*1 on to the Committee will be sent order A of this copy Conduct. Professional STATE of Arkansas WHITE
Charles Lee CR 86-34 Arkansas Court of
Supreme 20, 1986 October delivered Opinion denied November [Rehearing 1986.*] rehearing. grant would *Purtle, J.,
Goodwin, Moore, Hamilton, Hamilton & Donis for B. by: appellant. Clark, Gen., Holder,
Steve Att’y by: Theodore Asst. Att’y Gen., for appellee. Chief Justice. issue Holt, Jr., primary
Jack presented this is whether appeal intoxication consti murder, tutes a defense to degree second as it negates *4 existence the requisite intent. We hold that intoxica voluntary tion is no longer available as a to defense criminal prosecutions, overruling our previous decisions to the contrary and those of the Arkansas Court of Appeals. White, Charles Lee appellant, was charged with first 15,
degree 1985, murder for the January death of his beating wife, Joyce He Cummings White. was also with charged an being habitual offender. A convicted White jury of second degree murder and he was sentenced to 40 years imprisonment. Our jurisdiction is pursuant Ct. R. Sup. 29(l)(b).
I. VOLUNTARY INTOXICATION argues on Appellant that the trial court appeal erred by failing give his requested instruction on the defense 134 4005.1, Criminal, and by set out in AMI intoxication as
voluntary not a defense intoxication was voluntary instructing jury underlying question murder. The degree crime of second intoxica- voluntary the defense of existence of very concerns designed Legislature of an act of the Arkansas light in tion intoxication. voluntary defense of self-induced eliminate the 67, 684 Ark. S.W.2d 285 in Mosier recognized We the defense of confusion surrounds that “some (1985) 810 we re-examine might and we stated that intoxication” voluntary As the issue is squarely case. our position appropriate case, to resolve in this we now take the opportunity presented confusion. intoxication, law, while no evidence of voluntary
At common crime, show the defendant was for be admitted to excuse could for the crime. necessary intent forming incapable specific also Olles & Anderson v. (1879). Ark. 341 See Wood v. 34 571, With the adoption 542 S.W.2d Code, defense of statutory voluntary Criminal created, on common law. Act fashioned in part intoxication was Ann. 41-207 provided: 280 of codified at Ark. Stat. § affirmative defense to a prose- elf-induced intoxication is an “[s] or knowing existence of a negates purposeful cution if it mental state”. later, 101 of the Arkansas
Two Act years 41-207 to delete this subsection. Act Legislature amended § Intoxication was entitled “An Act to. . . Eliminate Self-Induced . . .” as a Defense to Criminal Prosecution. clause which read:
The Act included an emergency found and determined the General Assem- It hereby is detrimen- that the defense of intoxication bly of this State in to the welfare and of the citizens safety tal excused from the consequences that criminals are at times of their voluntary criminal acts because merely of their to eliminate the necessary intoxication and that this Act intoxication. . . . of self-induced or voluntary defense *5 action in Legislature’s This court first interpreted defense in Varnedare v. intoxication as a eliminating voluntary 596, State, (1978) 57 where we held: 264 Ark. 573 S.W.2d 41-207 to intoxi- By amending remove self-induced § defense, effect, cation as a in statutory legislature, reinstated any Arkansas common law on the sub- prior . ject . .
Therefore, under either the
of 41-
statutory provisions, §
207,
be,
as the
involved
parties
thought them to
or under
law,
the case
State,
as
in Ol les &
expressed
Anderson v.
defense of self-induced intoxication was available to the
if it rendered
appellant,
him
incapable
forming the
intent that was a necessary element of the crime.
This
has been
viewpoint
followed
consistently
this court.
State,
252,
See
273 Ark.
Morgan
Ark. App.
