commented during closing argument that appellant was from Illinois and apparently made his livelihood from crime. Appellant’s request for a new trial was denied, and the court admonished the jury to consider only the evidence in arriving at a verdict. The court then stated to the defense attorney: “[Y]ou’ve invited comments of this nature in your statements to the jury and in fairness the prosecuting attorney is entitled to answer you.” We have often had occasion to note that the trial court has wide discretion in supervising the arguments of counsel before juries and that this court will not reverse unless a manifest abuse of discretion is shown. Parrott v. State, 246 Ark. 672, 439 S. W. 2d 924; Petty v. State, 245 Ark. 808, 434 S W. 2d 602 (1968). Here, no abuse is manifested in the trial court’s refusal to declare a mistrial.

Appellant also urges that his conviction should be reversed because, according to him, his trial attorney failed to file certain motions; failed to make sufficient objections and exceptions; and otherwise failed to conduct an adequate defense. It is almost always possible to criticize, after the fact, the performance of an attorney in matters which involve elements of discretion and judgment upon which competent counsel might honestly disagree. Barnhill v. State, 247 Ark. 28, 444 S. W. 2d 97. A review of the record does not substantiate the contention of inadequacy of counsel. See Cross v. United States, 392 F. 2d 360 (8th Cir. 1968); Mitchell v. United States, 259 F. 2d 787 (D. C. Cir. 1958). To the contrary, it appears that appellant had the benefit of effective assistance of counsel in the case at bar.

Finally, we come to the contention that the addition of an extra seven-year sentence by the trial court violated appellant’s constitutional rights. With this we must agree. Although of doubtful validity, we do not deem it necessary here to pass upon the constitutionality of the applicable statute [Act 78 of 1969; §§ 43-2336, -2337, -2338 (Su'pp. 1969)]. We consider only the application of this act to the present case. Section 43-2336 provides that the trial court, in its discretion, may impose an added sentence of up to seven years upon anyone convicted of a felony who utilized a firearm in its commission or escape therefrom. Secdon 43-2338 establishes the right of a defendant to take a separate appeal from such an added sentence. However, the act provides “* * * that the sole and only question to be decided upon such separate appeal shall be whether the evidence warrants a finding that the defendant actually employed a firearm * * In the case at bar, the information did not separately allege that a firearm was udlized in violation of Act 78 of 1969. The information was premised only upon the general robbery statute, § 41-3602 (Repl. 1964). By the terms of this latter statute, the manner of the force or mode of intimidation is not material to the crime of robbery. Although evidence was adduced that appellant committed the crime while armed with a pistol, no specific finding was ever made to this effect by the jury (before which the appellant chose to have his .case tried) inasmuch as this particular issue was never presented to it. The trial court merely considered the evidence and made its own determination of fact or “finding” as to the use of a firearm, thus divesting appellant of his right to trial by jury. It is also quite probable that the jury, in assessing appellant’s punishment at fifteen years, took into account the evidence of his use of a firearm. See Smith v. State, 194 Ark. 1041, 110 S. W. 2d 24 (1937). In the case at bar, the state’s counsel argued to the jury, and properly so, the use of the firearm and asked for a substantial punishment. The general robbery statute, relied upon in the information, provided for a penalty from three to twerity-one years imprisonment. The jury assessed a sentence of fifteen years. By the trial judge’s independent imposition of afi additional penalty, appellant is well likely being punished twice for the same offense. Furthermore, Article II, Section 10 of the Constitution of the State of Arkansas guarantees to an accused the right to a jury trial and “to be informed of the nature and cause of the accusations against him and to have a copy thereof.” See also Amendment VI, United States Constitution. Nor do we consider the availability of a bill of particulars curative of this constitutional infirmity.

For the constitutional infringements outlined above in the application of §§ 43-2336, -2337, -2338 [Act 78 of 1969] to the case at bar, that portion of the judgment imposing an added seven-year penalty on appellant must be reversed and dismissed. It is so ordered.

Affirmed in part; reversed in part.

George Rose Smith, J., concurs.

Harris, C. J., and Fogleman, J., would affirm the judgment in its entirety.

