*1 v. STATE KAGEBEIN Arkansas Newton Joe 9, 1973 July delivered Opinion *2 Wright, Lindsey Jennings, by: Allen, & H. William appellant. for Ray Atty. Thornton, by: Gen., Neal, A. Asst. James
Atty. Gen., appellee. Special C. appel- Chief Deacon, Justice. John years age, charged by was along information, with three other teen-agers, degree with first murder because the death Jimmy Wayne Wampler. Kagebein’s motion for a sev- granted, erance was jury and after a trial, he was found guilty with no leniency. Judgment recommendation for sentencing was entered him to death in the electric chair. appointed This Court new represent appel- counsel to appeal. lant on some of points presented, Twelve for reversal are require which have merit and reversal. A Kagebein confession taken from was introduced into Kagebein evidence and personally. refusing also testified companions None his testified, all of them questions ground answer might that it incrimi-
nate them. The evidence showed that on 7, 1970, Novermber Kagebein, Newton living who had been his Joe with grandmother in DeWitt for a few months, was in the company teen-age boys, three older Teddy Kittler, Benny Larry West and Mannis. Mannis car, borrowed a got money some bought and They some beer. consumed beer, p.m. and around 9:00 liquor Mannis went a store through in Gillett the back entrance, but was told proprietress that she going was not to sell him anything to drink age. Kagebein because says his he asleep was point, at that sufficiently but awoke to hear boys talking other about a buy man that would them they some beer if would let him “do that act on them.” asleep again He fell says he was not awake when companions his Wampler, came in Jimmy Wayne contact with 27-year-old a County Cross farmer. night,.Wampler came into p.m. that 10:00 About ser- declined been Mannis liquor where store same Kage- packs of beer. botight six Wampler three vice Wampler he when aware says first was he bein awoke boys arguing Wampler other and the found got out Kagebein that when noticed the car. in of night wearing gown. a ladies’ he was the car pre- his nor Kagebein’s confession Neither facts, account picture very of the clear sented disjointed testify Kagebein did follow. and difficult consumed, he had beer that the’ sick from he was he was that that Benny side tbe other West seeing whát prevented from' him car, darkness and that going *3 Wampler part that time. He said on a was ran Wampler of boys knocked one and that the after Teddy into Kittler' against knocked boys car the and the Wamp- held.guns boys on all of the He said that a ditch. to was done this times, claimed but ler different Kagebein he Wampler admit keep them. off did with a right head side Wampler on the once hit . struck he after and that boys protect other .22 away grin His him. blow, took' Mannis contained .from that all four a confession boys statement yelled Wampler down, Wampler and knocked Teddy Kágebein said to shoot him. at them grpund, was Wampler while Kittler shot the bruises wbo know he did not ádministered but that Wampler’s chest. back and on arid marks boys back Wámpler shot, started was After Teddy they at his home. out Kittler let and DeWitt other square in boys on to the drove then three and Mason of Police Chief and DeWitt Officer Wendell located James patrol. and Mannis Best, who were on telling began about them got the car and out West very upset in a was killing Mannis of DeWitt. south Best and Mason on the sidewalk. and fainted condition physical violence was no testified that there on be drunk. officers ed appear boys did not boys and that any enforcement law radioed other Mason Chief describ- to the scene they lead them Wes.t they there arrived boys. the' officers by the When condi- body Wampler’s a bruised mutilated found only body pair don. The clothes were a of boots piece panties and ladies’ leg, a torn of ladies’ on one with a night gown lying partially draped under and over Wampler’s clothing the head. lying in a found neat bundle on one side his truck. point urged
The first for reversal is that the intro- hearsay allegedly duction of pre- statements made appellant sence of right was a denial of his to remain during silent. On two trial, occasions the State elicited testimony, objection, police over from the officers to showing make a Kagebein’s statements were made companions presence in his while he the others were police custody, Kagebein and that remained silent in the face of the statements. Patrolman Oswald, one of the witnesses, State’s James testified that hospital he was at the with Mannis and
