*1 544 Except previously
flieting. item.of men- $60.34 say against findings are unable to his are tioned, we preponderance is accord- of the evidence. The decree appellee’s judgment ingly reducing plus modified slight modi- $12,573.11 favor to interest. With this the decree affirmed. fication,
Moore et al. v. State. S. W. 2d 838 Opinion March 1957. delivered *2 appellant. Flowers, for W. Harold Bowlings, Gentry, Atty. Paul G. General; Tom appellee. Atty. General, Asst. appellants, The four J. George Smith, Rose Byrd, mur- Boyd, convicted and Boone,
Moore, perpetration degree, in the committed in the first der robbery, A number of to death. were sentenced of grounds and judgment. urged the for a reversal of
are grant- have that the court should It is first contended petition change a transfer of ed of venue. The a comply that it was statute, with the the case did not persons supported by of two credible not the affidavits 43- 1947, § the defendants. Ark. Stats. related to not testimony (except any the 1502. Nor was there sworn themselves) that to show defendants affidavits preju- county were so of the the minds of the inhabitants 43- Ibid., § a could not be had. diced that fair trial only statements the unsworn 1501. The defense offered appointed attorneys to defend of the who were four they gentlemen had said substance case. These employ attempted unsuccessfully some one and to find feeling county. public survey It in the make a to — opinion a was at least their — quali- one some that their failure to find conclusion willing survey the ex- was due to to make the fied and reports Newspaper prejudice. of the istence of local petition, support of the crime introduced were also reports opinion that these but we do not share counsel’s were biased. competent establish
In the absence prejudice not abuse its the court did existence of rely Appellants change denying a of venue. discretion Ark. solely in Hildreth the decision quite unlike this 2d but that case 217 S. W. 710, one. There the attorneys statement, a sworn submitted questioned they testify, numer- and offered thought county all the accused residents ous not a fair could obtain that members trial, panel try fairly, had stated could not the accused public antagonistic feeling statu- so tory not had. affidavits could the Hildreth case In proffered judge refused hear petition personal denied the basis of his belief reversing fair trial be had. that action a could say change we did of venue not should have been granted; merely refusing held that the court erred testimony. require to hear That decision does change trial court order venue absence any testimony ground statutory that the therefor exists.
A second contention is that the defendants’ confes- *3 proof sions were admitted evidence without other charged offense been the had committed. Ark. According 43-2115. Stats., § the confessions, the a truck on the appellants riding together four were morning May picked up They 1956. 9, the decedent, highway soliciting M. R. Plamm, who was on the a ride away. driving to his short home distance Instead lonely Hamm to his him home the defendants took to a spot farther down the on lane which Hamm lived. There the four men beat decedent with their fists knocking They club, and with a him down several times. purse larger purse, him took from a coin and a to- gether containing dividing money After $10.11. away leaving rapidly, lying drove defendants Hamm by the roadside.
Apart ample from the confessions there evidence Testimony show the offense was committed. independent of the confessions indicates Hamm left morning May go his home on the 9 to into Texarkana purpose paying buying for the a bill and medicine. way Pie was last seen several hours later on his home. missing May appel- Hamm 14, until when two of the Boyd questioned lants, Boone, and were in connection robbery upon another with and admitted the attack Hamm. These two showed the officers where the assault purse place, by had taken and Hamm’s was found body, decomposed, badly there. road His was discov- away. ered about under some brush two tenths of mile appellants and arrested were other two on the Later In view attack. scene of to the also led the officers days, missing five Hamm was of the fact nor- he would body route from the found far his mally returning his and that home, have followed jury war- purse would have taken, the had been Hamm concluding alone from this ranted causes. natural from had not died been robbed 2d cases 32, 229 W. 94, 217 Ark. S. State, v. Ezell there cited. question is whether the in the case serious most permitting that two the State
court erred Boyd, assaulted Boone defendants, of the days after B. five man, Fenwick, another T. robbed Although two crimes were Hamm. attack picked up in that both victims similar, somewhat hitchhiking, connection the record establishes while charging jury two offenses. between the court Fenwick reference Scrape gave that set out an similar to instruction which the 189 Ark. 71 W. 2d “might be consid- Fenwick incident were told that the showing, by you and a show, if it scheme does ered design in the' com- of these two defendants purpose.” *4 and for no other crime, mission of of one crime That a cannot be convicted defendant proof by another fundamental that he committed is every Judge principle by conceded one. of fairness Billings ably Hemingway summarized the rule v. general “The rule is State, 303, 52 Ark. S. W. 574: cases, well in criminal established, civil as as well to the issue. It seems evidence shall be confined strong- necessity for the enforcement of the rule is that the before the should er in criminal cases. The facts laid exclusively of that forms the sub- consist the transaction relating ject thereto. and matters indictment, scope investigation beyond enlarge To surprise subject dangers would the defendant prepare against foresight might which no inno- improper generally cence defend. Under this rule it is if offenses; introduce evidence of other hut facts bear upon charged, proven, although they may be the offense they disclose some other offense. The of admissi- test bility is offered, the connection of the facts subject charged.”