George Rose Smith, Justice,

concurring. Í agree that the additional seven-year sentence imposed by the trial judge must be. set aside. There were clearly two procedural defects in the court below. First, the charge of robbery by the use of a firearm should have been included in the information, to satisfy the constitutional requirement that the accused be informed of the nature of the accusation against him. Ark. Const., Art. 2, § 10. A simple charge of robbery is not the same thing as a charge of robbery by the use of a firéarm, any more than a charge of assault is the same thing as a charge of assault with a deadly weapon. Secondly, the court should not have taken away from the jury the matter of imposing an additional sentence under Act 78 of 1969; Ark. Stat. Ann. § 43-2336 (Supp. 1969). It is quite possible that the jury considered the employment of the firearm in fixing the fifteen-year sentence, in which case the nial judge’s imposition of a second punishment for the same offense violated the prohibition against double jeopardy.

I disagree with the majority opinion, however, in that I believe that in this instance we, should pass upon the validity of Act 78 and should hold it to be constitutional. The issue is argued in the briefs and is a matter of public interest in the administration of the criminal law throughout the state. It is almost a certainty that the validity of the act will eventually be before us in some future case. There is no good reason for deferring our decision when by so doing we make it possible for other cases to be needlessly reversed and needlessly retried.

On the merits, the challenged provision in Act 78 is that clause which permits an additional period of confinement, up to seven years, to be imposed in firearm cases "in the discretion of the sentencing court.” It is argued that such a charge involves a disputed question of fact that must be submitted to a jury rather than to a judge.

It seems to me that the statutory phrase, "the sentencing court,” should be construed to refer either to the judge or to the jury, as the case may be. Ordinarily the judge fixes the sentence in a criminal case, but the judge may do so if the jurors are unable to agree upon the punishment or if the case is tried by agreement without a jury.

In criminal trials in Arkansas the “court” ordinarily is composed of judge and jury. In that situation a statutory reference to the court has frequently been held to refer to the jury alone, if that is what the statute really means. Road Dist. No. 4 v. Frailey, 313 Ill. 568, 145 N. E. 195 (1924); Missouri Pac. Ry. v. Merrill, 40 Kan. 404, 19 P. 793 (1888); People v. Barrett, 56 Hun 351, 9 N. Y. S. 321 (1890); Holland Banking Co. v. Dicks, 67 Okl. 228, 170 P. 253 (1917). In the case at bar the phrase, “the sentencing court,” has no established meaning in the law. The legislature, however, obviously meant something by the term. It seems plain to me that the statute should be construed to refer either to the judge or to the jury, whichever is appropriate in the particular case. In that view the law is constitutional, and I would so hold.


author: Carleton Harris, Chief Justice.

text:
    Cecil B. HEATH v. STATE of Arkansas
    5506
    459 S. W. 2d 420
    Opinion delivered October 19, 1970

      Doris McKnight, for appellant.

      Joe Purcell, Attorney General; Mac Glover, Asst. Atty. Gen., for appellee.
   Carleton Harris, Chief Justice.

This is an abortion case. Cecil B. Heath, appellant herein, was charged with the offense of attempting to produce an abortion by the use of a crochet needle and a catheter, and on a second trial was convicted, fined $500.00, and sentenced to imprisonment for a period of five years. From the judgment, so entered, appellant brings this appeal. For reversal three main points are asserted, it first being alleged that the court erred in overruling appellant’s motion to quash the evidence. It is contended under point two that the court should have directed a verdict for appellant at the close of the state’s case, this contention being based on three sub-points, which will be subsequently discussed. Finally, it is asserted that the court erred in allowing the prosecuting attorney to cross-examine the appellant’s witness, Betty Ann Heath, wife of appellant,. concerning certain items allegedly located in the Heath premises.

