Black v. State
| Decision Date | 20 June 1949 |
| Docket Number | 4562 |
| Parties | Black v. State |
| Court | Arkansas Supreme Court |
Rehearing Denied October 3, 1949.
Appeal from Pulaski Circuit Court, First Division; Gus Fulk, Judge.
Affirmed.
Robert J. Brown, Joe W. McCoy, W. H. Glover and Carl Langston, for appellant.
Ike Murry, Attorney General, and Jeff Duty, Assistant Attorney General, for appellee.
OPINION
Appellant was put to trial upon an information charging him with the crime of murder in the first degree, alleged to have been committed in the perpetration of the crime of rape upon the person of Betty Jane McCall. He was found guilty of the offense charged and was given a death sentence, from which judgment is this appeal.
Appellant moved to quash the jury panel upon the ground that no female was on the jury. It was shown that although the number of women who were qualified electors eligible for jury service in Pulaski County, where the case was tried, was nearly as large as the number of male persons eligible for jury service, no woman had been selected for jury service in the criminal division of the circuit court for a long number of years and none had served as jurors in that division of the circuit court. An exception was saved to the action of the court in overruling the motion to quash the panel.
The identical question here raised was presented in the case of Bailey v. State, ante, p. 53, 219 S.W.2d 424, which like the instant case came up from the Pulaski Circuit Court, and what was said there is controlling here. After a review of the authorities, which we do not repeat, it was there said:
"We think the inference deducible from the Fay case (332 U.S 261, 61 S.Ct. 1613, 91 L.Ed. 2043), is that where a State does not impose upon women as a class the inescapable duty of jury service, a defendant who complains that due process was denied, or that he was not afforded the equal protection contemplated by the Fourteenth Amendment, must show something more than continuing failure of jury commissioners to call women for services in a division of the Court where the innate refinement peculiar to women would be assailed with verbal expressions, gestures, conversations and demonstrations from which most would recoil."
Miss McCall, an unmarried woman, was killed on the night of the 23rd of September, 1948, at some hour between 1:30 a. m., and 4:00 a. m. The undisputed testimony shows that Miss McCall, who was employed as acting director of nursing education at the Veterans Hospital at Ft. Roots, near Little Rock, drove her car to a filling station where appellant was employed in the city of Little Rock, for battery service, and while the service was being rendered an engagement was made for appellant to escort Miss McCall to a night club where they might engage in dancing. They had never met before. Miss McCall gave appellant her address and telephone number, and on the following Wednesday he called her on the phone and she agreed to come for him at his place of business in her car. She did so, and upon her arrival appellant took the wheel and thereafter did all the driving.
They started to a suburban night club. On the way appellant bought a bottle of whiskey. When arrested he told the officer who arrested him that he had bought a pint of whiskey. At the trial he testified that he bought a bottle containing 1/5th of a gallon.
They were accompanied to the night club by appellant's roommate, a young man named Jimmy Wells, and his companion, a young lady named Miss Mills. Appellant introduced this couple to Miss McCall as they had never met before. The four drove to the night club where appellant secured ice and prepared drinks, but only he and Miss McCall drank. The other couple did not drink. There is some question as to whether Miss McCall drank, but we think the fair implication is that she did.
After drinking and dancing for a time, Miss McCall broke the strap on one of her shoes, and the party returned to town, leaving Wells and Miss Mills at a service station where Wells was employed. Appellant and Miss McCall drove to Miss McCall's apartment. Her roommate testified that Miss McCall arrived there about 11:15 and after changing her shoes she and appellant returned to the night club. The last person testifying in the case who saw deceased alive was the band leader at the night club, who knew appellant and spoke to him and the band leader testified that appellant and deceased left the night club about 1:30 a. m. No other person testifying in the case, except appellant, thereafter saw her alive.
The next person who saw deceased at all was appellant's roommate, Jimmy Wells, who testified that he was awakened by appellant about 4:00 a. m., who told him that Miss McCall was in the car and he thought she was dead. Appellant asked Wells if he should drive to a hospital, but when Wells saw that Miss McCall was dead, he told appellant to drive to the police station, which appellant did.
Upon reaching the police station the police saw the dead body of Miss McCall lying with her head in the window of the car. The police arrested appellant and called the Prosecuting Attorney, and the deputy prosecuting attorney came, with a young lady stenographer who reported stenographically all that was said after her arrival. The deputy prosecuting attorney asked appellant if he wished to make a statement, and advised him that anything he said might be used against him. He was not asked if he wanted to see an attorney before making his statement.
The undisputed testimony is that appellant's statements were made freely and voluntarily and without duress, threats or promises of any kind. The statement was not in the nature of a confession, but was a narrative of what had occurred between appellant and deceased. He admitted that he had sexual intercourse with deceased, but said it was with her assistance, and he denied any intention of killing deceased. Asked if deceased resisted him, he stated that she did for a time, but that he "got it."
The stenographer had transcribed her notes, and the deputy prosecuting attorney had the transcription thereof in his hand while cross-examining appellant. Objection was made and overruled to the use of these notes. Had a confession been shown, it would have been improper to introduce any part thereof without introducing the whole statement; however, the deputy prosecuting attorney in his examination of appellant offered to submit the transcription to appellant's attorney, which offer was declined. The principal use of the transcription was to ask appellant if he had made certain statements disclosed by the transcription, some of which he admitted, while others were denied. The testimony on the part of the state was to the effect that appellant had made at the police station certain statements which he denied having made while testifying as a witness at the trial. We...
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