Kagebein, that Mannis was unconscious for about an hour, and that after the doctor revived him a little bit and saying kept seeing Mannis he was man, a dead a nurse or dead him.” you him, someone asked “How do know was a. replied, man?” and that Mannis we “Because killed specifically patrolman The State asked statement, Oswald Kagebein whether denied the and received a negative reply from Oswald. *4 The second statement was detailed Arkansas Trooper State Travis objection, who, Nash over with testimony specifically to Kagebein indicate was in enough proximity dose to hear remark, said boys” that “one of laughing was Joey about jumping up and down on the man’s stomach after he Kagebein was dead and deny did not the statement at the time. questioning The State’s and ruling the court’s objections defense indicate that the of Oswald exception Nash was hearsay offered as an to rule, commonly Kagebein called the “tacit admission rule.” police in custody presence and in police of the when both statements of his yet were He made. had not been advised rights intelligently could not have waived them. Under Kagebein’s circumstances, these silence must against right self- of his be an assertion to be assumed hearsay statements introduction The incrimination. right Kagebein’s silent to remain was a denial prejudicial error. constituted affecting was stated admissions tacit This rule (1966): Arizona, 384 U.S. Miranda imper- today, it decision “In with our accord exercising penalize an individual missible his Fifth privilege is under when he Amendment n interrogation. prosecution police custodial may therefore, stood not, trial the fact that he use privilege in face of accusa- his or claimed mute tion.” upon the tacit Miranda decision The effect of the recognized by this Court. has been
admission rule (1969). 440 S.W. Gross type rejected this Miranda, our Court Ever circumstances, as indicated certain of by under 2d 216
Anderson v. (1939), where we said: “ offering compelled, be when cannot 'One give defense, own in his
himself as a witness evidence tending himself. to incriminate
in court compelled so to do out Much less should he guilt, is evidence If silence such case court. penalty charged must, with under then one crime against creating damaging most of himself charge, support a contro- enter into himself may every straggler versy who idle of words Merriweather him to his face.’ choose to accuse Ky. 592, 4 Commonwealth, Ann. Cas. 1039.” Supreme Penn, 413 in State v. Court Missouri point (1967), and said: considered
S.W. 2d 281 *5 party] third of what [the relation “Sheriff Bethel’s Higgins, hearsay.’ “purely Mo. State said was apparently offered The State 61. testimony theory appellant’s silence party’s] third when [the statements were made his presence, guilt an constituted admission of his exception hearsay an pros- If rule. this was the ecuting attorney’s theory, was in- admissible. ‘The rule of the law this state is well settled custody while the defendant is in or under arrest, party, statements of a third made in his presence, denied, and not are inadmissible at ” the trial.’ appellant’s Some of points other for reversal they may mentioned, should be upon arise a retrial. appellant urges that the exclusion evidence of prior homosexual advances of the deceased was error. appellant’s though defense, being even he was tried accessory as an charge degree before-the-fact to a of first murder, as a Wampler was that the death of came about not part pre-arranged plan of a him, to rob and kill as argued by but out resistance to his homosex- Appellant ual advances. argue does not that the evidence homosexuality justifies homocide but does insist that permitted he should have been to introduce tend- evidence ing to corroborate the claim that homosexual activities preceded killing. urges important He this was jury’s least to the degree consideration of the of homicide committed. anticipated The State part this defense and as of its presented case in chief designed any to rebut suggestion Wampler might bargained have to trade beer for homosexual Wampler’s favors. cousin, A. J. Wampler, testified that usually bought deceased beer going
before hunting. deer shop The owner of a dress Stuttgart testified that it would be uncomfortable for person large Wampler as as night wear the size gown panties found body. with the deceased’s Thus homosexuality the issue of was before the only through jury, but evidence offered the State. through From voir dire testimony, the defense all at- tempts by the defense to jury determine attitudes of the homosexuality toward to introduce prior specific suggesting acts been in-
910 to the past invitations improper extending
