ARK.] TRAMMELL V. STATE. 21 TRAMMELL V. STATE. Crim. 3998
Opinion delivered October 19, 1936. 1. HOMICIDE.—Where, in a prosecution for murder in the first degree, the evidence introduced by the state would, if believed, justify a convktion, and that of the defense would, if believed, justify an acquittal, and a verdict is returned which comports with neither theory, the Supreme Court can, on appeal, only determine whether the evidence is legally sufficient to support the verdict. 2. CRIMINAL LAW.—Where, in a prosecution for murder, the mother of the deceased was permitted to introduce, identify and offer in evidence a photograph of the deceased, no prejudicial error resulted, although the identity of the deceased was not in issue. 3. CRIMINAL LAW.—In a prosecution for murder, there was no abuse of discretion by the court in permitting deceased's mother, after testifying to remain in the courtroom, although other witnesses had, under § 4191, Crawford & Moses' Dig., been put under the rule, where she was not called on again to testify. 4. CRIMINAL LAW.—Where, in a prosecution for murder, accused claimed that deceased was drowned in a stream of water, testimony concerning tests made some months later and a few days before the trial, to determine the velocity of the water, by throwing small logs into the water and measuring 11 hours later the distance they had floated was neither incompetent nor prejudicial, where the tests were made in the same stream and the. difference in the water level was not more than 4 or 6 inches. 5. CRIMINAL LAW.—Efforts of trial courts to dispatch the business before them is commendable, but the rights of an accused person, or a litigant before the court, to fully and properly present testimony in his own behalf and to crcss-examine witnesses testifying adversely is of more importance, and should not be abridged, even for the sake of expedition. 6. WITNESSES.—In a prosecution for murder, there was no abuse of discretion in refusing to permit full cross-examination of State's witness as to length of time she had been in jail, where it did not appear that accused's counsel was denied the right to ask relevant questions, and witness admitted having been confined in jail subsequent to the tragedy which incarcerations related thereto. 7. CRIMINAL LAW.—An instruction, in a prosecution for murder, in the language of the' statute (§ 2342, Crawford & Moses' Dig.) which provides that the killing being proved, the burden of proving circumstances of mitigation that justify or excuse the homicide shall devolve on the accused, unless, by the proof on the part of the prosecution, it is sufficiently manifest that the
92 TIAMMELL v. SYATE. [193 offense committed only amounted: to manlaughter, or that the accused was justified or excused in committing the homicide was not erroneous as assuniing the killing to have been proved, nor on the ground that there was no issue of justifiable homicide. 8. HomIcruE. Iri a proseeution for murder, accused cannot complain of instructions on the lesser degrees of homicide which . : resulted in•a iTerdict of guilty for Manslaughter, on:the ground •• thai he was either guilty of mlirder 'in the firA degree Orldf no ' crime at all, where the testimon3i shows that he was guilty of • a higher degree of homicide than that for which he was conVictecl. . CitrmINAL LAW.—Where, in' a . Prosecution for murder;' the State relied on circumstantial-evidende, an InstrUction that "it is as competent to convict on circumstantial evidence as updh POgitive 'evidence, except that. the circiimstances'intr§t be 'iriconteir 'with any other rea'sonable h3i5othesis."' And addinethat "this"does not mean amy More than this, tha.t the:fads' and circuMstances in the whole case taken together, if they should coniTince you of his guilt beyorid a reasonable dmibt,' it is sufficient. If they dO not, it is not sufficient" is not errondous ori the grouhd that the la g t sentence negatives the preceding portiori, since it merely explains it: ' •• "' . .. • . Appeal from Crawford Circuit. Court ; J.
