Alford v. State

• Decision Date: 15 March 1954
• Docket Number: No. 4760,4760
• Parties: ALFORD v. STATE.
• Court: Arkansas Supreme Court

Page 804

266 S.W.2d 804

223 Ark. 330

ALFORD v. STATE.

No. 4760.

Supreme Court of Arkansas.

March 15, 1954.

Rehearing Denied and Dissenting Opinion Filed April 26, 1954.

Wiley A. Branton, Pine Bluff, for appellant.

Tom Gentry, Atty. Gen., Thorp Thomas, Asst. Atty. Gen., for appellee.

GEORGE ROSE SMITH, Justice.

The appellant was convicted of rape and was sentenced to death. In our opinion there are two errors in the record which entitle the appellant to a new trial.

Although it is contended that the evidence is insufficient to support the verdict we find this contention to be without merit. The prosecutrix, Mrs. Morman, testified that shortly after midnight on May 26, 1953, Alford entered the isolated railroad building in which she was working as a telegrapher. When he revealed his purpose Mrs. Morman gave him her watch and money in the hope of dissuading him, but Alford threatened her with a hunting knife, dragged her from the building, and raped her. Two residents in the vicinity heard Mrs. Morman's screams. A physician who examined her later in the night found bruises on many parts of her body and semen within the vaginal tract. The watch was later found in Alford's home. The defendant did not testify. We regard the testimony as ample to support the conviction.

We think, however, that the court was in error in failing to inform the jury of its option to impose either the death sentence or life imprisonment. Since this option lies entirely with the jury the court is under the affirmative duty of bringing the matter to the jury's attention, even though that action is not requested by the accused. Webb v. State, 154 Ark. 67, 242 S.W. 380; Smith v. State, 205 Ark. 1075, 172 S.W.2d 248, 249.

In the case at bar the penalty for rape was not mentioned in the court's instructions. Nor is it shown that, when the forms of verdict were given to the jury by the court, any oral explanation of the forms was made. Two of these forms provided for a finding of guilty on the charge of rape, one fixing the punishment at death and the other at life imprisonment. It is of course possible--it is perhaps quite probable--that the members of the jury so thoroughly discussed these forms that each juror understood his choice in the matter. But it is also possible that the alternative punishments were not discussed and that all the jurors did not examine the forms. In the latter case it might be impossible to discover the error, for jurors cannot impeach their verdict. In a matter of such grave importance we think that even the possibility of misunderstanding should be avoided. The court should explain the penalties to the jury as a whole, so that the record will disclose with certainty that the information was received by all the jurors.

Second, a Mrs. Austin was permitted to testify that on a night during the first half of May the defendant, by the use of a gun, forced her husband and her from their car, took her to a vacant house nearby, and attempted to rape her, although he at last yielded to her entreaties and desisted without having accomplished his purpose. The court instructed the jury, in substance, that Alford could not be convicted upon Mrs. Austin's testimony, that evidence having been admitted only to show design, particular intention, knowledge, or good or bad faith. The appellant insists that the admission of this testimony was prejudicial error. The State contends that proof of a recent offense of a similar nature is competent.

This question of introducing proof of other offenses in criminal cases has been considered by us on more than a hundred occasions. In reviewing these opinions one notices that the results reached in the various cases have been harmonious to a high degree. There have occasionally been dicta that went beyond the requirements of the case under consideration, and with so many decisions to choose from it is of course possible to pluck sentences from their factual background and in that way to advance a plausible argument supporting either the reception or the exclusion of evidence concerning almost any prior offense. But when each statement of law is weighed in its own setting of fact the opinions may be readily reconciled with one another.

No one doubts that fundamental rule of exclusion, which forbids the prosecution from proving the commission of one crime by proof of the commission of another. The State is not permitted to adduce evidence of other offenses for the purpose of persuading the jury that the accused is a criminal and is therefore likely to be guilty of the charge under investigation. In short, proof of other crimes is never admitted when its only relevancy is to show that the prisoner is a man of bad character, addicted to crime.

