Moore v. State

299 S.W.2d 838, 227 Ark. 544, 1957 Ark. LEXIS 357

• Court: Supreme Court of Arkansas
• Decided: March 18, 1957
• Docket: 4862
• Status: Published

Opinions

George Rose Smith, J.

The four appellants, Moore, Boyd, Boone, and Byrd, were convicted of murder in the first degree, committed in the perpetration of robbery, and were sentenced to death. A number of grounds are urged for a reversal of the judgment.

It is first contended that the court should have granted a change of venue. The petition for a transfer of the case did not comply with the statute, in that it was not supported by the affidavits of two credible persons not related to the defendants. Ark. Stats. 1947, § 43-1502. Nor was there any sworn testimony (except the affidavits of the defendants themselves) to show that the minds of the inhabitants of the county were so prejudiced that a fair trial could not be had. Ibid., § 43-1501. The defense offered only the unsworn statements of the four attorneys who were appointed to defend the case. These gentlemen said in substance that they had unsuccessfully attempted to find and employ some one to make a survey of the public feeling in the county. It was their opinion — and this was at least in part a conclusion — that their failure to find some one qualified and willing to make the survey was due to the existence of local prejudice. Newspaper reports of the crime were also introduced in support of the petition, but we do not share counsel’s opinion that these reports were biased.

In the absence of competent evidence to establish the existence of prejudice the court did not abuse its discretion in denying a change of venue. Appellants rely solely upon the decision in Hildreth v. State, 214 Ark. 710, 217 S. W. 2d 622, but that case is quite unlike this one. There the attorneys submitted a sworn statement, and offered to testify, that they had questioned numerous residents of the county and all thought the accused could not obtain a fair trial, that members of the jury panel had stated they could not try the accused fairly, and that public feeling was so antagonistic that the statutory affidavits could not be had. In the Hildreth case the judge refused to hear the proffered testimony and denied the petition on the basis of his personal belief that a fair trial could be had. In reversing that action we did not say that a change of venue should have been granted; we merely held that the court erred in refusing to hear the testimony. That decision does not require a trial court to order a change of venue in the absence of any testimony that the statutory ground therefor exists.

A second contention is that the defendants’ confessions were admitted in evidence without other proof that the offense charged had been committed. Ark. Stats., § 43-2115. According to the confessions, the four appellants were riding together in a truck on the morning of May 9, 1956. They picked up the decedent, M. R. Plamm, who was on the highway soliciting a ride to his home a short distance away. Instead of driving Hamm to his home the defendants took him to a lonely spot farther down the lane on which Hamm lived. There the four men beat the decedent with their fists and with a club, knocking him down several times. They took from him a coin purse and a larger purse, together containing $10.11. After dividing the money the defendants drove away rapidly, leaving Hamm lying by the roadside.

Apart from the confessions there is ample evidence to show that the offense was committed. Testimony independent of the confessions indicates that Hamm left his home on the morning of May 9 to go into Texarkana for the purpose of paying a bill and buying medicine. Pie was last seen several hours later on his way home. Hamm was missing until May 14, when two of the appellants, Boyd and Boone, were questioned in connection with another robbery and admitted the attack upon Hamm. These two showed the officers where the assault had taken place, and Hamm’s purse was found by the road there. His body, badly decomposed, was discovered under some brush about two tenths of a mile away. Later on the other two appellants were arrested and also led the officers to the scene of the attack. In view of the fact that Hamm was missing for five days, that his body was found far from the route he would normally have followed in returning home, and that his purse had been taken, the jury would have been warranted in concluding from this evidence alone that Hamm had been robbed and had not died from natural causes. Ezell v. State, 217 Ark. 94, 229 S. W. 2d 32, and cases there cited.

The most serious question in the case is whether the court erred in permitting the State to prove that two of the defendants, Boone and Boyd, assaulted and robbed another man, T. B. Fenwick, five days after the attack upon Hamm. Although the two crimes were somewhat similar, in that both victims were picked up while hitchhiking, the record establishes no connection between the two offenses. In charging the jury with reference to the proof of the Fenwick robbery the court gave an instruction similar to that set out in Scrape v. State, 189 Ark. 221, 71 S. W. 2d 460, by which the jury were told that the Fenwick incident “might be considered by you as showing, if it does show, a scheme and a design on the part of these two defendants in the' commission of crime, and for no other purpose.”