The first point relates to the state’s action in obtaining a search warrant for the purpose of searching appellant’s home for certain items which are sometimes used in performing an abortion, this warrant being issued by the Municipal Court of Forrest City. Appellant attacks the affidavit, the warrant itself, and the authority, under Arkansas law, to issue a search warrant in this type of case. We see no need to discuss the arguments presented for the reason that none of the items seized by the officers under the authority of the search warrant were offered in evidence by the state. The only exhibits offered were the hospital records pertaining to the treatment of Mrs. Clara Snider, upon whom the attempted abortion was committed, and the apparatus which was uséd to induce the attempted abortion. It is not contended that these exhibits were obtained by an unlawful search or seizure. Accordingly, since the items obtained through the alleged unlawful search and seizure were not offered into evidence, no prejudice could have resulted, and the point is without merit. See Evans v. U. S., 325 F. 2d 596, and People v. Marsh, 26 Cal. Rptr. 300, 376 P. 2d 300.

It is next asserted that the court erred in failing to direct a verdict at the conclusion of the state’s case for the defendant for three reasons. The first argument is directed to appellant’s contention that the state’s prosecuting witness, Mrs. Clara Snider, being the party upon whom the abortion was attempted, and consenting that the act be done, was an accomplice, and that her testimony was not sufficiently corroborated. Appellant requested the jury be instructed that Mrs. Snider was an accomplice and that her evidence must be corroborated before appellant could be convicted. The court did not err in refusing to give this instruction, for under Arkansas law, Mrs. Snider was not an accomplice, and her testimony was sufficient, if believed by the jury, to support the conviction. This is clearly the general rule, and the few cases holding otherwise seem to be based on particular statutes. Our own statute, Section 41-303 Ark. Stats. Ann. (Supp. 1969) is directed toward the person who administers or prescribes medicine or drugs to any woman with child, with intent to produce an abortion, or to produce or attempt to produce an abortion by any other means. There is no mention of any penalty for the pregnant woman, and we have no case holding the person upon whom the abortion is performed to be a principal or an accessory, or in any other way, a particeps criminis. Arkansas has several abortion cases in which the person attempting the abortion was convicted largely on the testimony of the woman upon whom the act was performed or attempted, but the question of whether the prosecuting witness was an accomplice has never been raised, it evidently being accepted that she could not be considered in that category. See Burris v. State, 73 Ark. 453, 184 S. W. 723, Thompson v. State, 260 S. W. 723 (not reported in Arkansas). We find no merit in appellant’s argument and thus there is no need to discuss the matter of corroboration but, if it were otherwise, we might say in passing that we consider Mrs. Snider’s evidence to have been sufficiently corroborated to have presented a jury question as to appellant’s guilt or innocence.

It is next asserted that the evidence reflects that witness testified that she was interviewed by Sergeant Mitchell of the Arkansas State Police the day after entering the hospital and she admitted that she had told the officer that the attempted abortion occurred in Jonesboro. The record then reveals the following:

“Q. And let me ask you if either Sergeant Mitchell or some police officer did not advise you that you could be prosecuted as an accessory to the crime of abortion?
A. I don’t know as it was said in those words.
Q. Well, was it intimated to you in any words?
A. It was explained to me that this type of thing should not have happened, and the person who did it should be prosecuted for it.
Q. But, you are not answering my questions. I asked, did this police officer advise you or tell you you could be prosecuted as a party to an abortion?
A. Yes.
Q. Now, that is what I asked you, and the answer to that is yes?
A. Yes.
Q. And it was after this that you told them that Jerry Heath did this, is that correct?
A. Yes, I did.
Q. And it was also asked by this same investigator, ‘Did not Mr. Heath do this? Didn’t Jerry Heath do this?’ They asked you that several times, didn’t they?
A Yes.
Q. And you told them no, isn’t that correct?
A. Yes, I told them no because I didn’t want anyone to know who had done it.
Q. But, after it was explained to you that you could be prosecuted for it, you said that it was Mr. Heath, is that correct?
A. They said it would go hard on me if I didn’t tell who did it.”

