197 S.W.2d 936 | Ark. | 1946
Appellant was charged by information with the offense of murder in the first degree for unlawfully *882 killing Rinehart Herman Doerr on August 30, 1945, by "striking, bruising and choking him." From judgment, based on trial jury's verdict, finding him guilty of murder in the second degree and sentencing him to imprisonment in the penitentiary for a term of twelve years, he prosecutes this appeal.
For reversal numerous rulings of the lower court as to admission of evidence and as to instructions are urged by appellant as having been erroneous and prejudicial, and it is also contended that the evidence was insufficient to establish the guilt of appellant. In the view we take of the case, it is unnecessary to discuss any assignment of error except that relating to the sufficiency of evidence.
The evidence against the accused was entirely circumstantial. In such cases it is required that the evidence relied on must show the guilt of the accused to a moral certainty and must exclude every other reasonable hypothesis than, that of the defendant's guilt. Judge Butler, speaking for the court, said in the case of Bowie v. State,
The evidence in this case, when given the strongest probative force in favor of the state, as must be done, may be summarized thus:
Appellant, a married man with three children, lived at Lamar, a few miles east of Clarksville. Doerr, the deceased, was an unmarried farmer, living alone near Clarksville. On August 30, 1945, appellant and Doerr spent a considerable portion of the day together. Both *883 of them were drinking. In the afternoon they and others hired a taxicab and drove to Russellville where they drank beer. They returned to Clarksville and in the late afternoon appellant and Doerr were seen together going toward and about half a mile from "Ripple Hole," a large pool of water about a mile south of Clarksville on Spadra Creek. An hour or two later appellant was seen in Clarksville, where he hired a taxi to drive him out to the south part of the city. About midnight he was driven to his home at Lamar, where a woman spending the night in his home noticed that his shirt was torn.
On the following afternoon a party of young people swimming in "Ripple Hole" discovered the nude body of Doerr in the water. Officers removed the body. When his body was discovered, Doerr's right hand clutched a stick about three feet long and as large as a man's middle finger, and in his left hand was some "under-brush." There was some discoloration of the skin around his neck. The funeral director who took the body in charge testified that the man had been dead about twenty-four hours — at about 4:30 or 5:00 o'clock on August 31, 1946 — when he first saw him. An autopsy performed Saturday night, September 1, 1946, disclosed no water in his lungs and the physicians making the autopsy testified that Doerr had been choked to death, and that he had been dead about forty-eight hours at the time of the autopsy. No clothing belonging to Doerr was ever found, but some ashes containing shoe eyelets, shoe tacks and a "zipper" were found about one hundred yards from "Ripple Hole." There was testimony that Doerr had a pocket book which closed with a "zipper."
Appellant did not testify, but a written statement made to the sheriff after his arrest was read in evidence. In this statement he denied guilt and said that he was not in the company of Doerr on the way to "Ripple Hole" date in the afternoon of August 30th. He claimed he left Doerr in the business district and never saw him any more. There was some corroboration of appellant's explanation as to his whereabouts in the late afternoon and early night of that date. *884
In the case of Hall v. Commonwealth,
Likewise, in the case of Warren v. Commonwealth,
The facts in the case at bar bear some resemblance to those in the case of Edmonds v. State,
We conclude that the testimony adduced was not sufficient to establish the guilt of appellant with the certainty that the law requires in cases of this kind. We cannot say that the circumstances shown could not be reasonably explained except upon the hypothesis of appellant's guilt. This language by Mr. Justice Frauenthal, in the case of Reed v. State,
The judgment of the lower court is, therefore, reversed and the cause remanded for a new trial.