cannon.; judge ; affirmed. : 4 . Partain & Agee, Roy Gean and Hardin, & Barton, fOr appella;nt. . Carl E. Padoy,,-Attorney .General, and J. F. Koone, Assistant,, for appellee. . - -• SMITH, j . ApPellan:t W a : s'indiCted for murder in the first .degree, alleged .to have I been committed by- killing one Mary Mahar. Upon his trial he was found' guilty of • voluntary . manslaughter and giVen a sentence of seirén years in the penitentiary,' . frorn which is this appeal. It is first very earnestly insisted that the testimony is not . legally sufficient to sustain 'the verdict and judgment, and this appears to be the assignthent of error chiefly relied upon for the revers àl of the judgthent...., The case grows out of a tragedy which happened at the Grotto Club swimming pool about from Fort Smith. • A party of fifteen young people, residents of that city, consisting' of seven ..couples, some of whom were married, and one extra- young man; went to the pool on July 4, 1935, to swim. Appellant went on his
ARK.] TRAMMELL V. STATE; 23 motorcycle; and. was the escort of a young woman named Dorothy Karps, who became and was the.mostimportant wi•ness against him at: the trial from which this appeal comes. Miss Karps testified that on the way to the clubhouse appellant . stopped and bought a bottle of. whisky, and they had several drinks. Other members of the party also bad whisky. Appellant's brother, Mont Trammell, escorted the deceased, Mary Mahar, who was a young woman less than fifteen years old.accOrding to the testimony of her mother. All the members of the party except, the two young women just named had bathing suits. Having no suits, they, did not undress at the clubhouse, as other members of the party did except appellant, who did not go in.bathing until later. The young women went .a few hundred yards:up, the creek, and removed all their clothing except their step-ins and brassieres, after which they went bathing in the creek. To reach the place where they undressed they had to walk about two miles to cross the creek on a bridge.. Witnesses described the part of the creek where the bathers were as being like a lake about a half-mile long and from, seventy-five to one hundred twenty-five feet wide„ Dorothy Karps testified that appellant came to the place where she and•Mary Mahar; were in the water. They asked appellant for a match to light cigarettes. Appellant told Mary to come get one. When she came out of the water to get the match appellant took hold of her arm and then asked her to have sexual intercourse with him. Mary said, "I. am sorry I:came," and ran into the woods. Appellant pursued her. Dorothy further testified that she heard some one scream in the woods, a,nd that -appellant returned alone , after an absence of thirty or forty minutes, and she never saw Mary again alive. Dorothy also testified that appellant pret sented a disheveled . appearance, his shirt was torn, : "his pants messed up," and:there was grass in his hair. Dor-othy dried her clothes: and dressed. When she saw appellant trt . the clubhouse he•inquired where Mary was. Appellant said to her:that if she told anything about what ,sh_e ha,d seen and heard he would , kill:her. Appellant
94 TRAMMELL V. STATE. [193 told her he went into the woods with Mary tc■ fill a date with her, and told her not to tell his brother Mont, who was Mary's escort and who had been going with her for some months. Search for Mary began when her absence was discovered. It was continued until dark without finding her. Dorothy asked appellant to take her home. He declined to do so, saying that he would continue to search until he found Mary, and he remained there all night. Mary was last seen alive some time Thursday afternoon. Her body was not found until the following Sat-urday morning. It was discovered about a quarter of a mile from . the place where she was last seen in the water. Her head was down in the water hanging against a large rock, with her back and hips projecting upwards out of the water. The body was recovered and an inquest held by the coroner and an autopsy performed by two phYsicians, who testified at the trial. The doctors testified that they found no water in Mary's lungs, but they alsb testified that the absence of water in the lungs was wit - uncommon in cases of death by drowning, being true, according to the medical authorities, in about forty-eight per cent. of such cases. They found a fracture of the third vertebra, which might have caused death, but would not necessarily have done so, unless the spinal cord had been injured. They • could not tell whether the fracture occurred before or after death. They did not testify whether the spinal cord had been injured or not, but the injury to the vertebra could have occurred as well after death as before. Appellant did not testify at the trial from which this appeal comes, but he did testify at length at the inquest and his testimony at that trial, which had been steno-graphically reported, was read at his trial in the circuit court. He admitted in his testimony before the coroner's jury that he had sexual intercourse with Mary in the woods, but said he had done so with her consent, and they had made an appointment for another meeting later in the week. His testimony at the inquest was to the effect that when he and Mary . returned from the woods she