volved the court. were rejected boys characterize to offered is evidence character When is rule deceased, the general the acts or explain reputation to the general be confined should that proof not be permitted should that inquiry the deceased State, v. Montague or conduct. acts specific concerning directed Even when (1948). 879 Ark. S.W. 2d 211 213 in this as the deceased defendant, than to rather toward a admitted been has similar offenses case, evidence sexual or unusual unnatural involved charge when the (1963); State, 425 Ark. 2d 370 acts. Ward 236 804 (1954); Ark. 266 223 Alford Roach v. (1953); 647 S.W. 2d (1946); 196 S.W. 2d Hummel v. rea One 1943). 174 S.W. 2d Hearn misconduct sexual of prior evidence allowing son for ex that is activity similar case involves when the out of such evidence relevancy tremely high degree the defendant. that caused may prejudice weighs. life defendant’s when exception as If an permitted evi act” “specific stake, it would seem at liberty is victim, where of a behavior sexual dence of similar prior stake, compelling be a more would at only reputation exception. States, (1960), F. United
In Evans v. was killing was that the defense where held that Court clear was assault a sexual necessary repel re- it was of killing, drunk time was the deceased to the effect to admit error to refuse versable drunk. defen- was when aggressive deceased that the proffered victim strangers dant and were said: wife. The Court the deceased’s was case, of this circumstances think “We of man kind what showing any almost evidence in helping relevant be highly would was decedent of a story appellant’s whether to determine the jury truthful, therefore and would assault sexual * * equally Finally, but of justice. the interests serve appeared convincingly if it even important, ac the jury not induce testimony could excluded quit, that he was the suggesting aggressor well have induced to convict might jury appel *7 lant for the lesser included offense manslaughter, instead of second degree murder.” Some of the specific sexual behavior of- fered on behalf of Kagebein in chambers was excluded from remoteness, the jury’s consideration because one incident having occurred three before and years another years about four to prior the trial. Based on record we believe such should be excluded on the ground it was too remote. There is no fixed stan- dard for determining remoteness. It is for the necessary court to consider all of case, the circumstances of the the including nature the act. When the prior sexual misbehavior of an adult relevant to the crime charged, it seems clear that there is a definite relaxation Kerbin remoteness test. N.E. (Ind., 2d 22 In Ward 1970). where supra, appellant was charged child, a fondling male we approved jury hearing testimony a concerning in- specific cident of and, similar unnatural sexual activity of remoteness, issue said:
“Once it is established a mature has person developed to proclivity indulge unnatural acts, sex we are not prepared to unwilling say would be erased of 4 by lapse or 5 years.” Appellant further contends it was error for the restrict, trial judge to in the presence of the jury, appel- lant’s cross examination of the officer who obtained Kagebein’s confession. Pursuant Act 1965 (Ark. Stats. court held a Denno 43-2105), to deter- hearing mine voluntariness of Kagebein’s confession and found that it was voluntarily given. Then the as of its part chief before the jury, Troop- called er Nash and introduced the confession. cross During examination, defense counsel asked Nash if a he court reporter present take down Kagebein’s statement. The trial interceded judge and told defense counsel he would not be permitted the witness question on the circumstances surrounding taking objection by citing After
confession, Ark. Stats. 43-2105. recess, ruled the court and a counsel defense witness could bility questioned on the credi- be recalled admissibility. confession, not on its but in this been limited not have should examination Cross manner. hearing (Ark. purpose statute of our Denno 43-2105) prevent hearing jury is to a from a con
Stats. been determines that it has the court fession before voluntarily given. intended to restrict evidence It is not may jury of voluntari after a determination hear consti has the been The defendant still ness has made. the merits right his case heard on to have tutional *8 jury might weight credibility jury, including the a give the Walker the confession. the voluntariness Lego Two (1972); 40 253 488 S.W. 2d mey, S. Ct. 619 L. Ed. 6 99 404 30 U.S. 2d (1972). interrogate Troop- attempted to When defense counsel obtaining surrounding his pn
er Nash
the circumstances
appellant,
comment-
trial court
the
from
a confession
presence
jury,
deter-
ed,
mined
of the
that
court
appellant’s
vo-
confession was
that
chambers
luntary.
of voluntariness
The factual determination
hearing
by
be dis-
should not
in a Denno
made
by
jury
counsel.
to the
either the court
closed
(Chadbourn
Wigmore
861a,
Evidence,
Sec.
n.
