Ballew v. State

• Decision Date: 02 June 1969
• Docket Number: No. 5411,5411
• Parties: Bobby Gene BALLEW et al., Appellants, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 453

441 S.W.2d 453

246 Ark. 1191

Bobby Gene BALLEW et al., Appellants, v. STATE of Arkansas, Appellee.

No. 5411.

Supreme Court of Arkansas.

June 2, 1969.

Marvin L. Kieffer, Jonesboro, for appellants.

Joe Purcell, Atty. Gen., Don Langston, Mike Wilson, Asst. Attys. Gen., Little Rock, for appellee.

HOLT, Justice.

The appellants, who are brothers, were jointly charged by information with the offense of assault with intent to kill. A jury found them guilty and assessed the punishment of Bobby Gene Ballew at fifteen years and Rodger Huey Ballew at twelve years imprisonment in the state penitentiary. From the judgments on these verdicts comes this appeal.

For reversal, the appellants, through court appointed counsel, contend that the evidence is insufficient to support the verdicts. On appeal we must review the evidence in the light most favorable to the appellee and if there is any substantial evidence to support these verdicts then the verdicts must be sustained. Finley v. State, 233 Ark. 232, 343 S.W.2d 787 (1961).

The appellant, Bobby Ballew, had been 'dating' Omega Wallace Coots, the prosecutrix, for about a year. Eventually, Mrs. Coots informed him that she desired to return to her children's father from whom she was divorced. The appellant threatened, on several occasions, to kill her, if this should happen. The night before the alleged assault, she and this appellant argued most of the night at her house about her intention to return to her former husband. Bobby Ballew again repeated his threat to kill her. About noon the following day he left her house. Both appellants had spent the night there.

About 2:00 A.M. the next day both appellants appeared at a friend's house and borrowed his shotgun and some shells with the explanation that they were going to use it to go rabbit hunting. They were given several shells. Among the shells were some old ones and one containing a deer slug. They were told that the latter would fire since it was a new shell. They knew that Mrs. Coots was not at her residence and was spending the night at her father's. Appellants parked their car about three blocks from the father's house. They took the gun and walked this distance to his house where Rodger Ballew knocked on the door and called Mrs. Coots to the door telling her that his brother wanted to talk to her. Bobby Ballew then asked the prosecutrix if she was going back to her former husband. When she replied affirmatively, Bobby Ballew told his brother, Rodger Ballew, 'Go back of the house and make damn sure nobody comes around front where I'm at.' Rodger Ballew complied. Mrs. Coots went back in the house and closed the door. The appellant, Bobby Ballew, shot through the door. Mrs. Coots' father found her lying on the floor suffering from a wound from the deer slug that penetrated her side and stomach. Bobby Ballew heard what appeared to be 'her scream.'

The appellants fled the scene and went to a relative's residence, got some breakfast, and prevailed upon the relative to take them to a nearby river boat landing. They were apprehended later in the day in this vicinity.

In Nunley v. State, 223 Ark. 838, 270 S.W.2d 904 (1954), we find the applicable rule of law governing the sufficiency of the evidence in this case. There it is said:

While the intent to kill cannot be implied as a matter of law, it may be inferred from facts and circumstances of the assault, such as the use of a deadly weapon in a manner indicating an intention to kill, or an act of violence which ordinarily would be calculated to produce death, or great bodily harm. In determining whether or not the intent to kill should be inferred, the trier of the facts may properly consider the character of the weapon employed and the way it was used; the manner of the assault and the violence attendant thereon; the nature extent and location on the body of the wound inflicted, if any; the state of feeling existing between the parties at and anterior to the difficulty; statements of the defendant, if any, and all other facts and circumstances tending to reveal defendant's state of mind. (Citing cases.) It is not essential that the intent should have existed for any particular length of time before the assault, as it may be conceived in a moment.

To the same effect see Murry v. State, 209 Ark. 1062, 194 S.W.2d 182 (1946).

The distinction between an accessory and a principal is now abolished and an accessory is equally as guilty of a crime as is his principal. Ark.Stat.Ann. § 41--118 (Repl.1964); Rush v. State, 239 Ark. 878, 395 S.W.2d 3 (1965).

In the case at bar we are of the view that there is ample evidence of a substantial nature to support both verdicts rendered by the jury. It follows that the court correctly refused to direct a verdict of not guilty requested by the appellant, Rodger Ballew, and properly denied the motion of both appellants for a new trial based upon insufficiency of the evidence.

For reversal it is further urged that the trial court erred in denying the motion to suppress the introduction of the shotgun as evidence. We cannot agree. When the officers discovered the appellants they were ordered to stop running and walk toward the officers from a distance of approximately 500 feet, with their hands raised. It was necessary for the appellants to wade a shallow 'seep ditch' at a levee. At times the weeds and brush were of such a height that the appellants were partially obscured. When the appellants were approaching the officers one of them stooped down. They were asked the whereabouts of the shotgun. The officers were told that it was nearby in a 'hollow log.' It was found there contemporaneous with the arrest. It is argued that this procedure is in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), which requires that the accused must be warned of his constitutional rights against self-incrimination before any interrogation is begun. In other words, it is insisted that a Miranda warning should have preceded the inquiry.

We have recently held that a Miranda warning is not required to be given in every instance the moment a suspect is taken into custody. Edington v. State, 243 Ark. 10, 418 S.W.2d 637 (1967); Haire v. State, 245 Ark. 293, 432 S.W.2d 828 (1968). In those cases we held that a spontaneous statement was admissible. In the case at bar, we think the statement that the shotgun was in a 'hollow log' was in the nature of a spontaneous admission. We do not agree that Miranda can be construed or is intended as being applicable in these circumstances.

Further, in the case at bar the officers, based upon probable cause, were effecting the legal arrest of the appellants who were fleeing from the scene of an alleged crime which had recently been committed by the use of a shotgun. It the circumstances it must be said that the officers had a right to inquire of the presence or whereabouts of the weapon for their own safety as well as to prevent escape and the destruction of evidence as being incidental to a lawful arrest.

We find no merit in appellants' contention that there was an infringement of any constitutional right by the shotgun being thus discovered and used as evidence in the case at bar.

It is asserted that the court erred in denying appellant Bobby Ballew's motion to suppress his confession. The appellants both testified that they were wet, cold, hungry, and sick; that the police told them it would go easier on them if they made a statement; that they were interrogated and signed a waiver of rights and confessions in a police dominated atmosphere, all of which rendered their statements coerced and involuntary. There was evidence contradicting these assertions. Evidence was adduced by the state that the Miranda warning was given and that appellant, Bobby Ballew, signed a 'waiver of rights' before he was questioned and thereafter voluntarily signed the questioned confession. The trial court, in a Denno procedure in chambers, found that appellant, Bobby Ballew, was thirty-one years old and had made a voluntary statement with the knowledge and intelligence to understand the Miranda warning with reference to his constitutional rights. From our independent review of the record, we think the trial court's ruling is sustained by the evidence. Harris v. State, 244 Ark. 314, 425 S.W.2d 293 (1968); Mosley v. State, 246 Ark. 358, 438 S.W.2d 311 (1969). Therefore, we find no merit in this contention.

It is next contended that the trial court erred in denying appellant Rodger Ballew's motion for a...