There are, situations course, innumerable proof part which other conduct of the accused charged per- is relevant to the offense therefore is competent, though fectly even it also shows commis- Many sion of another crime. such situations were dis- State, cussed v. 223 Ark. 266 W. 804, 2d Alford again question and need The here is reviewed. evidence of Fenwick whether was admissible design show a scheme and on the of Boone and Boyd in the commission of crime. many admitting prove design
Our cases evidence to naturally corresponding into two classes, fall to the two design commonly senses in which the word First, is used. design may simply indicate intent or conscious knowl- edge, says thing by design as when one that a was done usage rather than accident or mistake. This com- involving may mon in cases conduct which be either depending guil- innocent or criminal, the accused’s ty knowledge typical or intent. A instance is Johnson 75 Ark. S. W. 905, which involved a charge larceny growing out of an elaborate confi- game. holding dence of similar conduct design (in intent), was admissible show sense ‘‘ general said: rule, of is that course, one crime proved tending cannot be as but another; when question performance intention of acts be- comes material, then similar acts which tend to show present whether an innocent be- criminal intent frequent uttering come admissible. This is in cases of forged passing instruments, counterfeit coins, receiv- ing property, applied larceny stolen and is well as *5 Wigmore, ques- other 1 crimes. Evidence, § 346. The recently tion was court, considered this rule this question announced: ‘When there is a as to whether or charged by not the crime was accident or mistake, or
549 that such act fact motive, and with intentional by the de- committed acts a series of similar one of was system prove it tends because admissible, is fendant (82 586 design.’ State, Ark. v. 72 Howard show design using Among 203).” the word cases other W. knowledge State, guilty Ross are intent or mean and Norris v. Ark. S. W. 398. 280 S. W. Ark. 484, apparent not quite as these do that cases such
It is position at bar. support in the case the State’s appellants Hamm’s only connects these confessions. admissions arises from their death jury, accepted by proof, which must have That the avowed for men beat their victim shows that these question purpose robbing that of is him. The not it is Rather, Hamm was attacked. which intent with place it it was did, if all; whether attack took unquestionably intent and constituted criminal done with appellants robbery. in their confes- insisted True, but that Hamm, kill not intend to sions that did effect that an instruction to the eliminated issue was necessary specific if the life take life is not intent to robbery. perpetration unlawfully taken in is plan design means the word its other sense out in the to be carried formed the mind and action undoubtedly design sense future. Proof of this planned competent, was ad- for the that a crime fact actually committed. it vance tends to show that was design plan presence not to do a to do or “The probative given that the was act has value show act always plan A car- not done. fact done or ’’ likely to be carried out. but it is more or less ried out, (3d Ed.), Wigmore § see also 300. Evidence, § 102; on approved principle many occasions. We have per- example, prosecution murder in the in a For prove proper petration it for the State planned although in advance, that three robberies attempted. only State, 34 649. Ford v. Ark. one was prosecution receiving Again, cattle the in a stolen engaged in that the accused could State *6 550 pay
business and for offered a witness a head had. $8 any might cattle that he and deliver to the steal Long State, 1089, accused. v. 192 Ark. 2d 67. 97 S. W. point State, v. 153 Ark. Other cases include Nichols State, 467, 258 716; 240 S. Middleton v. Ark. W. State, S. cf. Jenkins 191 Ark. 995; W. v. 2d 78. W. apparent proof It is likewise the Fenwick scope robbery does not come within the of this second aspect design. The Fenwick incident occurred five days tendency after Hamm was it killed; has to show robbery planned of Hamm advance. independent actually plan, There is no evidence of an upon formed the attack ahead, for either victim. plain enough robbery It of Fenwick was competent design not to show either the sense of crim- premeditated inal intent sense of a scheme. jury permissible If the not draw could either those in- proof subsequent ferences from of the crime, of what only possible value was the to them? The proof answer is that this the fact established that Boone Boyd likely were criminals and were therefore to be guilty they being offense which were tried. In ing opportunity short, afforded of find- Boyd guilty upon Boone and of murder the basis committed on another oc- casion. reports
We have in our
more than a
deci-
hundred
general subject.