ARK.] TRAMMELL V. STATE. 25 re-entered the water, and he saw her body bobbing up and down in the water. That she must have gone under the water some six or seven times, but he thought nothing of it, as he supposed she was playing. Two other members of the swimming party saw Mary in the water and reached the same conclusion. Many witnesses testified, and the record is voluminous, and there are many conflicts and contradictions which presented questions of fact for the jury's review and decision. It was the theory of the defense that Mary had drowned, and that her body had floated for a quarter of a mile and had lodged against the rocks, where her neck was broken by the pressure of the water, and that appellant's good faith and innocence was shown by the persistence with which he continued his search for the body during the night following Mary's disappearance. It is the theory of the state that appellant had sexual intercourse with Mary forceably and against her will, and later murdered her to conceal his crime and remained near the creek to throw the body in the water when he might do so unobserved. The testimony of Dorothy Karps, if credited, as the jury had the right to do, in conjunction with other facts and circumstances detailed in evidence, is sufficient to sustain the State's theory, in which event appellant would, of course, have been guilty of murder in the first degree. On the other hand, the testimony as to her being in the water after the meeting in the woods, if credited by the jury, would have required his acquittal. The verdict returned does not comport with either theory, as is frequently the case in jury trials. In such cases we may only determine, on the appeal to this court, whether the testimony is legally sufficient to support the verdict which was returned, and as we think it was the judgment must be affirmed so far as the sufficiency of the testimony is concerned. Fulbright v. Phipps, 176 Ark. 356, 3 S. W. (2d) 49; Griffin Grocery Co. v. Thaxton, 178 Ark. 736, 11 S. W. (2d) 473 ; Elm Springs State Bank v. Bradley, 179 Ark. 437, 16 S. W. (2d) 585; McGuire v. Robertson, 182
26 TRAMMELL V. STATE. [193 Ark 759,32 S. -W..(2d) 624; Powers lr., 1VoOd PartCor-parag on,. 184 -. Ark. 1032, '44 S. W. '(. 2d) 324. ; 'Hd42' :it V: Louisiana ..Oil Refining- Corporation', 186 Ark: 331,:53.S. W.' (2d) 430; Dixon v. Stcite;191. Ark. 526; 81 S. W: (2d) 17. The mother of the 'deceased was- the- first Witnes's called for the state: She was permitted - to- intreduce, identifY and offer-in evidence a photograph . of her daughter, and that action iS assigned as. orrar: The only uSeful purpose the picture could have served would have 'been to identify the' deceased, and that question waS not in issue, -and the picture Was;: therefore, withont . probative value. . It- is inconceivable, however, that this • nnneees-sary. evidence' could have been- 'prejudicial. . • •* After:deceased's mother had teStified. she Was' permitted, oVer aPpellant's objection; to remain in the'cOnre room, althongh 'the 'rnle had' been 'ordered • a8 : 'to' 'all ; Other witnesses: -She . was . not again called.'as a 'witness The statute.:provides that' -` . `If- either party reqinife' : it, the judge may eieltide from the , courtrobth: ahy wifne§s.'of.the adverse."party . not at the tirae- -under 'et.amination so that he may not hear . the testimony 'of 'the' -other witneSs.' .5 Section' . 4191; Crawford: & ..MoseS' Digest:, But • it has often been held that • the : enforcement- of 'this ; rule iS matter -within the sound 'diseretion of the Court,' and ther.e appears to ' have been 'no . abuse• of this • discretion. Mad v: State, 182 Ark 924, 33 S. W . . (2d)'391.- • •• Some r Months 'after the 'tragedy and -a 'few day§ •be. fore ,• the trial in -the circuit . coulq two . WitnesSes; at the instance of the• prosecuting -attorney, made testS to d .e-termine the 'velocity 'of the , water take, ofthat por tion of the ;creek where Mary • • had been bathing,"And where her body-was fonnd. .This tes'f was -Made bY throw-irig, three small logs- weighing 60 to -.65 - pounds 'in 'the-water .at different places and' measuring -eleven--..hour'S later , the distance 'they 'had floated.— The witnes§e' vhO made-the t6sts stated-that one' log or Chunk; as it- wa.§ alsO called, was . 150i feettoiVards the'north bank down' StreaM frOm wherOit was thrown 'into the water, 'the Second 'one' about' 190 -to 200 feet -across -from- the South bank. The