After re-evaluating our cases and those of the Court of Appeals, we are now convinced that our court was wrong provides person Section 41-1503 also degree they that a commits second murder if “purpose” causing court, act with the physical injury. death or serious The trial however, “knowing” based their decision on the fact that a state of mind was all that was required, applicable. not all that was
136
Varnedare when we held that the elimination of 41-207 § reinstated the common law defense of intoxication. voluntary
It is a
of
construction that
principle
statutory
a statute
law,
will not be construed as overruling a
of common
principle
“unless it made
by
act that such a
in the
plain
change
Const.,
established
added)
law intended.''’ (emphasis
Starkey
Elcon, Inc.,
958,
Inc. v.
(1937) we said:
It has long been the rule in this state that ‘A statute
will not be taken in derogation of the common law unless
the act itself shows such to have been the intention and
object of the legislature.’
It is also general
a
“that the
principle
of a statute
repeal
which
the common law
abrogates
operates
reinstate the
rule,
common-law
unless it
that the
appears
legislature did not
intend such
reinstatement.” 73 Am Jur 2d Statutes
pp.
§
Olson,
505-06 (1974); Johnson v.
ture,
It is impossible to impute general assembly the intention, in repealing parts the code which had been unconstitutional, declared to revive earlier laws which might render the amended law liable to the same objections.
The intention of the Arkansas Legislature in 41- repealing § 207(a) is from apparent the title and clause of the act: emergency they intended to eliminate the defense of self-induced intoxica- tion in criminal prosecutions. By reinstating the common law rule, defense to which intoxication as a permitted voluntary intent, crimes this court has requiring specific perpetuated We now rule of law the legislature effectively repealed. which reverse is not a our and declare intoxication position Likewise, defense in made criminal the distinction prosecutions. *7 with a by the court of crimes committed appeals between state and crimes committed with a “knowing” “pur- mental defense poseful” mental state is of no because this consequence no longer available.
Since the error here is trial complained of that the court failed to the instruct that intoxication a defense jury murder, to second degree holding. we affirm trial court’s raises other this appellant several issues in appeal including the and voluntariness of a he admissibility statement officers; gave to police presentation that statement at the trial; items; the admission into evidence of certain and the court’s failure to a appoint psychiatrist to examine him. are all They without merit.
II. APPELLANT’S CONFESSION contends appellant that his confession not was volunta- and rily made and intelligently therefore should not have been admitted.
We review the independently of the circum totality stances surrounding confession to determine whether an ac cused knowingly, voluntarily waived his consti intelligently Orr tutional v. rights.
(1986). the factors Among considered in determining validity of a education, confession are the age, of the intelligence accused, the advice or lack of advice of his rights, constitutional detention, the length of or repeated prolonged nature Id. use of questioning, mental or physical We punishment. do not reverse the trial holding court’s unless it is clearly against a Harvey preponderance 19, 611 evidence. v. S.W.2d factors,
As to the enumerated White was 47 and twice; illiterate. He was advised of his he was not detained rights for any length time prior confessing, but rather began making statements after officers arrived at his immediately was
home; was no allegation questioning and there or physical punishment. or that there mental prolonged still White was about whether was conflicting testimony There in testimony his Conflicts when he statement. gave intoxicated we defer to the superior court to resolve and are for the trial Harvey supra. regard. of the trial in that judge position circumstances, the trial on the of the totality Based not against the confession was court’s decision to admit of the evidence. preponderance confession, of his In a related attack on the admissibility could not recall contends he told officershe appellant consistently In his wife became intoxicated. what after he and happened about what response repeated questions happened, his he he hit and kicked “guessed” made several statements that wife, remember. claims these state- but he could not Appellant on recollection but were rather any ments were not based *8 from leading questions and were speculation produced by officers. leading during the officers did ask
Although questions an recol interrogation, appellant displayed independent gotten lection of the events. He admitted that he and his wife had fifths of and fight whiskey, into a after the two of them drank two and, that he hit kicked her that he remembered specifically, Also, her in her bleed. when the hitting jaw making lip his morning awakened the next and discovered that wife, him, dead, his who was in bed was he told landlord killed his wife. call the sheriff and an ambulance because he had This is without merit. argument
In final attack on the of his confes- appellant’s admissibility sion, he in his objects ruling to a that a reference pretrial statement to a between him and the victim was fight prior admissible. That of the statement provided: portion Did she ever real
Q: tell that hurt her bad? you you I,A: she didn’t tell me that I hurt her last before we night I bad she
got fight into a she told me hurt in here real hurting go so I asked her if she wanted to Room because we owed Jonesboro to Emergency so much down here she said I’ll hospital yeah at her over take there that at Jonesboro over morning there at the Room she had four ribs broke Emergency and one of them was in her over there sticking lung and it draining had been or I leaking something now he forget what said. had, was,
Q: The time that this fight this was a that you have last you previous fight night, right? A: Yes.
