Ayers v. State, 5430
| Decision Date | 22 September 1969 |
| Docket Number | No. 5430,5430 |
| Citation | 247 Ark. 174,444 S.W.2d 695 |
| Parties | James AYERS, Appellant, v. STATE of Arkansas, Appellee. |
| Court | Arkansas Supreme Court |
Wootton, Land & Matthews, Hot Springs, for appellant.
Joe Purcell, Atty. Gen., Don Langston, Mike Wilson, Asst. Attys. Gen., Little Rock, for appellee.
James Ayers was convicted of negligent homicide on circumstantial evidence in the Hot Springs Municipal Court and was sentenced to one year in the county jail. His conviction was affirmed on appeal to the Garland County Circuit Court and he has appealed to this court, relying on the following points for reversal:
'The court erred in overruling defendant's motion to dismiss as the state's violation of criminal procedure had substantive effect.
The court erred in overruling the defendant's motion to exclude evidence including the blood test and other evidence solicited by the police officer from the defendant while in police custody.
The court erroneously permitted the arresting officer, George Riggs, to testify as to his conclusion as to the point of impact.
The court erroneously overruled the defendant's motion for judgment at the conclusion of the state's case.
When the trial court proceeds from clarification to development of the state's case, at that point the court becomes an advocate and at that point reversible error has been committed.
Reasonable hypotheses were not excluded and the conviction of the defendant was, therefore, at best, a guess.'
Since we must reverse on appellant's fourth and sixth points, we shall not discuss the others.
The record reveals the following facts: About midnight on December 19, 1968, a 1963 Thunderbird automobile, being driven by Ayers, collided with a 1954 Pontiac automobile being driven by E. G. Beckwith. Both drivers were taken to a hospital in Hot Springs, but Beckwith was dead upon arrival. Ayers was charged with negligent homicide under Ark.Stat.Ann. § 75--1001 (Repl.1957) which provides in part as follows:
'(a) When the death of any person ensues within one (1) year as a proximate result of injury received by the driving of any vehicle in reckless or wanton disregard of the safety of others, the person so operating such vehicle shall be guilty of negligent homicide.'
The record is not as clear as it might have been as to the exact location of the scene of the collision in relation to the city limits of Hot Springs, but it occurred in Garland County apparently on a two-lane section of new Highway 70 leading east from Hot Springs toward Lonsdale Benton and Little Rock. From the exhibited photographs of the scene of the collision, the highway is plainly marked by a double stripe painted in the center of the blacktop pavement dividing the two traffic lanes from each other and by a single stripe along the outside edge of each traffic lane, dividing it from the gravel shoulder of the highway.
There is considerable difference in the rules of evidence pertaining to criminal prosecutions as distinguished from civil actions. In a criminal prosecution, the accused remains innocent until proven guilty and the entire burden of proof rests on the state to prove the accused guilty beyond a reasonable doubt. In civil actions, the greater weight, or preponderance of the evidence, rule applies. Circumstantial evidence, as well as direct evidence, comes within the same rule.
In Nichols, Applied Evidence, vol. 2, §§ 11, 13 and 24, at pages 1066--1069, the differences in the rule as applied to criminal and civil cases are well pointed out, as follows:
(In criminal prosecutions).
' § 11. * * * In order to sustain a conviction based solely on circumstantial evidence, the circumstances must be consistent with the guilt of the accused and inconsistent with his innocence, and incapable of explanation on any other reasonable hypotheses than that of guilt. When the circumstances are of such a character as to fairly permit an inference consistent with innocence, they cannot be regarded as sufficient to support a conviction. Where circumstantial evidence is relied on for a conviction, it is not sufficient that it raises a mere suspicion of guilt, but it must establish facts inconsistent with innocence. This rule as to the sufficiency of circumstantial evidence to sustain a conviction is applicable to misdemeanors as well as felonies.
§ 13. * * * To warrant a conviction on circumstantial evidence alone, the same degree of certainty is required as where the evidence is direct, namely, the evidence must satisfy the jury beyond a reasonable doubt.
(In civil cases).
§ 24. * * * Circumstantial evidence in a civil case need not rise to that degree of certainty which excludes every reasonable conclusion other than the one arrived at by the jury. Circumstantial evidence in a civil case need only produce moral certainty in an unprejudiced mind; and where it furnishes support for plaintiff's theory, and tends to exclude any other theory, it is sufficient to support a verdict for him. Where plaintiff's case rests on circumstantial evidence, the circumstances must not only be consistent with his theory, but, when weighed with the opposing evidence, must have more convincing force substantiating the theory contended for, from which theory it results that the greater probability is in favor of the party upon whom the burden rests. When rights of parties depend on conflicting testimony, there is often as much evidentiary weight in lack of circumstances as in positive proof.'