Fayette,
1970);
Revision,
F.
United States v.
2d 728
(1965).
(1968);
Inman,
F.
United States v.
blueprint
admissibility
for
of testi-
As a
further
mony
upon remand, we
that Sheriff
in this trial
note
objection,
testify,
allowed to
over
Gene Garrison was
body
opinion
Wampler’s
“had
it was his
anything
happened”
else
because
been tortured before
body
Garrison
“the
will
after death.” Sheriff
not bruise
qualified
expert
a medical
and the admission
was not
of such
as
improper.
63 Ark.
Redd
(1897).
457,
crime and that the fact that
drunk
him.
have been
alleged
time of the
crime would not excuse
implication
standing
the instruction
alone
it was is
as
that intoxication can have no effect on the
degree
testimony upon
crime of first
murder. If the
re-
justify
instruction,
trial is sufficient to
such an
if
requested,
appellant
would be entitled to an instruc-
capacity
affecting specific
tion on diminished
as
intent.
(1969);
(1912).
Stevens v.
Pless v.
506
Reversed and remanded. part. J., dissents in
Fogleman, C.J., Harris, participating. dissenting. I concur Justice, A. Fogleman, John opinion, except majority part
the result and all of ad- devoted to exclusion vances. In homosexual spite I for these of the revulsion feel unnatural agree premise activities, with either I cannot severely point majority’s holding on this or its result *9 limiting judge’s in of discretion the admission the circuit simply the matter of the of this nature because night activities on the he was deceased’sunnatural sexual killed had been asserted by appellant. put appropriate perspective, the matter in
In order to emphasize on behalf of the state I want to the evidence Wampler’s body, in which as to the condition it was found killing. Wamp- of and the scene the It was shown that: hunting pants jacket pile (as ler’s and in a were found neat they dropped) if taken off to the been and outside right pickup cap truck, of his his side of the on left pair jockey seat; truck, and a shorts under the truck body Wampler’s except pair unclothed, of a was piece panties leg; and boots a over, a torn ladies’ on one and lying draped lady’s nightgown partially under, but weighed Wampler tall, 11" his head. was 5' pounds later 38" the waist. It was and measured around in a with a waistline excess shown that woman could 26" comfortably panties wear the and the maximum nightgown weight would one who could wear pounds. to sufficient the evidence was Even assuming by Wampler so- intent to commit show an assault domy attempt so, no error in there was still or an to do testimony. refusing proffered to admit court’s Ray Appellant testimony about offered the of Carroll Bell in an incident He related occurred October or November 1967. evening, driving
that, one a man a dark-colored top if with white trim and asked Bell he Chevrolet truck job,” trying get persisted wanted a “blow and to years age, go Bell, then with him. Bell said he reported reported mother, turn, who, the matter to his night. it to the Marshal Marshal sometime Town would later that receiving have testified after report, neighborhood he circled the and saw a maroon pickup truck, and white or GMC Chevrolet the driver of trying teen-age girl which was to talk with a on side- driving slowly along walk while beside This witness her. stopped said that he the driver whom he identified as Jimmy Wayne Wampler and summoned him to charge pick up boys,” “Attempting required a appearance suggested Wampler bond, but $25 return bring morning Wampler cash the next when offered give to the next a check. The officer came in said
morning brought bond, the cash for his which he later forfeited.