In reading this evidence, it will be noted that the answers most relied upon by appellant are those wherein counsel, in vigorous cross-examination, stated the answer desired in the question, and the witness only replied “yes”. It is true that counsel was entitled to ask these questions on cross-examination, and there was certainly nothing out of line in doing so. Still, it would appear, that under the circumstances of this case, “yes” and “no” answers are not nearly so persuasive as those answers in which the witness makes the statement herself or voluntarily elaborates. The answer “it was explained to me that this type of thing should not have happened and the person who did it should be prosecuted for it” is in the words of the witness herself. The answers, of course, are somewhat contradictory, but at any rate, the testimony mentioned does not, as a matter of law, so taint the testimony that it was inadmissible. A similar case, though one in which the facts were much more favorable to appellant, was Scott v. State, 169 Ark. 326, 275 S. W. 667, where Scott was convicted of carnal abuse of a girl about fourteen years of age. The principal point for reversal was that the testimony of the girl was extorted from her by duress exercised by the trial judge and the prosecuting attorney, and that the court erred in permitting the witness under those circumstances to testify against appellant. The opinion, by Chief Justice McCulloch, sets out that the prosecuting witness was called by the state, and after a few preliminary questions, was told by the prosecuting attorney of the charge against appellant and directed to tell the jury just what happened. The witness made no answer, and was then told by the trial judge to tell what occurred. Still no answer was made, and after further unsuccessful urging, the girl was temporarily excused and another witness was called. The prosecuting witness was recalled but still made no answer to the questions propunded to her. Finally, the court said:

“Young lady, I am getting out of patience with you. I think it is as much stubbornness as anything else. Take your hands down from your face and answer the question.”

Her father was then directed to take her to the jury room to see if he could “do anything with her”. The opinion then recites:

“After a short absence all of the persons named returned to the court room, and the attorney for appellant made objections to the introduction of the witness on the ground that duress was being used to force the witness to testify. This occurred during the afternoon, and the court announced that there would be an adjournment over until next morning, and stated to the witness that she would be expected to answer questions the next morning and tell the truth. On the next day the girl was recalled to the witness stand, and when the first question was propounded to her she announced that she was not going to prosecute appellant and gave the same answer to repeated questions. There was one question, however, which she answered in the negative, and that was the one propounded by the prosecuting attorney as to whether or not she had ever had sexual intercourse with appellant. She answered, ‘No, sir’. The prosecuting attorney then asked her if her testimony before the grand jury was false, and she made no answer to that question. The court then directed the sheriff to take the witness to jail, and the jury was allowed to separate with the usual admonition not to have any conversation about the case. In the afternoon the girl was again called to the witness stand and answered the questions of the
prosecuting attorney, narrating the circumstances under which the alleged crime was committed. She was cross-examined at length by appellant’s counsel, and other witnesses were introduced tending to show contradictory statements made by the girl to other persons.
Appellant insists that the record shows that coercion was used to compel the girl, not merely to testify in the case, but to testify to particular facts against the appellant, and counsel contend that this rendered the testimony of the witness incompetent. We do not agree with counsel that they are correct in their contention as to what the record shows. It is true that one answer given by the witness exonerated appellant from guilt, and that was the only question which was answered by the witness until she finally concluded to testify in full. [Our emphasis] It is manifest, however, from a,consid-erad on of the whole record that both the trial judge and the prosecuting attorney were merely endeavoring to induce the witness to testify — not to compel her to testify to any given state of facts. She was repeatedly admonished that all she was expected to do was to tell the truth and to narrate what had happened, if anything, between her and appellant on the occasion mentioned in the indictment. Certainly it was the duty of the court to compel a recalcitrant witness to testify.”

It is evident that the facts there relied upon, particularly the italicized portion, were much stronger than those in the case before us.

It might also be mentioned that the cases involving the testimony of an accomplice against one with whom he committed the crime, are in a sense analogous. In the case of Vaughan v. State 57 Ark. 1, 20 S. W. 588, the proof reflected that Hamilton killed W. A. Gage. Hamilton testified that he killed Gage and that Vaughan promised him a certain sum of money if he would do so, and appellant had procured for him the gun with which the killing was done. It developed that Hamilton’s attorneys had made an agreement with the prosecuting attorney that Hamilton would testify, provided he would be permitted to plead guilty to murder in the second degree. In an opinion by Chief Justice Cockrill, this court said:

“Hamilton was a competent witness. The proof relied upon to exclude his testimony tends only to show that he was induced to testify by an offer of leniency of punishment. The fact could affect his credibility only.”

