Bivens v. State

• Decision Date: 17 April 1967
• Docket Number: No. 5259,5259
• Citation: 242 Ark. 362,413 S.W.2d 653
• Parties: Don BIVENS, Appellant, v. The STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 653

413 S.W.2d 653

242 Ark. 362

Don BIVENS, Appellant, v. The STATE of Arkansas, Appellee.

No. 5259.

Supreme Court of Arkansas.

April 17, 1967.

Pryor & Barnes, Camden, for appellant.

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

FOGLEMAN, Justice.

Appellant seeks reversal of his conviction of voluntary manslaughter upon the ground that an admission of guilt by appellant was improperly admitted into evidence and that there was no other evidence that tended to prove his guilt.

On the night of the alleged offense, appellant attended a dance at the Lafayette High School gymnasium and while he was there a fight started. The deceased, one James Carpenter, and appellant were watching the fight from the bleachers when they became involved in a fight themselves and rolled down to the floor at the bottom. There Carpenter was pulled off appellant by Ellis Wilkins, the latter's cousin, and appellant admits that Carpenter had been cut and was bleeding at that time. It was shown that Carpenter died as the result of a stab wound.

Ellis Wilkins said that after the fight, appellant gave him a large knife which he put in his pocket. After the police came he gave it to one Martha Johnson who took it home with her. Wilkins guessed that appellant started to help one of the participants in the first fight and that the deceased then jumped on appellant. He said that he went over where the fight was going on because one of those in the first fight had previously beaten appellant up.

Martha Johnson, who was sitting with Ellis Wilkins when the fight started, said that she put the knife in her 'bosoms', took it home and put it in a box. She said her mother put it down the hole in an 'outdoors bathroom', but got it out when the police asked her for it. She had been something black and brown that looked like blood on the knife.

Dorothy Geneva Morgan said that while she was coming out the door of the 'gym' she overheard Bivens say to Wilkins, 'I tried to kill the * * *'.

Sheriff Grover Linebarier, accompanied by his deputy Paul Parrish, arrested appellant at the latter's home in Keystone in the early morning hours after the incident. He testified that on the way in, without questioning by the officers, appellant, on his own accord, said that he knew he cut the boy but he didn't think he cut him that bad. The sheriff said that he had at the time of the arrest told appellant that the boy he had allegedly cut had died and they were going to take him in for further questioning. The sheriff stated that he had not warned appellant of his right to counsel and against self incrimination as they were not questioning him and were not prepared to take a statement, although he was arrested as the only suspect.

No objection was made to the testimony of the sheriff, there was no motion to strike any part of his testimony, and there was no motion for a directed verdict of acquittal. The sufficiency of the evidence and the admissibility of appellant's statement to the sheriff were first questioned in a motion for new trial. In that motion appellant states that his admission was rendered inadmissible because appellant was not advised of his right to counsel and his right against self incrimination.

Appellant's contention as to insufficiency of evidence for want of corroboration of his extrajudicial 'confession' might properly have been raised by motion for a directed verdict. Ark.Stat.Ann. § 43--2117 (Repl. 1964). While it has been held by this court that the sufficiency of the evidence to sustain the verdict of a jury will be reviewed even in the absence of a request for a directed verdict (Murray v. State, 240 Ark. 32, 397 S.W.2d 812), the failure to make the motion is some indication that appellant's counsel probably felt at that time there was sufficient corroborating evidence to make a question for the jury. The statute only requires that an extrajudicial confession be accompanied by other proof that such an offense was committed. Ark.Stat.Ann. § 43--2115 (Repl. 1964). The test of the correctness of the verdict is not whether there was sufficient evidence to sustain a conviction, but whether there was evidence that such an offense was committed or, in other words, proof of the corpus delicti. Charles v. State, 198 Ark. 1154, 133 S.W.2d 26; Forester v. State, 224 Ark. 194, 272 S.W.2d 320; Hargett v. State, 235 Ark. 189, 357 S.W.2d 533; Clay v. State, 236 Ark. 398, 366 S.W.2d 299; Stewart v. State, 237 Ark. 748, 375 S.W.2d 804.

The evidence showing that decedent died as a result of a stab wound, that he and appellant were engaged in some kind of physical altercation and that appellant tried to dispose of a knife of which he had possession is ample proof that a crime was committed and to connect appellant with it, in the absence of his admission or confession. A confession by an accused that he shot the prosecuting witness was held sufficiently corroborated on a charge of assault with intent to murder by testimony by the latter that someone shot him. Johnson v. State, 135 Ark. 377, 205 S.W. 646. In the absence of evidence suggestive of any means other than violence as cause of death, identification of a skeleton as that of defendant's wife who was last seen with the defendant before she disappeared following a quarrel with him was held sufficient corroboration of a confession in Hall v. State, 209 Ark. 180, 189 S.W.2d 917. The discovery of blood in the deceased's cabin and a trail of blood leading to a river where his body was recovered was held sufficient in Penton v. State, 194 Ark. 503, 109 S.W.2d 131. Where death of deceased was caused by gaping head wounds which appeared to have been inflicted with a hammer of the type found at appellant's employer's place of business with...