Appellant testimony also offered of Bob Brown of Gillett, but the court his inadmissible ruled began when he to tell of an incident that occurred some years judge four testi- ruled all offered ‘earlier. mony inadmissible because was too remote in time. put proper perspective, In a further effort matter emphasize judge I must the fact that the trial exercised his inadmissible judicial ruling discretion in *10 because it too remote. prior except
Where of is conduct admissible remoteness, the trial court has discretion in deter- a Ark.]
mining justify whether it too remote in time to admission. Ca State, 420, ton and Headley v. Ark. S.W. 252 479 537; 68, 23; State, DuVal v. Ark. 2d v. S.W. Wilson 171 283
State,
119,
184Ark.
An
examination of our authorities on the
incidents,
admissibility
previous
trial
in a
sex
unnatural
charged
act,
where the defendant is
an
dis-
such
is, indeed, a
that remoteness
factor to be considered.
closes
upon
in Al-
The cases relied
for the classification made
significance
clearly
of the element of remote-
state
ford
State,
Hummel v.
decision in
Ark.
210
196
ness.
entirely
quotation
following
594,was based
on the
S.W. 2d
State,
from Hearn Ark.
S.W.
2d 452:
repeatedly recognized
This court has
and declared
point
crimes,
that the evidence of other
recent
time, and
a similar
nature to the offense then
being
bearing
question
tried, is admissible as
of intent.
such cases
Some
are: Puckett v.
468;
S.W. 2d
Lewis
668;
Monk
130 Ark.
580;
Cain v.
perceive good why no reason the same rule should apply crimes; fact, : to :x courts of other crimes, states have held sex evidence of other *11 916 nature, acts of a similar time, recent in point bearing question (Em- as admissible on the of intent.
phasis mine.) lapse In Hummel time was six months. In Hearn, it was two months. In Roach State, Ark. S.W. 222 in 2d 647
holding particular evidence of similar conduct with other minors charge was admissible where the was con- tributing delinquency to the minor, of a we relied on oth- saying: cases, er
Moreover, such was not inadmissible in case. 196 S.W. so in We held Hummel v. very 594, 596, where, 2d under similar repeatedly situation the court said: “This court has recognized and declared that the evidence of other crimes, time, in and of a similar na- recent point being ture tried, to the offense then is admissible as bearing question of intent.” Also in Gerlach supra, again it was said [217 frequently 40]: “We have held that evidence of other crimes of a similar nature to the one on trial and recent in bearing time is admissible as point upon purpose.” intent (Emphasis mine.) Later, v. Ward question we considered the of remoteness. We there said question raised, that the of remoteness had not been but might appeal. recognized general be on a second We remote, rule such not be too must but said (fondling a male kind child a case of that under. years age) respects governed by gen- not, in all unwilling say eral rule. wereWe once it is es- person developed pro- tablished that a mature clivity indulge acts, sex unnatural would be erased lapse years. or five four It must remembered that, Ward, the evidence had been admitted. did We say ques- not trial should consider the years period tion of remoteness or that a of four to five might say not be too remote. Nor did we that the incidents were, law, as a matter of not too remote. The effect simply decision is to hold that not, the incidents were law, as a matter of too remote. jurisdictions from other