Q: You had this some weeks ago?
A: Yes.
Q: During that fight you had hit her and broke some of
her ribs?
A: Yes sir.
Q: And one of them was severe it had enough
punctured a for? lung
A: Hum-ah.
Q: Ok and took her to you hospital Jonesboro then? A: Yes sir I went to Room. Emergency
The trial court held that the record testimony by clerks at the visited hospitals admitted, the victim would not be but the appellant’s confession concerning would be prior beating admitted.
Uniform R. Evid. 404(b) provides: crimes,
Evidence of other wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in however, therewith. conformity It may, be admis- sible motive, other such purposes, as of proof opportu- for intent, nity, preparation, plan, knowledge, identity, absence of mistake or accident (emphasis added). in
Although we past have approached question under admissibility 404(b) Rule mechanical by “fairly for approach” searching one of the listed Price v. exceptions, 140 1980); 1172, (Ark. 394
State, App. 599 S.W.2d Alford we think the 330, (1954), 804 State, 266 S.W.2d v. of Rule the drafters by the one intended better practice only to be exemplary list of exceptions is to consider the 404(b) about testimony we find the Accordingly, exhaustive. and not other for some purpose as it is long admissible so beating prior he acted in order to show of the person the character than prove in therewith. conformity testimony introduction of 404(b) permits
Rule to the main relevant if it is activity “independently other criminal some material in sense of tending prove issue —relevant criminal the defendant is a than merely prove rather point be admissible with a proper of that conduct may —then evidence Ark. Price v. instruction the court.” cautionary Inas (1980), supra. quoting 597 S.W.2d Alford testimony trial court that the we with the agree much as admissible, to a limiting would have been entitled the appellant which was to be testimony instruction on the for purpose requested, such an instruction was not considered. Because Ark. Miller v. cannot now claim error. in both wife was the victim The fact that appellant’s as it reflects a admissibility specific incidents is the basis for its with sort of crime in question to commit the propensity particular to child analogous In the situation regard, the same this person. we have evidence prior abuse and incest cases where permitted children in the household same child or other similar acts with the because, here, with toward a act specific as show a they proclivity whom accused has an or class of person persons in those cases reasoning provides: intimate Our relationship. for the in was not introduced testimony question crime, but to show the a substantive purpose proving relation and of the their familiarity parties, disposition other, and as corrobora- antecedent conduct towards each witness touching tive of the of the testimony prosecuting inti- the crime in the indictment. It showed the charged as characterizing of the and was admissible macy parties, conduct of the regard acts and previous parties offense charged. particular
141
101,
State,
2 (1986), quoting
288 Ark.
702 S.W.2d
Johnson v.
also,
State,
70,
v.
Ark.
146
See
(1912).
Williams
103
S.W. 471
State,
479,
264 Ark.
572
402
Van
(1978);
Limber v.
S.W.2d
State,
143,
v.
16 Ark.
S.W.2d
and
App.
(1985);
Sickle
308
State,
282,
(1984).
v.
11 Ark.
The statement by appellant approximately wife, her two weeks death he beat his is prior probative severely of the charged the crime and is appellant’s participation 404(b). therefore admissible under Rule remaining only is whether or not this evidence should have been question excluded because the prejudice brought about by exposition this other was not offense balanced sufficiently probative its value. See Rule 403. We hold that the value probative evidence outweighed any prejudice.
