39 S.W.2d 295 | Ark. | 1931
The undisputed testimony in this case shows that appellant, Virgil Williams, and another man shot Neil McDermott, a policeman, while they were engaged in robbing George Chance, and that nine days *871 later McDermott died from the effects of this wound. Upon his trial under an indictment charging him with the crime of murder committed in the perpetration of a robbery, appellant was convicted of murder in the first degree and given a sentence of death, and has prosecuted this appeal to reverse the judgment on account of the errors of the trial court in admitting certain incompetent testimony over his objection.
The State was permitted, over appellant's objection, to show that shortly before coming to Little Rock, the scene of the killing of McDermott, appellant had been confined in the penitentiary in Oklahoma, and that he came to Little Rock in a stolen car; that, shortly after reaching Little Rock he had robbed a drug store; he was arrested for this crime, confined in the county jail; that he escaped from the jail, and, in doing so, stole the pistol with which he later killed the officer who attempted to arrest him while robbing Chance.
There is no connection between these various crimes and the killing of McDermott, and the only, and the necessary, effect of this testimony was to show the desperate character of appellant as a confirmed criminal. There was no question as to the purpose for which appellant held up Chance, and that he robbed him, and that while still at the scene of the crime he killed the officer who attempted to arrest him. He was therefore guilty of murder in the first degree. Clark v. State,
It is insisted by the State that, although the admission of the testimony as to the previous criminal conduct of appellant may have been erroneous, as having no relation to the killing of McDermott and not explanatory thereof, the error was not prejudicial, for the reason that the undisputed evidence shows that appellant was guilty of the crime for which he was convicted, and the jury could not, under the law, have returned any verdict except that of guilty as charged in the indictment. *872
The law is settled, indeed, is declared by the statute, that this court will not reverse except for an error prejudicial to the defendant, 3014, C. M. Digest. But it is also settled that evidence improperly admitted must be treated as prejudicial unless there be something to show that it was not. Brock v. State,
There appears to be no question but that the admission of the testimony showing the commission of other crimes having no relation to the robbery of Chance and the killing of the officer, and not explanatory thereof, was error. The law upon this subject has been declared in many cases, and is well stated in the case of Ware v. State,
"It is uniformly held that the prosecution cannot resort to the accused's bad character as a circumstance from which to infer his guilt. This doctrine is founded upon the wise policy of avoiding the unfair prejudice and unjust condemnation which such evidence might induce in the minds of the jury. If such testimony should be admitted, the defendant might be overwhelmed by prejudice, instead of being tried upon the evidence affirmatively showing his guilt of the specific offense with which he is charged. 1 Greenleaf on Evidence (8th ed.), 14 b, 14 q; Wigmore on Evidence, 57.
"And so, too, it is held that one offense cannot be proved by the evidence of the commission of another offense, unless the two are so connected as to form a part of one transaction. But, as wholly independent acts, the commission of one offense cannot be shown by evidence of the commission of another. And the introduction of such testimony is also inadmissible because it raises another and different issue which would call for the introduction of other testimony upon such issue, and thus would involve the true and specific issue presented to the jury for its determination, whether the defendant was guilty of the specific crime charged in the indictment. Dove v. State,
But, inasmuch as the undisputed evidence shows that appellant was guilty of the crime of murder in the first degree, was the error prejudicial? We are constrained to hold that it was.
Under the law a jury which has convicted an accused person of the crime of murder in the first degree may, in its discretion, impose the death penalty or a sentence of imprisonment for life. Both are punishments authorized by law for the commission of the crime of murder in the first degree, and the trial jury has the discretion to impose the one or the other. But, while either life imprisonment or the death sentence may be imposed, the law recognizes that there is a difference in these degrees of punishment and that the first named is less than the latter.
Prior to the enactment of 3206, C. M. Digest (act 187, Acts 1915, page 774), authorizing the alternate punishment, bail was not allowed upon an appeal to this court from a judgment convicting an accused of the crime of murder in the first degree. But in the case of Walker v. State,
The court again recognized that there was a difference in severity between a life and a death sentence in the case of Davis v. State,
So, therefore, while the undisputed testimony shows appellant guilty of the crime of murder in the first degree, and the jury could not, under the law, have returned any other verdict, there has been imposed the greater, rather than the lesser, punishment for that crime. Were it the law that one, a certain and no other, punishment might be imposed, we would be justified in holding that no prejudice resulted in the imposition of the death sentence, because we could say that the jury could not, under the law, have returned any verdict except that of guilty and could not have authorized the imposition of any sentence except that of death. But we cannot say this for the reason that the jury might, under the law, have imposed another and the lesser punishment, although they must necessarily have found appellant guilty of murder in the first degree as charged in the indictment. We are therefore unable to say that the admission of the incompetent testimony was not prejudicial, for the reason that a greater sentence was imposed than might otherwise have been imposed had the incompetent testimony not been admitted.
It does not follow, however, that, because the judgment imposed cannot be permitted to stand, the cause must be reversed for a new trial. The error affected only the degree of punishment which might be imposed, and the practice in such cases was declared by Mr. Justice RIDDICK in the case of Vance v. State,
In that case the judgment was reversed and the cause was remanded, with directions to the circuit court to sentence the defendant for murder in the second degree. *876
But in the case of Simpson v. State,
But, unless the request is made by the Attorney General for the reversal of the judgment, rather than have it modified, we may cure the error by the modification of the judgment. In the case of Crowe v. State,
Unless, therefore, the Attorney General shall, within fifteen days, elect to request that the cause be remanded for a new trial, the judgment of this court will be that the sentence of death be reduced to that of imprisonment for life, and it is so ordered.
HUMPHREYS, MEHAFFY and McHANEY, JJ., dissent. *877