may
sions on It
be
conceded,
supra,
we indicated in case,
these cases
Alford
principles
cannot all be harmonized with the
stated
there
or,
indeed, here,
one another. The sub-
ject
especially apt
is one in which confusion is
to arise.
As we
when
have
the1
seen,
offense involves
conduct
may
depending
guilty,
be innocent or
it is
intent,
proper for
the State
offer evidence of similar con-
duct
accused in order to establish the
necessary
But
intent.
once the statement has been
made that evidence of other offenses is admissible to
applied
inadvertently
may
rule
intent,
show
applicable.
really
which it
situations to
departure
Perhaps
conspicuous
from the
most
supra.
Scrape
general
There,
occurred
rule
*7
filling
robbery
the
prosecution
station,
of a
for the
in a
robbery
attempted
prove
an-
of
an
was
allowed
State
night.
following
held
filling
"We
on
station
the
other
citing
State, 184 Ark.
Wilson v.
admissible,
the evidence
194,
186
State,
v.
41
and Sibeck
Ark.
764,
W. 2d
119,
S.
apparent
deci-
neither
is at
That
unconnected
do
themselves
two
design
unequivocally
decided
or
establish
scheme
Yelvington
Ark.
701.
S. W.
charged
theft of mules.
with the
There
accused
judgment
had been
because the State
reversed the
We
prove
allowed to
stolen animals
when the
possession
pos-
found in the accused’s
he also had in his
session some stolen sets of harness. Chief Justice Mc-
analyzed
in detail:
issue
“We are
Culloch
opinion
that it was error to
other
admit
appellant’s possession
property
thefts and
other
adopted
very
which had been
This
stolen.
court has
declaring exceptions
general
liberal rule
rule
against proof
proof
of other crimes.
have
We
said
of other crimes
aof
similar
nature, shown
have
may
committed about the
time,
same
be admitted as dis-
closing
good
faith or
intent of
criminal
the accused,
plan
system committing
or
a scheme
or
particular
crime, or to show a connection
between
investigation.
(Citing
crime and the one under
seven
cases.)
present
case
how-
not,
does
*8
exception.
fall
ever,
within the
The
of the theft
alleged
of the harness had no connection with the
theft
place,
of the mules. It
at a
occurred
different time and
tendency
and under those circumstances it had no
to es-
plan
tablish
or scheme which included the theft of the
stock, and
no
formed
connection with
incident. The
testimony
theory
court admitted the
on the
that it tended
good
to establish the
bad faith of the accused,
but
proper
purpose.
we do not think that it was
for that
assignment
squarely
The
falls
within the
of
decision
Mays
coui't
State,
the recent case of
v.
553 holding robbery. perpetration mitted concerning testimony offenses, other admission of the including prejudicial robbery, “There is we said: hill- and the crimes these various between no connection necessary, only, ef- ing and the McDermott, desperate char- was to show fect of this appellant There was criminal. confirmed as a acter up appellant purpose held question for which while still him, robbed and that he Chance, attempt- who hilled the officer crime he the scene of the him.” ed to arrest many holdings effect. Re- to the same are other
There
be shown in a
or bridles cannot
cent
prosecution
of saddles
thefts
v. State,
Dove
37
theft of horses.