That a defendant cannot be convicted of one crime by proof that he committed another is a fundamental principle of fairness conceded by every one. Judge Hemingway ably summarized the rule in Billings v. State, 52 Ark. 303, 12 S. W. 574: “The general rule is well established, in civil as well as in criminal cases, that evidence shall be confined to the issue. It seems that the necessity for the enforcement of the rule is stronger in criminal cases. The facts laid before the jury should consist exclusively of the transaction that forms the subject of the indictment, and matters relating thereto. To enlarge the scope of the investigation beyond this would subject the defendant to the dangers of surprise against which no foresight might prepare and no innocence defend. Under this rule it is generally improper to introduce evidence of other offenses; hut if facts bear upon the offense charged, they may be proven, although they disclose some other offense. The test of admissibility is the connection of the facts offered, with the subject charged.”

There are, of course, innumerable situations in which proof of other conduct on the part of the accused is relevant to the offense charged and is therefore perfectly competent, even though it also shows the commission of another crime. Many such situations were discussed in Alford v. State, 223 Ark. 330, 266 S. W. 2d 804, and need not again be reviewed. The question here is whether evidence of the Fenwick robbery was admissible to show a scheme and design on the part of Boone and Boyd in the commission of crime.

Our many cases admitting evidence to prove design fall naturally into two classes, corresponding to the two senses in which the word design is commonly used. First, design may simply indicate intent or conscious knowledge, as when one says that a thing was done by design rather than by accident or mistake. This usage is common in cases involving conduct which may be either innocent or criminal, depending upon the accused’s guilty knowledge or intent. A typical instance is Johnson v. State, 75 Ark. 427, 88 S. W. 905, which involved a charge of larceny growing out of an elaborate confidence game. In holding that proof of similar conduct was admissible to show design (in the sense of intent), we said: ‘ ‘ The general rule, of course, is that one crime cannot be proved as tending to prove another; but when the question of intention in the performance of acts becomes material, then similar acts which tend to show whether an innocent or criminal intent is present become admissible. This is frequent in cases of uttering forged instruments, passing counterfeit coins, receiving stolen property, and is applied in larceny as well as other crimes. 1 Wigmore, Evidence, § 346. The question was recently considered in this court, and this rule announced: ‘When there is a question as to whether or not the crime charged was by accident or mistake, or intentional and with had motive, the fact that such act was one of a series of similar acts committed by the defendant is admissible, because it tends to prove system and show design.’ Howard v. State, 72 Ark. 586 (82 S. W. 203).” Among other cases using the word design to mean intent or guilty knowledge are Ross v. State, 92 Ark. 481, 123 S. W. 756, and Norris v. State, 170 Ark. 484, 280 S. W. 398.

It is quite apparent that cases such as these do not support the State’s position in the case at bar. The only evidence that connects these appellants with Hamm’s death arises from their admissions and confessions. That proof, which must have been accepted by the jury, shows that these men beat their victim for the avowed purpose of robbing him. The question is not that of the intent with which Hamm was attacked. Rather, it is whether the attack took place at all; if it did, it was unquestionably done with criminal intent and constituted robbery. True, the appellants insisted in their confessions that they did not intend to kill Hamm, but that issue was eliminated by an instruction to the effect that a specific intent to take life is not necessary if the life is unlawfully taken in the perpetration of robbery.

In its other sense the word design means a plan of action formed in the mind and to be carried out in the future. Proof of design in this sense is undoubtedly competent, for the fact that a crime was planned in advance tends to show that it was actually committed. “The presence of a design or plan to do or not to do a given act has probative value to show that the act was in fact done or not done. A plan is not always carried out, but it is more or less likely to be carried out. ’ ’ Wigmore on Evidence, (3d Ed.), § 102; see also § 300. We have approved this principle on many occasions. For example, in a prosecution for murder in the perpetration of robbery it was proper for the State to prove that three robberies were planned in advance, although only one was attempted. Ford v. State, 34 Ark. 649. Again, in a prosecution for receiving stolen cattle the State could prove that the accused was engaged in that business and had. offered to pay a witness $8 a head for any cattle that he might steal and deliver to the accused. Long v. State, 192 Ark. 1089, 97 S. W. 2d 67. Other cases in point include Nichols v. State, 153 Ark. 467, 240 S. W. 716; Middleton v. State, 162 Ark. 530, 258 S. W. 995; cf. Jenkins v. State, 191 Ark. 625, 87 S. W. 2d 78.