III. PRESENTATION OF CONFESSION claims it was error for the court to permit Hicks, Lieutenant Allan of the Greene Sheriffs County Depart- ment, to summarize his confession for the jury prior playing of the recorded statement. objects to this as Appellant “double dipping” maintains that Hicks embellished the statement and created a danger of unfair prejudice outweighed which probative value the evidence. sound, judicial
It within the discretion of the trial court to limit the introduction cumulative testimony this discretion is not controlled unless it has been manifestly abused. v. McMillan
(1958), 160, 179 quoting Sheppard Ark. S.W. 168 In Beed v. 609 S.W.2d (1980), we the test be explained used by judge the trial in deciding whether to exclude cumulative evidence:
The first consideration for a judge trial is whether evidence which makes the existence of a fact more creates probable a danger of unfair prejudice. The consideration secondary the danger whether of the unfair prejudice substantially outweighs value of probative the evidence.
It was error on the the trial unquestionably part court to permit Hicks summarize the confession when actual confession was about to be for the and we played jury *11 was inexcusable such It against practice. caution
strongly the and embellish the statement officer to paraphrase the permit of occurred complained embellishment words. The appellant’s his wife “ex- he beat as saying when Hicks quoted appellant bad”, made. Lt. Hicks also was when no such statement tremely struck by were allegedly blows that elaborated on the specific alone, have prejudiced comments could such Standing appellant. However, of the embellish- was jury apprised appellant. and heard a argument in closing defense counsel ment by confession, them to assess enabling recording of the appellant’s For these Hicks’ comments for themselves. accuracy reasons, substantially error did not we hold that the trial court’s circumstances, was, trial, and under the affect the fairness of the nothing be noted that about holding harmless. In so it should medical examiner’s conflicts with the state Hicks’ testimony fact, the victim. This sustained findings injuries as to the that he beat her that night, admission coupled appellant’s resulting from lessened the likelihood of any prejudice unfair Hicks’ comments. improper OF EVIDENCE
IV. ADMISSION
of evidence were
maintains that six items
in
of a break in the chain of
light
custody
admitted
erroneously
items, which
gathered
those items. Hicks testified that he
shirt,
cases,
sheets,
them in a
put
included a pillow,
pillow
evidence
He
the items to a Mr.
bag,
gave
sealed it with
tape.
Pervis,
Hicks
an
of the medical examiner’s office.
employee
Edward
identified the items when
were admitted. Mr.
they
Vollman,
serologist
testing,
the forensic
who did the
stated that
items,
when he received these
and he
bag
opened
therefore
no
occurred.
could not ensure that
had
tampering
the chain of
is to
purpose
establishing
custody
the introduction of evidence which is not authentic.
prevent
Wilson v.
To prove
the State
authenticity,
must demonstrate
reasonable
that the evidence has not been altered in
probability
signifi
any
cant manner. Id. We
explained Munnerlyn
928,
To allow introduction of it is not physical that necessary every moment from the time the evidence comes into a law enforcement possession agency until it is introduced at trial be accounted for by every person who could have come in contact with conceivably evidence that Nor it that during period. necessary eliminated; it is every possibility tampering be only discretion, be judge, trial in his satisfied necessary and, that the evidence in reasonable presented genuine with, (citations has not been probability, tampered omitted)
When an to identifica object subject positive tion, of chain need not be as conclusive as it proof custody items, should be with to as respect interchangeable such blood State, 732, or Brewer v. 261 samples drugs. Ark.