Here, too, the acts complained of could only affect the credibility of the witness. The jury heard this evidence and it was within their province to determine whether Mrs. Snider was truthful in testifying that Mr. Heath was the person who attempted the abortion.

The third sub-division under point two is that the evidence established that the appellant was not guilty of the crime with which he was charged, and the court should have directed a verdict in his behalf. Mrs. Snider testified that she met Heath in Memphis at Jetts Beauty Salon where he worked, and that he set her hair each week She said that he had told her about performing an abortion on another girl and she (Mrs. Snider), being pregnant, asked if he would help her. He agreed that he would do so for $100.00. Heath lived, with his wife, at Palestine, Arkansas, and Mrs. Snider went there after dark on the evening of May 31, 1969, at the agreed time, following him to his home. The witness said that Heath first stopped at a whiskey store; that she followed him inside, and heard him talking to someone on the telephone advising the party on the other end that he was bringing Mrs. Snider to the home. Company was at the house, along with a Miss Emily Strider, who was staying with the Heaths, and the visitors did not leave until about midnight. Mrs. Snider said that she noticed a box of syringes on the kitchen table. She described the steps taken by Heath and his wife, including the insertion of an instrument which was used for an examination. The witness stated that Heath used a crochet hook to insert a catheter, then used a cotton swab inside of her, and she began to bleed. He had first given her a shot of Vitamin B-12 and a slow acting penicillin shot. According to Mrs. Snider, Heath’s wife prepared him two alcoholic beverage drinks during this period, and after he had finished, Heath told her that she would probably miscarry. She then went into a “cold sweat”; couldn’t get her breath, and was literally gasping to the extent that Mr. Heath was frightened; he told his wife that they had better take her to the hospital. Heath, his wife, and Miss Strider then drove her to the hospital in Forrest City. Mrs. Snider said that when she left Palestine she still had the catheter in her, and it was still there when she reached the hospital, the nurse removing it. The witness told the nurse that she had had an abortion performed at Jonesboro and she (Mrs. Snider) testified that she told this at the suggestion of Heath who, on the way to the hospital, kept telling her “when you get to the hospital, tell them this was done in Jonesboro”.

Dr. Herbert H. Hollis of Forrest City, testified that Mrs. Snider was admitted to the hospital on June 1, 1969, at 2:50 a.m.; that he had been called by Heath, who was* one of his patients, and told there was a girl at his home that seemed to be having a penicillin reaction; the doctor was told that she had had an abortion at Jonesboro and that she had come to appellant’s home and he had given her a shot of penicillin. The doctor said that Heath asked if she should be given a shot of Adrenalin, but he advised Heath to take> her immediately to the hospital emergency room, and the doctor asked appellant why he was giving shots in his heme Hollis stated that he had found Mrs. Snider in a mild state of shock, complaining of abdominal cramping and he removed a small rubber catheter from her, the catheter being taped to her leg; that the catheter was inserted into her vagina and was an attempt at an abortion. He said, however, that it appeared that there was insufficient penetration of the uterus to produce the abortion. Mrs. Snider testified that the attempted abortion took place sometime after midnight, but she was unable to more definitely fix the time. Dr. Hollis, when asked if he could say how long the catheter had been in the body of Mrs. Snider before being removed, replied that it could have been days, or it could have been a matter of a few hours. He was of the opinion that it had been there more than 15 or 20 minutes. Appellant says that, according to Mrs. Snider’s testimony, she. was taken to the hospital as soon as she went into shock, the Heath home being located about 9 miles from the hospital, and it would have taken 15 or 20 minutes to arrive there. It is then asserted that Dr. Hollis’s testimony shows that the catheter had been inserted several hours before, and that the conflict in the state’s evidence establishes that the attempted abortion did not take place at the home of Heath, but is in line with the statement that she made upon reaching the hospital, and subsequently to the state police, that the abortion had been attempted in Jonesboro.