In 20 Am.Jur., § 1217, Circumstantial Evidence, at page 1069 is found the following:
This court has on more than one occasion stated the rule on circumstantial evidence in criminal cases to be, as follows:
'(W)here circumstantial evidence alone is relied upon to establish guilt of one charged with a crime, such evidence must exclude every other reasonable hypothesis but the guilt of the accused.' Turner v. State, 192 Ark. 937, 96 S.W.2d 455; Logi v. State, 153 Ark. 317, 240 S.W. 400; Jones v. State, 246 Ark. 1057, 441 S.W.2d 458.
'A conviction resting upon evidence which fails to come up to the standard prescribed by law is contrary to law, and it is the duty of the court to set aside the verdict.' Logi v. State, supra.
With this rule in mind, and viewing the evidence in the light most favorable to the state, we now examine the evidence for a determination of whether there was any substantial evidence that Mr. Beckwith's death was the proximate result of Mr. Ayers driving his vehicle in a reckless or wanton disregard for the safety of others.
It was stipulated that chemical tests revealed that both drivers, the deceased and the appellant, had 0.15 per cent by weight, of alcohol in their blood upon examination at the hospital following the collision. In connection with the offense of driving under the influence of alcohol, Ark.Stat.Ann. § 75--1031.1(A), par. 3 (Supp.1967) provides:
'If there was at that time 0.15 percent or more by weight of alcohol in the defendant's blood, urine, breath or other bodily substance, it shall be presumed that the defendant was under the influence of intoxicating liquor.'
The stipulation as to chemical analyses and the statutory presumption speak with equal force for both drivers as to their being under the influence of intoxicating liquor.
No one testified as an eye witness to the collision. The only evidence that either vehicle was being driven in a reckless or wanton disregard of the safety of others, at the time of the collision, was the circumstantial evidence consisting of debris and marks on the pavement, tending to prove that the two automobiles came together with the point of impact being about two feet north of the center line, in the west bound traffic lane of the highway. The physical damage to the left fronts and sides of both automobiles would be circumstances tending to prove that they were traveling in opposite directions at the time of the collision, but the conflicting evidence as to the directions the respective automobiles may have been traveling leaves the hypothesis to be drawn from all the evidence subject to surmise and conjecture. There is no direct evidence as to the direction either automobile was traveling at the time of the collision.
Laura Dawson, a witness for the state, testified that she lived at Benton and that she and Jerry Emory were passengers in the automobile being driven by the appellant at the time of the collision. She testified that they had gone to Little Rock about 8:30 or 9 p.m., earlier in the evening, and that the appellant had driven in a normal manner within the legal speed limits with nothing erratic about his driving, both to and from Little Rock. She testified that she was asleep at the time of the actual collision. Miss Dawson testified under cross-examination, as follows:
'Q. And where were you...
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Howard v. State
...intended in this case where the evidence is susceptible of a number of different interpretations. This court in Ayers v. State, 247 Ark. 174, 177-178, 444 S.W.2d 695 (1969), quoted 20 AM. Jun. Circumstantial Evidence § 1217 where the following is Where circumstantial evidence is relied upon......
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Howard v. State
...intended in this case where the evidence is susceptible of a number of different interpretations. This court in Ayers v. State, 247 Ark. 174, 177-178, 444 S.W.2d 695 (1969), quoted 20 Am. Jur. Circumstantial Evidence § 1217 where the following is Where circumstantial evidence is relied upon......
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Perry v. State
...all circumstantial, it did not rise to the level of proof required for conviction. The appellant correctly relies on Ayers v. State, 247 Ark. 174, 444 S.W.2d 695 (1969), for the proposition that when evidence is all of a circumstantial nature, every other reasonable hypothesis but the guilt......
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Upton v. State
...are excluded. Jones v. State, 246 Ark. 1057, 441 S.W.2d 458; Ledford v. State, 234 Ark. 226, 351 S.W.2d 425. See also Ayers v. State, 247 Ark. 174, 444 S.W.2d 695; Taylor v. State, 178 Ark. 1200, 10 S.W.2d True enough, his confession, which was admitted, left nothing to speculation. As rela......