(1977). The in effect minor the chain of discrepancies custody are for the trial court weigh. to Id. State, 296,
Most in v. 286 recently Ark. 692 Douglas S.W.2d 217 (1985), we explained that where there is little likelihood that an exhibit has been with it be tampered may State, 739, admitted. We then v. quoted Gardner 263 Ark. 569 S.W.2d 74 (1978) as follows:
It is not that the . . . necessary eliminate every [state] if the possibility trial court is satisfied in tampering, reasonable the evidence had not probability been tampered matters, with. In such the trial is accorded judge some discretion, in the absence of indicating evidence tampering evidence, with the we and will not reverse trial judge’s ruling unless we an find abuse of discretion. State, 544,
See also & Scott v. Ark. 527 258 S.W.2d Wickliffe (1975). 640 Here, the items in were all identified Hicks question by and Vollman and there was no actual allegation of tampering. The chain of was custody sufficient. also appellant to the admission objects physical on
evidence which there human stains capable were blood not shirt, being typed. The evidence included of blue a jeans, a pair towel, a paper, glass, tissue and a coat. Since the blood could not be it could not be or typed appellant, traced the victim to the making it irrelevant according appellant.
144 of bloodstained the introduction held that long
We have as a victim is permissible worn and similar items clothing when it is is relevant court and discretion of the within the sound v. Farrar of the wounds. the location indicating jury in helpful State, v. 231 (1966), Bracey 400S.W.2d289 613, 593 Ark. 267 (1960); Bly Ark. 331S.W.2d S.W.2d 185, 599 (1980), S.W.2d
In Brewer v. belong underwear case, to introduce the state was allowed rape that there were together testimony ing appellant, of the underwear. the front area fly human blood stains inside made to no attempt in of the fact that This was spite had from whom it blood there or got determine when or how the come. and stains clothing contended the in that case material related to fact way any consequential
were not in any disagreed, finding in the case. This court at issue proposition and was relevant testimony spite evidence corroborated other victim’s. We there was no evidence the blood was the of the fact went to the of the argument weight further found appellant’s *13 evidence rather than to its relevancy. and clothing of blood on the
Similarly, presence of the bed linens the medical examiner’s report corroborates was relevant victim’s and the confession. It injuries appellant’s and admissible.
V. APPOINTMENT OF PSYCHIATRIST to retain refusing The maintains the court erred by appellant for him at state a expense private psychiatrist. first filed a motion to be committed to appellant asking might
the state for a of observation because he be hospital period motion entering a of not reason of That plea guilty by insanity. a at granted was evaluated staff appellant psychiatrist Jackson Mental Health Center in Jones- George Community continuous; abuse, boro. The and anti- diagnosis was alcohol social found personality disorder. psychiatrist appellant his in his defense and recommended capable assisting attorney a more extensive evaluation at the State Hospital. a to filed second petition psychiatrist a Appellant requesting was viable. The aid in whether an defense determining insanity and the Hospital was then evaluated at the State appellant as diagnosed there psychologist appellant forensic supervising an a with alcohol abuse and anti- having continuing problem social disorder. The said: personality report be
Defendant to aware of the nature of the appears charges taken him. He is proceedings against capable attorney an cooperating effectively prepara- tion of his defense. offense,
At the time the commission the alleged defendant did not lack the criminal capacity appreciate of his ity conduct to conform his conduct to the of the law. requirements
When the still a appellant requested that private psychiatrist retained, be the court found he failed to make a threshold showing that the defense of would be a insanity serious issue at trial and that the state is not required provide access to appellant psychiatrist’s assistance for his defense of intoxication.
A defendant claiming to be insanity required examined at the state or at hospital regional mental health pursuant to Ark. Stat. facility Ann. 1985). 43-1301 (Supp. § Appellant has been examined at both institutions. Since the state did furnish the services of the staffs of two mental health institutions, the state is not to furnish for required expenses from doctor to shop doctor until he finds one who considers him mentally Andrews v. incompetent. (1979); S.W.2d 585 Finney see also 253 Ga.
346, 320
S.E.2d 147 (1984); Graham v.