We do not agree with the conclusions reached by appellant. In the first place, the evidence on this particular point is quite vague. Mrs. Snider was only able to say that the attempt took place after midnight, occurring after the guests had left. She only mentioned one thing that was done before the catheter was inserted, that being that she was given two shots by appellant. Certainly, that would not have taken very long and the record reflects that Dr. Hollis saw her about 3 a.m., or approximately three hours after the time, from the testimony, that the catheter could have been inserted. In addition, the doctor’s testimony was far from positive; in fact he used the expression in estimating the time period, “My guess would be a few hours * * Of course, counsel for appellant might well argue to the jury that there was an inconsistency — but the determination of that fact was a jury matter, and it is evident from the verdict that the jurors were unanimously of the opinion that Heath inserted the catheter. A review of the testimony related under this point makes it evident that the evidence was ample to sustain a conviction.

Finally, it is contended that the court erred in allowing the prosecuting attorney to cross-examine Mrs. Heath concerning certain obscene material. She was asked about the possession of photographs of nude men and women, some of the photographs depicting natural and unnatural sex acts. Defense counsel objected on the grounds that this was completely immaterial to the question of whether an abortion had been performed on Clara Snider. The court overruled the objection, holding the evidence admissible for the sole purpose of testing the credibility of the witness. Upon her answering that she was familiar with the photographs, she was then asked if any of the photographs contained pictures of sex a as by the witness. Counsel again objected on the basis of immateriality stating “It is purely for embarrassing the person”. The objection was overruled, and the witness answered “Yes, sir”. An objection was sustained to cross-examination concerning whether there were any similar pictures of the appellant. She was also asked concerning movie films similar to the photographs just mentioned, but she answered that she was not included in the films.

It is argued that appellant’s rights under Amendments IV, V, and XIV to the Constitution of the United States were violated, it being contended that the knowledge obtained by the prosecutor which enabled him to propound these questions to the witness, was acquired by an illegal search of Heath’s home. We do not agree. In the first place, there is absolutely no showing that this information was obtained by the prosecuting attorney as a result of any search made by officers. Nor was this the basis of any objection made by appellant to the questions concerning the pictures. Instead, he objected because of immateriality, and “embarrassment” of the witness. Let it be remembered that these questions on cross-examination were not asked of the appellant; rather, they were asked of Mrs. Heath, who was simply a witness on his behalf. This court has held over a long period of years that the credibility of a witness may be impeached by showing acts of moral turpitude. In Kazzee v. State, 199 S. W. 354 (not in Ark. Rpts.), we said:

“Amy Muyers testified as a witness in appellant’s behalf, and certain questions were asked her on her cross-examination tending to show immoral acts on her part, and exceptions were saved to the ruling of the court permitting this to be done. These questions were not improper, when asked upon the cross-examination of the witness, as they were circumstances affecting the credibility of the witness; the answer, whether true or false, beings conclusive of this collateral issue.”

Numerous Arkansas cases are cited m support of this holding.

On the whole case, we find no prejudicial nor reversible error.

Affirmed.

       The first trial resulted in a mistrial.

       Section 41-303 Ark. Stats. Ann. (1969 Supp.), a part of Act 61 of 1969, is an exact copy of Section 41-301 Ark. Stats. Ann. (1964 Repl.) insofar as it deals with illegal abortions, not being changed nor affected by Act 61. This later statute deals primarily with the requirements for a legal abortion.

       In this case the defendant was convicted upon the sole testimony of the woman upon whom the abortion was performed.

       This penicillin was Ycillin, which the witness said was in Heath’s refrigerator. She said she saw the box with the name on it.


author: George Rose Smith, Justice.

text:
    Sandra NORTHCUTT v. Robert NORTHCUTT
    5-5250
    458 S. W. 2d 746
    Opinion delivered October 19, 1970

      Hodges, Hodges &r Hodges, for appellant.

      /. F. Sloan III, for appellee.
   George Rose Smith, Justice.

In the trial court the appellee husband obtained a divorce on the ground of adultery and was awarded custody of the couple’s two-year-old son, Marty, subject to specified visitation rights in the mother. The appellant, in seeking a reversal on both points, concedes that only questions of fact are presented for review.