It is likewise apparent that the proof of the Fenwick robbery does not come within the scope of this second aspect of design. The Fenwick incident occurred five days after Hamm was killed; it has no tendency to show that the robbery of Hamm was planned in advance. There is actually no evidence of an independent plan, formed ahead, for the attack upon either victim.

It is plain enough that the robbery of Fenwick was not competent to show design either in the sense of criminal intent or in the sense of a premeditated scheme. If the jury could not draw either of those permissible inferences from proof of the subsequent crime, of what value was the testimony to them? The only possible answer is that this proof established the fact that Boone and Boyd were criminals and were therefore likely to be guilty of the offense for which they were being tried. In short, the jury were afforded the opportunity of finding Boone and Boyd guilty of murder upon the basis of proof that they had committed robbery on another occasion.

We have in our reports more than a hundred decisions on this general subject. It may be conceded, as we indicated in the Alford case, supra, that these cases cannot all be harmonized with the principles stated there and here, or, indeed, with one another. The subject is one in which confusion is especially apt to arise. As we have seen, when the¹ offense involves conduct that may be innocent or guilty, depending upon intent, it is proper for the State to offer evidence of similar conduct on the part of the accused in order to establish the necessary intent. But once the statement has been made that evidence of other offenses is admissible to show intent, the rule may be inadvertently applied in situations to which it is really not applicable.

Perhaps the most conspicuous departure from the general rule occurred in Scrape v. State, supra. There, in a prosecution for the robbery of a filling station, the State was allowed to prove an attempted robbery of another filling station on the following night. "We held the evidence admissible, citing Wilson v. State, 184 Ark. 119, 41 S. W. 2d 764, and Sibeck v. State, 186 Ark. 194, 53 S. W. 2d 5. It is at once apparent that neither decision supports the principal case, for both the Wilson case and the Sibeck case involved conduct that might have been innocent or criminal, according to intent. Thus a sound rule of law was lifted from its context and by oversight applied to a different fact situation.

It is easy to demonstrate that isolated cases such as the Scrape decision are out of harmony with the great majority of our opinions on the subject. A few examples will suffice. In Wood v. State, 157 Ark. 503, 248 S. W. 568, we held that evidence of a prior charge of robbery was inadmissible in a later prosecution for robbery. This language was quoted with approval by Judge Prank Smith: £ ‘ On the trial of one indicted for robbery, as in the case of other criminal prosecutions, the general rule is that evidence is not admissible which shows, or tends to show, that the accused has committed a crime wholly independent of the offense for which he is on trial. Under this rule, therefore, evidence of another separate and distinct robbery, committed the preceding night, by the defendant upon another person, in the same neighborhood, in much the same way, is not admissible in evidence against one who is being tried for robbing a pedestrian on the street in a city by pointing a pistol at him.” It will be observed how precisely this language fits the case at bar.

That two unconnected offenses do not themselves establish a scheme or design was unequivocally decided in Yelvington v. State, 169 Ark. 359, 275 S. W. 701. There the accused was charged with the theft of mules. We reversed the judgment because the State had been allowed to prove that when the stolen animals were found in the accused’s possession he also had in his possession some stolen sets of harness. Chief Justice Mc-Culloch analyzed the issue in detail: “We are of the opinion that it was error to admit the testimony of other thefts and appellant’s possession of the other property which had been stolen. This court has adopted a very liberal rule in declaring exceptions to the general rule against proof of other crimes. We have said that proof of other crimes of a similar nature, shown to have been committed about the same time, may be admitted as disclosing the good faith or criminal intent of the accused, or to prove a scheme or plan or system of committing crime, or to show a connection between that particular crime and the one under investigation. (Citing seven cases.) The proof in the present case does not, however, fall within the exception. The proof of the theft of the harness had no connection with the alleged theft of the mules. It occurred at a different time and place, and under those circumstances it had no tendency to establish a plan or scheme which included the theft of the stock, and formed no connection with that incident. The court admitted the testimony on the theory that it tended to establish the good or bad faith of the accused, but we do not think that it was proper for that purpose. The assignment falls squarely within the decision of this coui't in the recent case of Mays v. State, 163 Ark. 232 [259 S. W. 398]. In that case the defendant was convicted of the offense of receiving stolen property, and the State proved the theft of a valise containing woman’s apparel, that two of the dresses were found in the possession of appellant, and that other stolen property had also been found in his possession. We held that the testimony was incompetent, and the same reasoning calls for the exclusion in the present case of testimony relating to other thefts. The fact that the stolen harness was found in appellant’s possession at the same time that the mules were found there does not relieve the testimony of the objection that it relates to another crime.”