Endaily
Whether appar- Byrd, the later crime, and ently who had impression question a of first this state. proof robbery admitting in- of the Fenwich the court jury that the could not be con- structed Byrd. possible It is of Moore course sidered as to jury obey the that the able to court’s admonition adversely Byrd. and were influenced as to Mooré proof the other hand, On admission Fenwick prejudicial Bóyd, as to was Boone and and the fact that imposed guilty four found defendants all every prejudi- penalty in that the the same cial effect of the case indicates testimony may have carried over to the other two defendants. particular
In the circumstances of this case think prejudicial was four error all defendants. It is quite possible that if the Fenwick attack on had been men- only casually prolonged tioned the course of this trial, Byrd as to Moore and its effect would have been over- jury. come court’s admonition how- That, is not the situation at The ever, record all. discloses question beyond prove the State undertook to, and did, every beyond the Fenwick a detail and doubt. Before it reasonable had even been shown how met Hamm death Fenwick was his called as witness length Boyd and described how Boone and beat him forcibly with a claw hammer and took his wrist watch containing an and wallet 1891 silver dollar. Seven law investigation officers enforcement testified about except police photog- all of death; of Hamm’s them rapher also testified about the Fenwick crime. The cap wrist watch been found in Boone’s and was in- troduced evidence. silver dollar traced, was re- covered, identified, received in evidence. The offi- search cers described their hammer and account- produce their ed for failure to it as well. A substantial portion was the trial devoted to the State’s meticu- proof crime, lous the later was and it mentioned sev- prosecution’s arguments jury. eral times in the say proof upon It fair to that the of the attack Fenwick even more conclusive than Hamm, for the latter involved circumstantial evidence proved by testimony. while the former direct “Where the of an effect erroneous instruction or ruling might prejudice, of the trial court result in *10 judgment must rule is the be reversed on account of ruling, affirmatively appears such unless it that there Ark. Crosby prejudice.” sincerely say conscientiously and 380. cannot We W. possibility the eliminated admonition the court’s prejudice Byrd the from resulted Moore relating attack to the brutal voluminous in acted concert of the defendants four Fenwick. All robbing beating it was shown When Hamm. would Fenwick, it robbed also men beat and two these two that the other conclude the natural for pres- joined attack had the would have open not to doubt are matter thus the is ent. When affirmatively holding shows that the record warranted in prejudice. absence the
Reversed. opinion joins except Mr. in the with re- Justice Holt change spect of venue; to the trial court’s denial opinion point agrees concurring this he with the The Chief and Mr. Justice McFaddin. Jus- Mr. Justice judgment. Millweb would affirm the tice (concurring). Ed. F. Associate I Justice McFaddin, entirely case, concur the reversal this but for reasons opinion: majority different from those stated in the hence separate concurrence. I. Acts A Similar Nature. The ma- Of Proof Of reversing jority judgment the because of the admis- testimony regarding sion attack on Mr. Fen- majority says any wick; and the admission of tes- timony regarding the Fenwick incident violates holding Court v. State, of this 223 Ark. Alford I 266 S. 2d 804. dissented the Alford case; W. opinion majority present I maintain that case my does not answer cited in cases Al- dissent ford I think the Trial Court case. was correct in the allowing testimony regarding case bar in judgment Fenwick and I incident; would reverse for that reason. Change My II. Venue. vote to reverse Of
judgment in the case at bar because of the failure grant change of the Trial Court to of venue. I think *11 556 purview change
the matter of of venue falls within the holding of our in v. State, Hildreth 214 Ark. 2d 622. S. W.
The situation ease at bar needs to be stated regarding change in some detail motion for employ- venue. When the were defendants unable to appointed splendid lawyers the Court counsel, four represent bar Texarkana, Arkansas defend- jointly severally. attorneys ants, and These wmre Den- nis K. Williams, Joe Van and Rosenblum, Johnson Wil- attorneys liam H. Arnold III. Each of as served, these court-appointed compensation any counsel, without exemplified legal pro- kind, and the fine ethics of the acting fession pacity.1 officers of the court in such ca- attorneys The Trial Court advised the four they together, -wouldwork but each -would take the re- sponsibility particular for the individual interest of one against feeling defendant. The four these defendants high County was so Miller that the defendants were kept county place in another and the of confinement kept secret. The defendants were at one time con- jail Hempstead County fined and at one time they placed Penitentiary safekeep- were in the State for ing. attorneys When the desired consult with their place clients, were taken to the the defend- where having ants were than confined, rather the defendants brought County. back to Miller All of this is reflected in the record. petition attorneys change filed a for of venue,
which reads:
“Come the defendants, Moore, James E. James Boyd, Rogers Henry Byrd, jointly Boone and Willie and severally, respectfully petition change and the Court of venue and state: petition change jointly
“This venue made severally by each and all of us. employed present defendants —or someone for When the them — perfect appeal, court-appointed counsel Court released counsel. robbing charged Negroes are “We are aged man. murdering white Almost an Hamm, M. E. County, Ar- upon being immediately in Miller arrested May, day were all taken we 15th on the kansas Arkadelphia, Arkansas, County Clark Jail days, thereafter we several where remained *12 Penitentiary, where Arkansas State to the transferred days, were trans- we thereafter and we remained several Hope, Hempstead County Arkan- Jail at ferred days. were advised We we remained several sas, where places for safe by these taken to officers we were keeping. arraigned were time, the first were
“When we Hempstead by secretly brought from the Officers County Hope, County the Miller Jail Arkansas, to Jail at appointed Attorneys were for Texarkana, Arkansas. at with one the attor- after brief consultation us and guilty neys, plea immediate- a were we entered Hope, Hempstead County ly at Jail taken back to the during informa- an amended meantime, Arkansas; again secretly against us and we were tion was filed arraigned brought Arkansas, and Texarkana, County, placed quietly Jail, the Miller Arkansas in Texarkana, Arkansas.