ARK.] TRAMMELL V. STATE. 07 • other .was-ribout -25 feet 7helpw that one. .. This was 235 feetidown-stream. and some . distance, from the bank. -This testimony.:was--Objected to_ upon the ground, that the. conditions of the , te. st were. not shown to have been identical:with those'under which the corpSe floated down the lake . or. creek; and -that it -was -irrelevant terial:. The -test may, not have. had high probative value; but- we:cannot say . that it -was • without , Value:. It was a Very simtsle tese to. !establish: the- Velocity of the water, which did riot 'recittire :an expert: to: make. Nor can . we say there.was sdcli lack of sinrilarity of -cOnditions as tO render it inadmissible on that2account. ' n The- test was made in• tha .same.bodY of water. It waS' not • Made until some di:maths after the death :of. MisS• Mahar, but. there was a _difference only of from-lour to six inches in .the flocid devet of the water: -A . human 'body. was -not used..in the test, bu , t ,t • h at .could not be epected. We corialUde; therefOre, there was no suCh ifr,of conditiOn g attending the test with . those incident to the tragedy as to render the' testimony. relating to the exPerithent ineOmpetent and . ' prejudicial. , St. Loyis,.I. M. &)Sl o. By. Ob.. v: McMid?,det, 115' Ark. 101,. 171 .S. W.. 115 ; St.. Loiti, I. & So. BY. Co. v. 117 :Ark. 457, 174 'S. W. 1183.;Bo ;qa . V.-S, R: Thom . . AYto Co., 137 Ark. 217, 208 S. W. 306'; Ifoitstoli V. 'State, 165 Ark: 294, 264 .S . ... W. 569,. : . • - ..; ...It is argued: that :the - court- refUsed . tu.permit full cross:examination -of the State!s-witnesses; and especially Miss Karps,iri.regard to thelengtb ortime she had spent jail...,- It :does, appear that the -court vas somewhat impatient; if not-. petulant, with counsel. for appellant, but this, may .have . So . appeared as the result of the efforts , of court to expedite ; the -trial. • In.thiS coimection:it may be said that the:efforts of, trial:courts: to -dispatch the busi-. ness before . ..them- is- commendable, but the Tights of an accused person, or: .a ;litigant before the . cOurt; to: fully arid : properly-present testimony -in his own behalf and, to : cross-examine witnesses* testifying ,adversely is of -more importance, and should not be- abridged, even for' the sake of expedition. While the court did interfere•more
98 TRAMMELL V. STATE. [193 than once with the cross-examination of Miss Karps, it does not appear that appellant's counsel was denied the right to ask any relevant question. Miss Karps admitted having been confined in jail on four separate occasions, and for several days at a time, but these incarcerations appear to have occurred subsequent to the tragedy and to have been related to it. Indeed, the coroner ordered her held to await the action of the grand jury after the inquest, and she was brought to Little Rock and confined in jail in that connection. She admitted that she had been brought into court from the local jail, where she was being held as a witness. These were all circumstances, brought out by counsel for appellant, going to the credibility of the witness, as the court stated to the jury. We are unable to say that the court abused its discretion by unduly limiting the right of cross-examination. The court gave § 2342, Crawford . 8z Moses' Digest, as an instruction : " The killing being proved, the burden of proving circumstances of mitigation that justify or excuse the homicide shall devolve on the accused, unless by the proof on the part of the prosecution it is sufficiently manifest that the offense committed only amounted to manslaughter, or that the accused was justified or excused in committing the homicide." Two objections were made to this instruction. The first was that the killing had not been proved, as the instruction apparently assumed. The second objection was that there was no issue of justifiable or excusable homicide in the case Answering these objections, it may first be said that the instruction does not assume that the killing was proved. It does not say that if death were proved, but that if the killing were proved. That remained a fact to be found by the jury, but, if found to be true, theri the law imposes upon the killer the burden of proving circumstances of mitigation that justify or excuse the homicide. And the second objection is answered by saying that if the killing were proved, then the burden stated is cast upon the accused. The law so provides.