Authorities do not lend full support majority’s statement, to the or eliminate the time 1970), (Ind. Kerlin v. factor. While may appear N.E. 2d 22 *12 support majority position, the it is not question at all clear that the of remoteness was considered all, in that case. did The court it at discuss and the actually upon decision turned the distinction between “depraved cases where a sexual instinct” was involved prior by and the usual case where evidence of offenses the accused is inadmissible to a show that defendant’s char tendency acter is bad or that he has a to commit certain types of crimes. The Indiana followed the of rule Lovely (4th States, United 1948), 169 F. Cir. cert. denied, 834, (1949), U.S. 70 S. Ct. L. Ed. 508 the case used in to rationalize the Hummel-Roach Alford category exception of the “unnatural sex act” from the excluding prior general Yet, as evidence of offenses. rule pointed importance relationship above, of out the the recognized I do time was in both of these cases. not take (I960;, States, F. 1A.L.R. 3d 566 United Evans v. 277 2d decision of Ap 2-1 the District of Columbia Court of totally in peals, harmony to be with our own decisions. actually rejected The evidence nothing there had to do proclivities. merely the deceased’s sexual It related to his language quoted nature when drunk. Evans majority opinion justify the seems to of admission any land of evidence to show “what of kind man the de cedent was.” This the antithesis of our own rules so, evidence.1 Even the Evans court found that the re jected proffer, inartfully broadly stated, should be con explain strued as an general effort to the deceased’s char reputation. rejected acter very We evidence saying; similar Stout v. plant at a where was Ed Baker was foreman at Jones permitted, employed. he have
one time If would tes- discharged by was because tified that Baker Jones job, on “loud and he was intoxicated was belli- very disrespectful.” gerent, There was rude evi- dence to the effect that decedent was intoxicated recently de a second 1As as Sanders v. 432 S.W. 2d case, gree rejected assignment upon murder we an of error based the trial court’s rejection testimony concerning specific prior acts victim's homicide nature, saying aggression and others to show his misconduct toward violent only proof general reputation. properly by could shown when he was shot and that he was belligerent. Ap- contends pellant acts of belligerency Jones’ time he to show discharged would tend always drunkenness on brought belligerency To part establish such a con- pattern Jones. aby duct act is too single illogical require comment. the incident
Multiplying two would certainly not have affected the rule. seeks to this situation with that majority equate in self-defense cases when the
arising
upon
turns
question
determinauon whether
deceased was
accused
This
ad
would not
aggressor.
analogy
require
course,
mission of the
offered in this case.
Of
*13
cases,
previous
such
evidence of
between
difficulties
admissible,
the two
involved is
parties
unless too remote
State,
94,
of time. Crews v.
point
Ark.
14
179
S.W. 2d
261;
State,
331,
Ross v.
181 Ark.
S.W.
is evi
So
25
769.
dence of previous threats made to the defendant
by
State,
Bell
148,
deceased.
v.
918,
69 Ark.
61 S.W.
86 Am.
Likewise,
St. Rep. 188.
even uncommunicated
threats
admissible,
are
self-defense,
if there is
of
any evidence
if
but not
too remote in time to have any
bearing
or to afford
question
any reasonable
or infer
presumption
ence of connection between the occasion when' the threats
were made and the difficulty under
Crews
investigation.
State,
State,
797;
v.
246,
v.
supra; Parsley
151 Ark.
235
State,
Brown
v.
Ark.
5 Ark. L.
S.W. 1051. See
in such
hand,
Rev.
is not competent
On the other
it
207.
cases to show the violent and
character
dangerous
acts,
deceased
evidence of
by
isolated facts
particular
if
least
were
they
not known to the accused at the time
his
Baxter
alleged offense.
v.
Ark.
47;
401;
v.
Taylor
2d
Montague
261 S.W. 2d
879;
Ed
211 S.W. 2d
556;
