Boyd v. State

• Decision Date: 12 October 1959
• Docket Number: No. 4946,4946
• Parties: James BOYD and Willie Henry Byrd, Appellants, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 122

328 S.W.2d 122

230 Ark. 991

James BOYD and Willie Henry Byrd, Appellants, v. STATE of Arkansas, Appellee.

No. 4946.

Supreme Court of Arkansas.

Oct. 12, 1959.

Rehearing Denied Nov. 9, 1959.

W. Harold Flowers, Pine Bluff, for appellants.

Bruce Bennett, Atty. Gen., by Thorp Thomas, Asst. Atty. Gen., for appellee.

McFADDIN, Justice.

Appellants, James Boyd and Willie Henry Byrd, were convicted in the Miller Circuit Court in December 1958 of the crime of first degree murder for the homicide of M. R. Hamm. They were each sentenced to death; and from such judgments they prosecute this appeal.

This is the second appearance of these appellants in this Court in connection with the homicide of M. R. Hamm. In Moore v. State, 227 Ark. 544, 299 S.W.2d 838, there were four appellants, being James Moore, Rogers Boone, James Boyd (present appellant), and Willie Henry Byrd (present appellant). After the reversal in the said case of Moore v. State, James Moore obtained a severance. He was again tried, convicted, and sentenced to death; and we affirmed that judgment in Moore v. State, Ark., 315 S.W.2d 907; and the United States Supreme Court denied certiorari on January 26, 1959. 358 U.S. 946, 79 S.Ct. 356, 3 L.Ed.2d 353. Rogers Boone likewise obtained a severance; was again tried, convicted, and sentenced to death; and we affirmed that judgment in Boone v. State, Ark., 327 S.W.2d 87.

The present appellants, James Boyd and Willie Henry Byrd, waived severance and were jointly tried in December 1958, convicted, and sentenced to death, as aforesaid; and those judgments are now before us on this appeal. This being a capital case, we have reviewed every objection in the record (§ 43-2723 Ark.Stats.); and find no objection that requires a reversal. We discuss, however, some of the objections.

I. Motion To Quash The Information. This motion related to both of the defendants and was urged because the appellants were being tried on an information filed by the Prosecuting Attorney instead of an indictment returned by a Grand Jury. We fully discussed this point and held it to be without merit in Moore v. State, Ark., 315 S.W.2d 907; and what we there said is applicable here.

II. The Case Against Willie Henry Byrd. Appellant Byrd says that his confession was illegally admitted into evidence. It was shown that M. R. Hamm died on May 9, 1956; that Byrd and the other three thought to be implicated in the murder of M. R. Hamm, were taken into custody on May 15, 1956; that the Prosecuting Attorney's office was at Arkadelphia, a distance of about eighty miles from Texarkana; that Byrd and the other three accused persons were advised that they would be taken to Arkadelphia to the Prosecuting Attorney and then to the State Penitentiary at Cummins Farm south of Pine Bluff; that the four prisoners were in the back seat of the car and three officers in the front seat; that they reached Arkadelphia about 8:00 P.M. and were served with food; that the prisoners were questioned separately and sometimes together; that appellant Byrd was advised that he did not have to make any statement; that Byrd's statement was made freely and voluntarily; that the statement was signed by him; that Moore and Boone both signed statements; and that all of the prisoners were then taken to the State Penitentiary at Cummins Farm for safekeeping.

The burden was on the State to prove that the confession was voluntary. Love v. State, 22 Ark. 336; Smith v. State, 74 Ark. 397, 85 S.W. 1123; and Cush v. State, 180 Ark. 448, 21 S.W.2d 616. In determining whether a confession is voluntary, the Court should look to the whole situation and surroundings of the accused. Dewein v. State, 114 Ark. 472, 170 S.W. 582; Brown v. State, 198 Ark. 920, 132 S.W.2d 15. When the State sought to introduce the appellant's confession, the hearing was recessed to the Judge's chambers for the Trial Judge--in the absence of the jury--to see if there was sufficient evidence of voluntariness to submit the issue to the jury. Such is in accordance with our frequently stated procedure. Charles v. State, 198 Ark. 1154, 133 S.W.2d 26; Brown v. State, 198 Ark. 920, 132 S.W. 15; Hendrix v. State, 200 Ark. 973, 141 S.W.2d 852; Nolan and Guthrie v. State, 205 Ark. 103, 167 S.W.2d 503. The Trial Court correctly ruled that there was sufficient evidence offered to take the case to the jury on the voluntariness of the confession of Byrd, and, thereupon, the hearing was resumed before the jury.