We find the decree to be supported by the weight of the evidence. The appellee, his parents, and another witness not related to the parties gave testimony from which the chancellor could and did find that on at least two occasions the appellant spent the night at the home of her alleged paramour. The appellant admitted having spent several nights in the man’s home, but she said that he was not there on those nights. The man himself did not testify. Both instances occurred before the appellee’s counterclaim was filed on December 6, 1968; hence it cannot be said that the asserted misconduct was pleaded prematurely. Thomas v. Thomas, 208 Ark. 20, 184 S. W. 2d 812 (1945); Spurlock v. Spurlock, 80 Ark. 37, 96 S. W. 753 (1906). There was other testimony, which we need not detail, of a corroborative nature.

The issue of custody presents a somewhat closer question, primarily because we are inclined to favor the mother when the child is very young. Nevertheless we cannot say that the chancellor’s award of custody to the father is contrary to the preponderance of the proof. The mother’s unfitness is indicated not only by her illicit association with her paramour but also by her conduct in taking the child along with her when she went to the man’s home or rode with him in his car. There is much evidence to show that the child was not kept as clean as he should have been while he was living with the appellant. On the other hand, the home of the appellee’s parents — where the child will reside —is shown to be a suitable place for his upbringing. In fact, the appellant stated in her testimony that the appellee’s mother hád done “a good job” in taking care of the child from time to time during the couple’s separation. On the record as a whole we are unable to say that the trial court was wrong in reaching his decision.

Finally, the allowance of an attorney’s fee to the wife is not, as counsel suggests, a matter of right, regardless of the outcome of the case. Hodge v. Hodge, 161 Ark. 299, 255 S. W. 1090 (1923). In the case at bar it does not appear that the chancellor abused his discretion in refusing to make such an allowance.

Affirmed.


author: Lyle Brown, Justice.

text:
    ARKANSAS ELECTRIC COMPANY v. CONE-HUDDLESTON, INC. et al
    5-5321
    458 S. W. 2d 728
    Opinion delivered October 19, 1970

      Rose, Barron, Nash, ■ Williamson, Carroll b Clay, for appellant.

      Wright, Lindsey b Jennings, for appellants.
   Lyle Brown, Justice.

Arkansas Electric Company sued the three appellees, Weir Brothers Electric, Inc., Cone-Huddleston, Inc., and Commercial Union Insurance Company of New York. Cone-Huddleston was the prime contractor on a construction project for the Lon-oke United Methodist Church. Commercial National furnished the performance bond for the prime contractor. Weir Brothers was the sub-contractor for the installation of electrical supplies. The suit brought by Arkansas Electric was for electrical supplies ordered by Weir Brothers. Arkansas Electric obtained judgment for the full amount claimed as against Weir Brothers; but as to the other two appellees a small credit was allowed for materials which the court determined did not go into the job. Prior to the final judgment after trial there was a default judgment for the full amount entered against Commercial Union, along with statutory penalty and attorney’s fee. The setting aside of that judgment is one of the issues raised by Arkansas Electric on appeal. The other two points for reveral concern the allowance (as to the prime contractor and its surety) of two credits totaling $21.62, the result of which was to defeat appellant’s claim for penalty and attorney’s fee.

First, the default judgment. Commercial Union was served the second day after the suit was filed; and Cone-Huddleston was served twelve days later. Commercial timely requested its insured, Cone-Huddleston, to file an answer in the former’s behalf and to defend, as it was contractually obligated to do. Of course the defenses would be identical and Commercial Union’s liability would be predicated on Cone-Huddleston being liable. Cone-Huddleston was agreeable to Commercial Union’s request and filed a joint answer; however, the answer was out of time insofar as Commercial Union was concerned. That was because of the twelve day differential in service heretofore mentioned, of which Cone-Huddleston was not aware. In other words, Cone Huddleston calculated the time to answer on the basis of service upon it rather than using the date Commercial Union was served.