“Upon why inquiry as to we were from officers County, away Arkansas, we were ad- taken from Miller feelings of the inhabitants vised the minds against prejudiced County, us Miller Arkansas so danger great of mob violence. that there newspapers Texarkana, Arkansas-Texas “The killing published E. Hamm, that we had confessed to M. confession or state- fact, when truth and such by either or this erroneous us; ment made all publication Mil- inhabitants of the minds of the caused prejudiced against County, Arkansas to become so ler a im- we cannot receive fair and all each and of us county. partial trial in said each of us believe the minds
“We and preju- County, Miller Arkansas are so inhabitants against of us believe that us that each and all diced impartial County, cannot be had Miller fair trial Arkansas. Boyd, Rogers
“Wherefore, Moore, James E. James Henry Byrd, jointly severally, Boóne and Willie pray the Court order removal of criminal cause to county some other for trial.” petition change supported The of venue was not by required by of witnesses, affidavits law, appointed attorneys the admitted reason that the any per- Court stated that were unable to obtain survey pre- County to make a Miller sons as to be so pared testify published attorneys trial. The days, in the Texarkana notice Gazette for three ask- ing anybody employment who wanted to obtain making survey attorneys. would one of the contact person Any answering promptly the notice refused when attorneys he found out what kind of work was. it then *13 Employment again, contacted the Texarkana Office, and anyone unable to obtain were Here is who would do work. statement that Mr. Dennis K. court- Williams, appointed regard to in counsel, made the Court to the petition change of venue:
“My name is Dennis K. I am Williams, and one appointed attorneys represent to defendants; these very early stages suggested and in the there, I to the Prosecuting Attorney’s Court and also office that going try get change we were to to a and venue, dur- ing why, people, I time, tried to too, contact survey county Avouldmake a to find out the feeling people, get party of the and I was able to one Thursday, he said would do it. And as late as last why, ty party survey said he had made a of the coun- “niggers”
and that all that he contacted said the ought hung; party to be burned and that was also my past Saturday morning, to come to office this and late]- Monday morning, than no event and I have gentleman. Friday up even seen the I saw him here at I Courthouse, but have not him seen since. give “Another man that I contacted said he would — Thursday morning past me his answer this Thurs- — up morning the Court- here at day met us and lie attorneys him in the li- with talked four and we house, and and brary, all, need him what we would and told had why, and said he called me he afternoon, that talked have he couldn’t and wife said his wife, his part any with it. do to people, and of these stated, some
“As Mr. Johnson helping good they my me, not mind would friends, said they re- and color, of a different this a horse but was partake thought resort, it. we to And a last fused paper I I believe we would advertise I ad; the sum and can kind of substance state persons survey Miller make a Coun- wanted credible to sign ty we didn’t even issue, a on controversial gave room number that; Mr. Yan Johnson’s you he about the and as has told Bank, State National impos- people and it called; that have number of get people think be whom I credible sible us to persons county survey time, make a of the opinion public few I if some believe subsides might get I has able to this. know there months, we diligence attorneys. have us We average one and two conferences on the of sometimes day. I all to- times a mean conferences where we were gether, telephone that have been made. Hard- calls ly day goes I don’t call one of them or just have don’t call me about this matter. We difficulty; get far we have not been so able fact, county survey anybody make for us.” *14 paid ordinary for a This not the case counsel inability comply making a statement to to defendant court-ap- the with the We have here case Statute. pointed informing the Court that the sentiment counsel people County that was of such fever unwilling survey, em- to make even when offered lawyers, ployment. four These fine officers of the everything they comply could to the Court, did change Statute; of the and the of venue formalities granted feeling the been because the should have strong County that the defendants to be was so person County safekeeping; kept and no out willing County the tify to come into the Court and tes- feelings populace as to the of the of Miller Coun- ty. putting say It is before to that the form substance petition change of venue should have been refused legal complied because the formalities were not with. I submit State, that the case Hildreth v. 214 Ark. points way necessity 2d S. W. change of a of venue the case at In the bar. Hil- speaking compliance dreth case, of the with the (§ regarding electors), Statute 43-1502 two we said: premise evidently “The statute is based on the change the accused is entitled to when hos- venue public impartial hearing tile possible. sentiment makes an im- grant pe- patently illogical