The charge in Williams v. State, 183 Ark. 870, 39 S. W. 2d 295, as in the case before us, was murder committed in the perpetration of robbery. In holding that the admission of testimony concerning other offenses, including robbery, was prejudicial we said: “There is no connection between these various crimes and the hilling 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 hilled the officer who attempted to arrest him.”

There are many other holdings to the same effect. Recent thefts of saddles or bridles cannot be shown in a prosecution for the theft of horses. Dove v. State, 37 Ark. 261; Endaily v. State, 39 Ark. 278. Where the accused was charged with assault with intent to hill, after he had brohen into a woman’s room with a pistol, the State could not show two other occasions on which he had brohen into women’s rooms with a pistol. Morris v. State, 165 Ark. 452, 264 S. W. 970. A separate attempt to rape cannot be proved in a prosecution for rape. Alford v. State, supra. Evidence of the theft of other cars is inadmissible upon a charge of larceny of an automobile. Rhea v. State, 226 Ark. 664, 291 S. W. 2d 521. See also Davis v. State, 170 Ark. 602, 280 S. W. 636.

Thus we are firmly committed to the universally accepted rule that evidence of other offenses is inadmissible when it has no permissible relevancy to the crime at issue and can only serve the purpose of persuading the jury that since the accused has been guilty of similar offenses he is therefore lihely to be guilty of the crime charged. It follows that the introduction of proof concerning the Fenwich robbery constituted prejudicial error as to Boone and Boyd.

Whether the error was also prejudicial as to Moore and Byrd, who had no part in the later crime, is apparently a question of first impression in this state. In admitting proof of the Fenwich robbery the court instructed the jury that the testimony could not be considered as to Moore and Byrd. It is of course possible that the jury were able to obey the court’s admonition and were not adversely influenced as to Mooré and Byrd. On the other hand, the admission of the Fenwick proof was prejudicial as to Boone and Bóyd, and the fact that the jury found all four defendants guilty and imposed the same penalty in every case indicates that the prejudicial effect of the testimony may have carried over to the other two defendants.

In the particular circumstances of this case we think the error was prejudicial to all four defendants. It is quite possible that if the attack on Fenwick had been mentioned only casually in the course of this prolonged trial, its effect as to Moore and Byrd would have been overcome by the court’s admonition to the jury. That, however, is not the situation at all. The record discloses beyond question that the State undertook to, and did, prove the Fenwick robbery in every detail and beyond a reasonable doubt. Before it had even been shown how Hamm met his death Fenwick was called as a witness and described at length how Boone and Boyd beat him with a claw hammer and forcibly took his wrist watch and a wallet containing an 1891 silver dollar. Seven law enforcement officers testified about the investigation of Hamm’s death; all of them except a police photographer also testified about the Fenwick crime. The wrist watch had been found in Boone’s cap and was introduced in evidence. The silver dollar was traced, recovered, identified, and received in evidence. The officers described their search for the hammer and accounted for their failure to produce it as well. A substantial portion of the trial was devoted to the State’s meticulous proof of the later crime, and it was mentioned several times in the prosecution’s arguments to the jury. It is fair to say that the proof of the attack upon Fenwick was even more conclusive than the proof of that upon Hamm, for the latter involved circumstantial evidence while the former was proved by direct testimony.

“Where the effect of an erroneous instruction or ruling of the trial court might result in prejudice, the rule is that the judgment must be reversed on account of such ruling, unless it affirmatively appears that there was no prejudice.” Crosby v. State, 154 Ark. 20, 241 S. W. 380. We cannot conscientiously and sincerely say that the court’s admonition eliminated the possibility that prejudice to Moore and Byrd resulted from the voluminous testimony relating to the brutal attack upon Fenwick. All four of the defendants had acted in concert in beating and robbing Hamm. When it was shown that two of these men also beat and robbed Fenwick, it would be natural for the jury to conclude that the other two would have joined in the attack had they been present. When the matter is thus open to doubt we are not warranted in holding that the record affirmatively shows the absence of prejudice.

Reversed.

Mr. Justice Holt joins in the opinion except with respect to the trial court’s denial of a change of venue; on this point he agrees with the concurring opinion of Mr. Justice McFaddin. The Chief Justice and Mr. Justice Millweb would affirm the judgment.

1 It was while the officers were questioning these two defendants about the Fenwick robbery that they learned of the robbery of Hamm, and were taken by Boone and Boyd to the location where Hamm had been beaten and left.