The court concluded that Commercial National in good faith had been led to believe an answer would be timely filed in its behalf by Cone-Huddleston, which was not done because “Cone-Huddleston erroneously assumed that it had twenty days from November 18 [its date of service] in which to file an answer for itself and Commercial Union.” The trial court is authorized by Ark. Stat. Ann. § 29-401 (Repl. 1962) to set aside a default judgment “upon showing of excusable neglect, unavoidable casualty or other just cause.” It is an action which addresses itself to the discretion of the court. We are unable to say that the trial court abused its discretion. We are also asked to say whether Cone-Huddleston’s answer in its behalf inured to the benefit of Commercial Union. We need not reach that question since we hold that the action of the trial court under §29-401 was not improper.

Appellant Arkansas Electric next insists that the court erred in admitting certain evidence of credits. This project began in March 1967. All invoices tendered Weir Brothers for materials supplied between March and December 4, 1967, were paid. Arkansas Electric sued for materials invoiced between December 4 and the following March and it is contended by Arkansas Electric that no credits could be claimed for invoices sued upon. Arkansas Electric emphasizes that all those “prior invoices” had been paid.

One of the questioned invoices listed 200 electrical split adapters, costing $29.25. The other invoice was for two electrical circuit covers costing $7.00. They were invoiced respectively in August and November 1967, designated for the church project, and paid. Cone-Hud-dleston and Commercial Union persuaded the court to consider those payments as evidence of credits on the theory that the materials did not in fact go into the church job. A consideration of the claimed credits was not improper. The prime contractor and its surety were liable only for materials which went into the church project. If upon audit it could be discerned that the running account contained some charges against the church job that in fact did not go into that project then the prime contractor and the surety were entitled to credit therefor. We see no logical reason why that credit would not carry over to unpaid invoices.

Finally appellant argues that even though we conclude that the evidence of alleged improper charges against the project was admissible, the quantum of that evidence was not sufficient to establish that the disputed items were not used in the project.

With respect to the 200 adapters the evidence showed that they were shipped by Arkansas Electric to the home office of Weir Brothers in Searcy, not to the job site in Lonoke. Weir Brothers’ bookkeeper testified that she marked the invoice “stock” which generally indicated that the items went into the stock of parts kept at the office. Charles Weir was called as a witness by Arkansas Electric. It was hoped to establish by him the number of adapters which were installed at Lonoke. Weir worked on the job and was frank to admit that he could not recall just how many were used. He was asked to state — based on his recollection of the job — the maximum number of adapters used. To that question he replied: “Well, from what I remember about the job I’d say somewhere around half of these on the invoices probably were used.” He characterized his estimate as an “educated guess.” Apparently the trial court considered the estimate more than a guess on Weir’s part because the witness was a man of considerable experience in electrical construction and was active on the Lonoke project. Be that as it may the court concluded that the Lonoke, project should be charged with only one-half the adapters. ,

Then there was the item of the two electrical circuit covers. It appears certain that two covers were shipped which were not sized for the circuits intended to be covered; that Arkansas Electric was notified and made a notation on the invoice to that effect and with a further notation that credit would be given when the covers were returned to Arkansas Electric. There was evidence that they were not returned, and that they could in fact have been used on other circuit boxes on the project. In granting Cone-Huddleston and' its surety credit for this $7.00 under evidence which appears conflicting, the court, sitting as a jury, was so convinced that, the covers were not used that he remarked, “I know of no other interpretation that I could possibly place on the testimony that I have heard.”

Concededly there- were testimony and circumstances which made the allowances close questions of fact, which is not unusual in litigation. A sifting of the evidence reveals good argument for contradictions on both sides of the issues. Yet that situation of itself does not warrant us in disturbing á finding of fact. Lumbermens Mutual Ins. Co. v. Cooper, 245 Ark. 81, 431 S. W. 2d 256 (1968). We utilize the substantial evidence test and consider the evidence in the light most favorable to the jury findings (or the findings of the court sitting as a j.ury); and we draw all inferences that may reasonably be so drawn, in favor of those findings. Spangler v. Comer Lumber & Supply Co., 246 Ark. 764, 439 S. W. 2d 792 (1969).

If the trial court was correct in allowing either one of the two credits then we would not be warranted in reversing the case. We are unable to say that neither of the two rulings was supportéd by substantial evidence.

Affirmed.