It would be tition when obtainable, affidavits are but to refuse re- public feeling antagonistic lief when so the af- cannot be had.” fidavits public the case bar the as shown sentiment, court-appointed antagonistic counsel, was so refused, people to make the affidavits or make the sur-
vey. change I Therefore, submit venue granted. have should It is for this reason alone I vote reverse the conviction. (dissent). Chief Justice it "While Harris, Carretón dissent, forms reasons I for this should like express my disapproval to first law as established case of 223 Ark. 330, 266 2d S. W. Alford presented 804. I consider that no better evidence can be particular to indicate one’s in a intentions instance, upon than establish same or similar acts other evidencing occasions the same I think intention. particularly involving true crimes sex, as the lust of perpetrator only temporarily of a sex crime is sa- urge tiated after the crime is consummated. The prompted dastardly again again, act will come proper and will be acted under what is deemed conditions and circumstances. recognize I
However, that the rule announced in the case is the established law in this until state over- Alford
561 my based at Bar is dissent the case ruled, Fen- of the the fact that I consider the evidence despite robbery the rule wick to be admissible Alford supra. Quoting which from case, v. the Alford Dulaney, quotes turn from an earlier case, State speaking, “Generally Ark. 158; S. W. competent prove specific crime to the
of other crimes is (1) (2) charged in- when to motive; it tends establish (4) (3) com- accident; the absence of mistake or tent; plan embracing of two mon scheme or the commission proof other that of or more crimes so related to each (5) identity of one to establish the the others; tends person charged with the commission of crime the on trial.” charged
The information in this case defendants degree, crime of murder in the first committed perpetrating robbery. while the crime of said Under necessary information, it was that the State attempted defendants robbed or rob the deceased. presented by most The the confession of forceful evidence was State they each the defendants that robbed standing Hamm. This, course, alone and uncorrob- was orated, therefore insufficient establish fact. It was
necessary that the State offer additional robbery. corroborating robbery The evidence pocketbook empty is thin indeed. Hamm’s found near the scene the crime, and his wife testified purpose going pay he left home for the to town to light get bill some but she medicine, did not tes- tify pocketbook. any money that he had in his There practically no evidence record, with the ex- ception confessions, Hamm rotted, ivas by assault on him was made the defendants in attempt an rob him. testimony of Fenwick established that within days (five)
a few of the death of Hamm, two of the de- (Rogers Boyd) pulled up Boone fendants and James questioning while It the officers these two defendants robbery Hamm, about the Fenwick learned Boyd taken Boone and and were location where Hamm left. beaten *16 n wherehe was go waiting and “Let’s to bus, said, ' big- Hope.” accordingly got in with them. “The He stop suggested gest boy case, nature and that we for a get got back he in, when we started to we all and out, hammer and said out with claw reached and came right Hope, you’re going going to Hell ain’t but to ‘We quick’.” he struck and Fenwick stated that hit two men then and fell down. The hammer, with the claw pocketbook. time, About that wrist watch and took his coming started defendants saw someone and one got I’ve to kill old “Wait, the other said but off, kept hitting yet,” at him his and until son-of-a-bitch companion driving away. Then he ran and started caught truck. opinion, certainly my admis- evidence,
This against being directly re- these two defendants as sible in other it “inde- intent; words, to the issue of is lated pendently — the main issue relevant relevant” to point case that it evidence to a material is g., Hamm com- at mitting e. that defendants killed while Bar, robbery. attempting to commit the crime simply the evidence would not be admissible course, Of that were evil men. case, show Alford majority rely, the ravished witness was which the present testifying in Court that she had alive, still opinion, raped. Therefore, as set out there been was no need in- of further evidence to show Alford’s he one would contend that intended some- for no tent, rape. agree thing I than would likewise if other testifying by he had been robbed Hamm were alive evidence of the Fenwick defendants, would under the herein But, inadmissible rule discussed. appear contrary, the victim and so cannot dead, happened, repeat, testify and I as to there what (other confessions) than substantial evidence2 is no majority disagree emphatically man the fact a I body normally missing days, a route not taken his found on for five empty home, purse road found on the side of the going and his alone, body, evidence, standing is such mile from two-tenths of a concluding individual had warrant a as would robbed.