Appellant *14 Ct. (1985) as his supporting position, but that case holds that when an indigent defendant demonstrates to the judge trial that his at the time of the offense be sanity significant is to factor trial, at the at state must a minimum assure the defendant access to a competent who will psychiatrist conduct appropriate evaluation, examinations and in assist and preparation presentation of the defense. The Court went on to Supreme say: course, indigent say,
This not to to choose a right psychia- constitutional has defendant his to hire funds liking to receive trist of his personal have defendant indigent is that the own. Our concern we have for competent purpose access to a psychiatrist we discussed, of counsel in the case the provision as this to decision of how implement to the State the leave right. not the intoxication and the defense of
Although voluntary ultimately by appellant, was raised insanity defense of with alcohol problem indicate that abuse diagnoses appellant’s were were committed the crime his at the time intoxication mental health personnel. examining taken into account was properly for a third examination request The appellant’s denied.
Affirmed. J.,
Purtle, dissents. Justice, disagree I with the Purtle, dissenting. John I. on it the matter majority attempts legislate because opinion intoxication, law, overrule case and to scramble prior prove present the law the introduction of bad acts prior on case. as an affirmative designated intoxication
Voluntary which became effective defense in the Arkansas Criminal Code Act the Code and majority opinion correctly 1976. The quotes of volun- 101 of which eliminated the affirmative defense I strongly of this is where most intoxication. result action tary reads follows: Act 101 in as disagree opinion. part being 1. 207 of Act 280 of the same Section Section 41-207, is hereby Arkansas Annotated Statutes § to read as follows: amended is an 207.(1) that is not self-induced Section Intoxication affirmative defense. . . . means. . . .
(2) (a) “intoxication” caused means intoxication (b) “self-induced intoxication” into knowingly substance which the actor introduces by a *15 147 he of which to cause intoxication body, tendency his the ought knows or to know. act
Section 2. All of laws in conflict with this parts laws and are hereby repealed. which is
Section 3. clause emergency quoted [The majority opinion.] [Emphasis added.] stated, Act 101 of 1977 deleted the affirmative Simply by defense intoxication established Act of 1975. The thus is what question presented is effect of the repeal. a but Technically, legislative repeal, action was not rather it anwas amendment. The text states that Act 280 “is clearly hereby amended to read as follows.” intoxication Voluntary removed from the statute. What is left in the statute to simply relate to self-induced intoxication? definition. The part Only which the 1977 act excised from (Act the Criminal Code 280 of 1975) read as follows: 207.(1)
Section Self-induced intoxication is an affirmative defense a negates if it prosecution existence a or purposeful knowing mental state.
The foregoing section was removed from simply original act and the remaining sections were renumbered. majority
The
has
construed
statute which is clear and
unambiguous.
basic and fundamental
rule of statutory
construction is
give
that we
the words of a statute their usual and
If
ordinary meaning.
there
no
we give a statute
ambiguity,
just
effect
as
Schools,
it reads. Chandler v. Perry-Casa Public
170,
The great
created
is that
problem
majority
it
opinion
*16
if the court desires
of
Hereafter
unwritten law.
establishes a pool
result,
repeal,
legislature, by
it
that the
only
a
need
find
particular
result.
achieve a different
intended to
State, 264
in Varnedare v.
was correct
I think this Court
we
“[b]y
where
stated:
596,
(1978),
Ark.
573 S.W.2d
as a
intoxication
41-207 to remove self-induced
amending §
effect,
defense,
any prior
in
reinstated
the
statutory
legislature,
logical
is
subject.”
only
on the
This
the
Arkansas common law
law, in
is
I am
The present
my opinion,
result so far as
concerned.
Therefore,
enactment.
any legislative
the same
existed
to
prior
as
that voluntary
of the instruction
my
giving
from
the
viewpoint,
error,
error in
as is all
is not a
was
intoxication
defense
prejudicial
cases,
to be nonprejudicial.
unless it is later determined
criminal
concerning
I
errors
the
I will now discuss what
as
perceive
in the
The
and answers set out verbatim
questions
“confession.”
was still drunk at
show that the
majority
clearly
opinion
who intoxicated
A
is
the time of the so-called confession.
suspect
interrogation
knowingly, voluntarily,
an
cannot
during
possibly
v.