We hold that there was abundant evidence to take the case to the jury as against Willie Henry Byrd; that the jury was correctly instructed; ¹ that there was abundant evidence to support the conviction; and that there was no error in the record. The judgment against Byrd is, therefore, affirmed.

III. The Case Against James Boyd. The Trial Court refused to allow the alleged confession of Boyd to be considered in any way because one of the State's witnesses gave testimony which convinced the Trial Court that Boyd's confession was not voluntary. The said witness--a law enforcement officer--testified as to the following remarks he made to Boyd on May 15, 1956 before the boyd of M. R. Hamm had been found:

'Well, we were walking up and down a ditch there, for half a mile, looking for a hammer. And I was questioning him about the disappearance of Mr. Hamm. And I told him that we believed that he and this other boy, Boone, had killed him. And he denied it; and we were walking up and down this ditch, and we talked all the time about it, and I kept telling him over and over--I guess I told him a hundred times in different forms, that they had killed this man, and that they had hidden his body, and that there was a group of white people looking for him, and that they would believe the same things we believed, under the circumstances, and it would be lots better for him to go ahead and tell me about it. I pointed out to him that he would be in considerable danger if this large group of white people were to find this man's body and come to the conclusion that he had committed the crime. And we talked along that line for a long time. And finally, he says, 'I didn't do it, but I was there', or words to that effect.'

Because of the foregoing testimony the Trial Court correctly ruled that Boyd's confession was involuntary, and the Court told the jury:

'Now as to Boyd, you are told that there is no confession as to Boyd and you are again admonished not to consider any testimony as respects any such confession allegedly made by him, the defendant Boyd.'

The Trial Court was correct in refusing to allow the alleged confession made by Boyd to be considered by the jury. As we pointed out in discussing the Byrd confession, the burden is on the State to prove that the confession was voluntary; and in determining whether a confession is voluntary the Court should look at the whole situation and surroundings of the accused. When the law enforcement officer told this Negro prisoner that there was a large group of white people looking for him and if they found Mr. Hamm's body they would come to the conclusion that he (Boyd) had committed the crime, the voluntariness of the confession was certainly destroyed until it was shown that the Negro had reached a place secure against any such 'large group of white people' looking for him.

But on the night of May 15th the four prisoners, Boyd, Byrd, Moore, and Boone, were transported to the State Penitentiary south of Pine Bluff for safekeeping; and on May 18th, three days later, the Prosecuting Attorney, along with two law enforcement officers, went to the penitentiary to see the four prisoners. The statements of Moore and Boone were read to Boyd in the presence of Moore and Boone, after Boyd had been advised that if there was anything in the said statements that was erroneous, he should so state. This was three days after Mr. Hamm's body had been found; Boyd was safe in the penitentiary and secure from any possible 'large group of white people'; so any fear induced by the officer's statement of May 15th had been dissipated. In their said statements read to Boyd, Moore and Boone each stated that Boyd was in concert with them ² and assisted in the assault and robbery of Mr. Hamm.

In admitting this testimony of Boyd's failure to make any reaction to the statements of Moore and Boone, the Trial Court immediately cautioned the jury:

'Gentlemen of the jury, it is my duty--the Court's duty--to remind you at this time that this purports to be a statement of Rogers Boone, who is not a defendant in this trial. It is not to be considered in any manner as a statement made by either or both of these defendants, and the same rule of law applies as to the restricted area in which you may consider their reaction, if they had an opportunity to freely react to this statement, and at the close of all the case the Court will again, as a matter of precaution, admonish you relative to the law as regards this statement and the Moore statement.'

Boyd made no denial of any of the statements which his co-conspirators had made in his presence, and his failure to make such denial was admissible in evidence against him. In Moore v. State, Ark., 315 S.W.2d 907, 913, we quoted from Martin v. State, 177 Ark. 379, 6 S.W.2d 293:

"* * * it is a general rule that the statements of one accomplice made in the...