ARK.] TRAMMELL V. STATE. 99 It is argued, in this connection, that the giving of this and other instructions on the lesser degrees of homicide resulted in the jury finding appellant guilty of voluntary manslaughter, whereas he was either guilty of murder in the first degree or of no crime at all. It has been frequently held, however, that this is an error of which the accused may not complain where the testimony supports.the finding that he was guilty of a higher degree of homicide than that for which he was convicted, as is the case here. Roberts v. State, 96 Ark. 58, 131 S. W. 60 ; McGough v. State, 113 Ark. 301, 167 S. W. 857 ; Arnold v. State, 179 Ark. 1066, 20 S. W. (2d) 189; Spear v. State, 184 Ark. 1047, 44 S. W. (2d) 663. The court gave an instruction numbered 18 reading as follows : "It is as competent to convict upon circumstantial evidence as upon positive evidence. Positive evidence is said to be that of eye-witnesses, people who testify as to the transaction that shows the guilt or innocence of the defendant. Circumstantial evidence is testimony as to circumstances from which guilt or innocence is proved or disproved, In cases of circumstantial evidence it is necessary, in order to convict, not only that the circumstances should point to and be consistent with the defendant's guilt, but. they should be inconsistent with any other reasonable hypothesis. This does not mean any more than this, that the facts and circumstances in the whole case taken together, if they should convince you • of his guilt beyond a reasonable doubt, it is sufficient to convict. If they do not, it is not sufficient." It is insisted that the last sentence of this instruction is in conflict with the remainder thereof, and operates to nullify the preceding portion. It is the usual, and probably the better, practice, in cases where circumstantial evidence is solely relied upon, to give an instruction to the effect that, in order to convict upon such evidence alone, the circumstances should point to and be consistent with the defendant's guilt, and should be inconsistent with any other reasonable hypothesis. But we have held that it was not error to
30 TRAMMELL V. STATE. [193 refuse to do so Where the jury was otherwise properly instructed on the questions of the presumption of innocence and the law as to a reasonable doubt. A number of cases to this effect are -cited in the case of Osburne v. State, 181 Ark. 661, 27 S. W. (2d) 783. In one of these, that of Jones v. State, 61 Ark. 88, 32 S. W. 81, a headnote reads as follows : "It is not error to refuse an instruction that, before defendant can be convicted of murder upon circumstantial testimony, the jury must find that the circumstances proved establish the guilt of defendant to the exclusion of evety other reasonable hypothesis, if the jury were properly instructed as to. the burden of proof resting upon the State and as to reasonable doubt." Justice HUGHES there quoted from the case of Green v. State, 38 Ark. 304, in which a similar instruction had been refused, the following statement by Chief Justice ENG-LISH : "In the case of Green v. State, 38 Ark. (304) 316, the appellant asked the following instruction, which was refused, to-wit : ' That in cases . of circumstantial evidence, before the jury can convict, the guilt of the defendant should be made out,- not only beyond a reasonable doubt, but to -the exclusion of every other reasonable hypothesis. In delivering the opinion of the court, Chief Justice ENGLISH said : 'It was . putting it very strong to require the State not only to prove the guilt of the accused beyond a reasonable doubt, but to go further and prove it to the exclusion of every other reasonable hypothesis. Either would be. sufficient.' There was no•error in refusing the instruction. asked by the appellant." See also Scott v. State, 180 Ark. 408, 21 S. W. (2d) 186. The last sentence in instruction numbered 18, set out above, does not negative the preceding portion. It merely explains it. The evidence in such cases must exclude every reasonable hypothesis of innocence, but this is done when the evidence convinces the jury beyond a reasonable doubt of the accused's guilt. There could be no finding that the accused was guilty beyond a reasonable doubt,, if it were also found that the testimony had established a reasonable explanation of the crime which was
ARK.] TRAMMELL v. STATE. 31 inconsistent with the finding that there was no reasonable doubt of the guilt of the accused. In the chapter on circumstantial evidence appearing in the 4th Edition of Underhill's Criminal Evidence, it is said that circumstantial evidence alone is sufficient to support a verdict of guilty of the most heinous crimes, provided the jury believes beyond a reasonable doubt that the accused is guilty upon the evidence, and this can never be where the evidence is entirely consistent with innocence, but that no greater degree of certainty in proof is required when the evidence is all circumstantial than where it is direct, as in either case the jury must be convinced of the prisoner's guilt beyond a reasonable doubt. It was there also said: " The first duty of the jury is to determine carefully upon all the testimony as stated by the wi i. iesses whether the incriminating circumstances, from which they may infer guilt, a;re proved beyond a reasonable doubt. A conviction is not warranted where the evidence is as consistent with innocence as it is with the hypothesis of guilt. A verdict of guilty cannot be sustained which does not exclude every reasonable hypothesis but that of guilt. Howeve . r, circumstantial evidence is not required to preclude all hypothesis except guilt, but it must exclude the possibility of innocence beyond a reasonable doubt." Section 17, pp. 19, 20, 21. Our own case of Withem v. State, 175 Ark. 453, 299 S. W. 739, is cited, among others, in support of the text quoted. We think the instruction, read in its entirety, conforms to this statement of the law. The evidence must exclude every reasonable hypothesis of innocence ; but this is done when the evidence convinces the jury of the prisoner 's guilt beyond a reasonable doubt. Certain other exceptions saved at the trial are argued in the briefs, and have been duly considered, but we find it unnecessary to ' discuss them. • Upon a consideration of -the whole case, we find the testimony legally sufficient to support the verdict, and that the trial was free from prejudicial error. The judgment must therefore be affirmed, and it is so ordered.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.