See Orr
rights.
waive his constitutional
intelligently
is
The “confession”
(1986).
288 Ark.
S.W.2d 438
to a
incident
to follow as it
relates
impossible
frequently
prior
earlier,
he
his wife’s
which
weeks
in which
broke
occurred several
officer to
ribs. To
error the court allowed an
compound the
the
before the statement itself
summarize
statement
inaccurately
to the
presented
jury.
of
The
addresses the
that
the
majority
admissibility
part
act in
statement
the
criminal
several
concerning
previous
ways.
states,
find
the
First it
we
about
“[accordingly,
testimony
is
some
other
beating admissible so
as it
for
prior
long
purpose
he
order to show acted
prove
than
the character
in
person
a
stating
in
The
continues
that
by
therewith.”
conformity
opinion
“if
Rule
it is
404(b)
bad act is admissible
to A.R.E.
prior
pursuant
—
the sense
issue
relevant in
relevant
main
‘independently
merely
rather
some material
than
tending
prove
point
—
is a criminal
then evidence
that
that the defendant
prove
a
instruction
cautionary
conduct
be admissible with
may
proper
”
535,
appellant’s as it reflects a to commit admissibility propensity specific in cites as majority sort crime particular question.” child cases where we analogous our decisions in abuse and incest child have evidence of similar acts the same permitted prior “because, here, they or other children in the household as show a proclivity toward act with class of specific person persons with whom the accused has an intimate relationship.” Finally Court concludes that the act “is of the prior probative appellant’s participation charged crime therefore admissible under Rule 404(b).” The then holds that A.R.E. Rule opinion *17 403 is the real test to be and that the value of applied probative this evidence outweighed any prejudice. wife,
The definition, of husband and relationship shows by The intimacy. intimacy of the was parties not an issue in this trial. act, therefore, bad prior cannot be said to have been introduced for the of purpose showing This intimacy. evidence does not fall simply within the exception general rule in cases of carnal abuse and incest. See at Alford, 335. supra, of
My interpretation the majority is that it opinion overrules as to the fundamental rule of exclusion which forbids the Alford prosecution from proving commission of one crime of by proof the commission of another. In we stated: Alford
The rule itself has been announced in some decisions fifty of this court and is so familiar we that need not discuss at length the reasons for its acceptance by every English American court. Basically, the rule rests of upon spirit that which, else, fair play more perhaps than anything distin- guishes Anglo-American law from the of jurisprudence other nations. Our is a of theory that simply finding guilt should doubt, rest upon proof, beyond reasonable that the accused committed the exact offense is being for which he tried. We do not the State permit to bolster its appeal convictions, of jury by proof prior with their conclusive of presumption verity, still less is there reason allow to be jury prejudiced by mere accusations of earlier misconduct on the part . . . defendant. What has is that happened the emphasis has shifted from evidence relevant to prove intent to evidence offeredfor intent, the defendant showing that by
purpose proving is permitted If of emphasis a bad man. this transfer meaning. [Emphasis has lost its rule exclusionary original.] is the rule general proof we held that it
In decisions have prior relevance when its only admitted bad acts is never prior The evidence of bad character. is a man show that the defendant intent, but rather was not to prove relevant beating of the first intent, that the showing purpose proving offered for the man. defendant was bad his wife he had beaten trial was not whether
The issue at her. before, to murder whether he intended but rather wife, he denied although any his beating admitted defendant have been beating might The fact of the first intent to kill her. in no but this evidence was beating, relevant to a second prove to murder. The evidence any relevant to establish intent respect because, its clearly, been excluded beating the first should have value outweighed any substantially probative effect prejudicial Rule 403. on the issue of intent. See A.R.E. new
I would reverse and remand for a trial. *18 Arkansas STATE of STANDRIDGE Tracy 86-144 CR Arkansas Court of
Supreme October Opinion delivered