The rule itself has been announced in some fifty decisions of this court and is so familiar that we need not discuss at length the reasons for its acceptance by every English and American court. Basically, the rule rests upon that spirit of fair play which, perhaps more than anything else, distinguishes Anglo-American law from the jurisprudence of other nations. Our theory is simply that a finding of guilty should rest upon proof, beyond a reasonable doubt, that the accused committed the exact offense for which he is being tried. We do not permit the State to bolster its appeal to the jury by proof of prior convictions, with their conclusive presumption of verity, and still less is there reason to allow the jury to be prejudiced by mere accusations of earlier misconduct on the part of the defendant. If the accused has committed other crimes, each may be examined separately in a court of law, and punishment may be imposed for those established with the required certainty. In this way alone can we avoid the elements of unfair surprise and undue prejudice that necessarily attend trial by accusation in place of trial upon facts demonstrated beyond a reasonable doubt.

The rule is designed to protect the innocent, but it is often invoked as a basis for excluding any evidence that tends to show the commission of another offense. We have repeatedly rejected unfounded appeals to the protection of the basic rule of exclusion. If other conduct on the part of the accused is independently relevant to the main issue--relevant in the sense of tending to prove some material point rather than merely to prove that the defendant is a criminal--then evidence of that conduct may be admissible, with a proper cautionary instruction by the court. 'While the principle is usually spoken of as being an exception to the general rule, yet, as a matter of fact, it is not an exception; for it is not proof of other crimes as crimes, but merely evidence of other acts which are from their nature competent as showing knowledge, intent, or design, although they may be crimes, which is admitted. In other words, the fact that evidence shows the defendant was guilty of another crime does not prevent it being admissible when otherwise it would be competent on the issue under trial.' State v. Dulaney, 87 Ark. 17, 112 S.W. 158, 160.

Although, as stated in the above quotation, the instances of admissibility are not really exceptions to the exclusionary principle, most courts, including this one, have often found it convenient to catalogue examples of competent testimony as exceptions to the general rule of inadmissibility. The only disadvantage in this approach is the possibility that incompetent evidence may be admitted under the guise of an exception or that competent proof may be ruled out for want of an exception that seems to fit the case. Stone, The Rule of Exclusion of Similar Fact Evidence: America, 51 Harv.L.Rev. 988.

The State contends that evidence of recent similar offenses is admissible in criminal cases. While that broad statement has appeared in a few opinions, it must on each occasion be read in context. Taken as a whole, our decisions do not support the view that the sole test of competency is the recency of the other offense and the similarity of its nature. Indeed, if that test were applied woodenly in each case the result would be to deprive the accused of much of the protection that the rule is intended to afford.

Superficially similar to the case at bar are those decisions holding that in trials for incest or carnal abuse the State may show other acts of intercourse between the same parties. Adams v. State, 78 Ark. 16, 92 S.W. 1123; Williams v. State, 156 Ark. 205, 246 S.W. 503, 504. But obviously such testimony is directly relevant to the question at issue. As stated in the Williams case, such prior acts of intercourse show 'the relation and intimacy of the parties, their disposition and antecedent conduct towards each other,' and for that reason the evidence aids the jury in determining whether the offense was committed on the particular occasion charged in the indictment.

Again, where the charge involves unnatural sexual acts proof of prior similar offenses has been received. Hummel v. State, 210 Ark. 471, 196 S.W.2d 594; Roach v. State, Ark., 262 S.W.2d 647. Such evidence shows not that the accused is a criminal but that he has 'a depraved sexual instinct,' to quote Judge Parker's phrase in Lovely v. United States, 4 Cir., 169 F.2d 386.

Perhaps the most frequent resort to evidence of recent similar offenses occurs in the cases involving guilty knowledge. In such cases good faith would be a defense to the charge; the vital issue is whether the defendant knew his conduct to be wrongful. For example, it is not a crime to pass a forged check in the belief that it is genuine, but the same conduct is criminal when done with knowledge that the instrument is bogus. Since it is highly improbable that an innocent man would repeatedly come into possession of forged checks, proof of recent similar offenses bears directly on the issue of guilty knowledge. In this category fall cases involving forgery, counterfeiting, false pretenses, knowledge that an...