establish that the deceased was killed while the defend- perpetrating robbery. ants were the crime allege, any The information does not is there nor evidence in a record to establish defendants
grndge against
previously planned
or had
deceased,
degree
allega-
murder
him,
kill
State’s first
accordingly
tion must
be sustained
of the rob-
*17
bery.
jury
The Court
that
cautioned
this
only
against
could
be
involved,
used
the two defendants
only
showing gen-
that
further,
it was
relevant as
design.
frequently
eral scheme or
evidence has
Such
purpose.
admitted for such
In Casteel v.
period shortly of time before the one question closely burning. here, and connected with its testimony, proper This under instructions from the permitted go jury solely Court, to for the purpose appellant’s determining of motive, de- scheme,- ’’ sign properly and we think it intent, admitted.
Again, the case of Davis v. State, 182 Ark. 2d Davis S. W. was convicted of the crime of murder, sentenced death. The evidence showed place that he and two others went to the of business merchant in North Weed, J. J. Little Rock, and attempt A engaged him. rob killed Weed, in an while night, and on the same certain Lee testified Joe place he was business, a few blocks of within Weed’s up by robbed. He identified Davis held three men and participating. testimony over the This was admitted as objections The Court admonished the defendant. only testimony for could considered question purpose of identification and * “* * place entering of busi Weed’s intent * * Quoting from the late ness Justice Smith: alleged “The indictment attempt was killed in an Weed intent which him, to rob and it was this unlawful unnecessary made it for the State to the delib premeditation required would be eration and which # * * degree. It es establish murder the first ivas appellants sential to show that were in the State place purpose committing business Weed’s * * *” supplied.) robbery. (Emphasis the crime of competent “The to show the was, therefore, appellants engaged night, in which business *18 probable purpose and the for which went to Weed’s place of business thereafter.”
The fact that the
offense admitted
oc-
evidence
subsequent
appellants
curred
to the crime for which
are
being
Scrape
tried is of
effect.
it was actually case, an isolated occurred because of “over- majority Scrape sight”. Yet do overrule the decision. appears relating me that the law
It the ad- particular offenses in the trial of mission of similar *19 highly apparently now so con- cause, technical lawyers judges, trying flicting, guish plete to distin- only cases, the various can reach a com- between of bewilderment. The net result will be that state permit never the introduction courts will of evi- trial by a crimes committed defendant which of similar dence design might intent, scheme, tend to well strongly I feel such under submission. ease in the trial of criminal case. invaluable to be opin- the reasons herein I am of the out, For set relating ion bery to the Fenwick rob- competent and relevant and the evidence, admitting accordingly I did not err Court same. respectfully majority. dissent to the views joins
Justice the dissent. Millwee Transportation Company Mo. Pac. v. Guthrie. 5-1197 299 W. 2d 829
Opinion delivered March 18, 1957. Wiley Henry ap- Bean Barber, Thurman, & pellant. . $ Downie;
Thomas E. Booth, Lee Tulsa, Okla., for appellee. George personal injury J. This is a Smith, Rose brought by
suit Yesta Jewell Guthrie and her husband injuries to recover for sustained Mrs. Guthrie as she alighting appellant’s from the bus at Clarksville. appellant’s It is negligent asserted that the driver was failing to assist Guthrie, Mrs. whose vision is serious- ly defective. The case was submitted to the under