wards
State,
Day
185 S.W.
185 Ark.
The “self-defense” analogy to lend little sup- port to a declaration of error here. Even if it could be n said that through analogy, proffered testimony admitted, might have been still there remains the question time, which remote too were the incidents whether only subject reversal court is. trial of. discretion abuse. manifest agree majority I with the cannot the issue homosexuality only through jury was before the by state, or that the introduced state evidence offered making this evidence admissible. The certainly shop of the homosexuality. body owner did not dress mention Wampler’s officers had described The they Kage- and its condition it found where when companions descrip- bein’s This them would be. told garments po- tion revealed that the feminine neither n body. sitioned on the as it would have been worn. panties orie.leg gown were on arid the was under the head draped over it so that it was over the brillet wound significant that caused death. It is that there was no bullet gown. opinion, hole in attempted inquiries majority As in the indicated jurors
addressed to on voir dire attorneys homosexuality. defense were the first mention attorneys categorically time, At appéllant’s stated they anticipated that there would be homo- sexuality. Opening statement on behalf of the defen- certainly, very explicit darit raised the terms, issue in show, sáying that the evidence would copulation boys. oral During Trooper with three of the testimony, Stracener’s he was cross-examined to as whe- pulled gown up body ther the could have’been from the question *14 over the head. This and other cross-examina- clearly casting tion were directed toward an inference gown panties Wampler that both the and were on the body wearing at the time the officers saw it as if were he testimony tending them. The to show that he could not my opinion, open not, have worn question them did in the homosexuality. merely It tended to sustain the state’s theory stripped the defendarit and his associates Wampler, attempted put panties the on him and left nightgown the he could not have his worn over face. It certainly did not invite the about the change incidents, or the manner in which it should be treated, appellate certainly either in the trial of court. It highly unlikely did show Wampler that it was wearing the'gown when he was shot. 920 majority
The has overlooked the fact that the state right every has the to and did show circumstance sur- rounding the encounter order to show the motive for killing, required and while the state is not guilt, motive, show in order to establish the absence of motive is a circumstance to be considered with other determining guilt Hogue State, facts or innocence. v. 316, inability 783, 93 Ark. of sidered S.W. 130 124 S.W. The 167. Wampler garment draped him, to wear the over con- along personal with the fact that items of his property missing possession were found fatally certainly him, those who assaulted to show tended robbery a self-defense was and meditation nature and admissible, motive. This evidence was where
pleaded, along show, with other facts circumstances, intent, pre- malice, deliberation and
by showing
assault,
the manner of the
way
weapon
wound,
location of the
inflicting
tending
it was
used
other circumstances
person
to reveal
persons
the state of mind of the
in-
flicting
Nunley
State,
Ark.
mortal
838,
wound.
v.
Ark.
223
904;
State,
S.W.
270
2d
2d
Ward v.
602,
186
208
S.W.
Grays
950;
State,
v.
367,
701;
Ark.
219
S.W.
242
2d
State,
622,
House v.
112;
Ark.
230
S.W.
324
2d
v.
Jenkins
State,
511,
784;
Ark.
State,
222
261 S.W.
Bramlett
2d
v.
1165,
Cheney
226;
Ark.
202
156
2d
State,
S.W. 2d
Ark.
205
tending
S.W.
The evidence
427.
to show that
wearing
garments
was not
the feminine
when
they
placed
shot and that
were
on or over him thereafter
tending
certainly
by
was a circumstance
to show malice
malignant
showing
abandoned
disposition
State,
the killer. Carson v.
Ark.
S.W.
2d
right
short,
835. In
anything
the state had a
to show
parties
occurred between the
and to show the mental atti-
tude of the
accused at the
time. Brown v.
149Ark.
only way
in which
762.
the mental attitude
killing
judged
accused at
the time of a
can be
circumstances,
attendant
and broad latitude
must
upon
allowed in
bearing
introduction of
mo-
Bly tive.
Higdon
77;
2d
213 S.W. 621.
evidence had a
bearing
degree
real
the crime. Smith v.
324 S.W.
341. It was
admissible to show the
*15
physical
inference
from
deducible
circumstances as to
the manner in which
came to his death. Rus-
State,
775;
sell v.
S.W.
Houston
165 Ark.
given proper Phillips consideration. Taylor 883; 408 S.W. 2d 379; Bowie v. 185 Ark. 83 A.L.R. 426. Clearly, could not be to have taken been purpose of, in, introduced for the or have resulted homosexuality Certainly introduction of as”an issue. did conduct of prior invite the introduction of evidence of independent any relationships
the deceased Kagebein to or totally associates, or his un- them, known to missible. which would have otherwise been inad- Although unwilling join I am in an overextension exception against a rather admitting unusual to the rule evidence court’s discretion in eliminating bad conduct the trial
determining whether the acts are time, too remote in I would reverse and remand for a grounds new trial on majority the other stated in the opinion.