Charles v. State

• Decision Date: 23 October 1939
• Docket Number: 4131
• Citation: 133 S.W.2d 26,198 Ark. 1154
• Parties: CHARLES v. STATE
• Court: Arkansas Supreme Court

133 S.W.2d 26

198 Ark. 1154

CHARLES v. STATE

4131

Supreme Court of Arkansas

October 23, 1939

Appeal from Pulaski Circuit Court, First Division; Gus Fulk, Judge affirmed.

Judgment affirmed.

Jno. A Hibbler, for appellant.

Jack Holt, Attorney General, and Jno. P. Streepey, Assistant Attorney General, for appellee.

OPINION

MEHAFFY, J.

The appellant was tried and convicted of murder in the first degree. Motion for new trial was filed and overruled, and the case is here on appeal.

Appellant's first contention is that the verdict is contrary to the law and evidence, and states: "The test of the correctness of the verdict would be whether or not there was sufficient evidence to sustain a conviction if the confession was eliminated."

Section 4018 of Pope's Digest reads as follows: "A confession of a defendant, unless made in open court, will not warrant a conviction unless accompanied with other proof that such offense was committed."

It will, therefore, be seen that the test is not whether there was sufficient evidence to sustain a conviction, but whether there was evidence that such an offense was committed. In other words, before the confession can be introduced against the defendant, there must be evidence that the crime charged was committed by someone. The testimony in this case is undisputed that Fred Angeles was murdered by someone, and appellant says in his brief:

"It is true that the deceased, Fred Angeles, was killed by being beaten on the head with a blunt instrument which the state proved to have been a tire hammer."

Dr. Roberts testified that he found the body of Fred Angeles with numerous lacerations or cuts over his head and forehead, and blood was coming from his ears and nose. He was dead when witness arrived, and the body was still warm. There were gaping wounds in the hairy part of his head and forehead, measuring an inch and a half or two inches long. He was able to remove some of the skull. There were eleven distinct wounds on his head. It looked like the blows inflicted were of crushing force. He examined the instrument that the city detectives had, a small hammer. One edge was wedge shaped and the other was round. The wedge of the hammer fit into the cuts or lacerations. The hammer had red stains on it. He testified that the cause of the man's death was an acute brain injury and fractured skull.

Pheophilis Ferner and Charles Chambers testified that when on their way home they heard groaning in the ditch, they struck a match, saw the body, and called an ambulance. Ferner stayed with the body until Chambers got Mrs. James to call for an ambulance. The man was still breathing when the two young men arrived, but he quit moving when the ambulance came. They first called colored people who operated an ambulance, because they thought the man in the ditch was a colored person.

There was other evidence showing that Angeles was murdered. Witnesses found the hammer at appellant's employer's place of business. It was shown that it was the hammer used by appellant and others in their work. The hammer had bloodstains on it. Blood stains were also found on appellant's clothing.

The circuit judge, in the absence of the jury, heard the evidence as to appellant's confession. The appellant claimed that he was mistreated and threatened and that that is the reason he made the confession, and denied that he killed Mr. Angeles, or anybody else. But several witnesses testified that there were no promises, no threats, and that the confession was voluntarily made. He was finally taken to the prosecuting attorney's office and the deputy prosecuting attorney who was trying the case directed the officers to leave the room, and then when no one was present except the appellant and the deputy, appellant repeated his confession and said it was true. He does not claim that any threats were made in the deputy prosecuting attorney's office, or that anything was said by the deputy that induced him to make the statement.

It is admitted that appellant made the confession, or repeated it to the deputy prosecuting attorney, and that nothing was said or done to intimidate him--no threats made, and no promises made. The evidence is overwhelming that the confession was voluntarily made.

We recently said: "In many instances, where the accused is confronted with a confession which he cannot deny having made, he insists that it was not freely and voluntarily made. But that insistence does not render the confession inadmissible, where there is testimony to the effect that it was in fact, freely and voluntarily made. In such cases the practice approved by us, which was followed in the instant case, is for the court to hear the testimony in the absence of the jury as to the circumstances under which the confession was given, and, if there is a substantial question as to whether it was freely and voluntarily made, to submit that question of fact to the jury, after admonishing the jury to disregard the confession unless it was found to have been voluntarily made." Brown v. State, ante 198 Ark. 920, 132 S.W.2d 15; Morrison v. State, 191 Ark. 720, 87 S.W.2d 50; Davis v. State, 182 Ark. 123, 30 S.W.2d 830.

In the instant case the above rule was strictly followed by the circuit judge. After hearing all the evidence in the absence of the jury, the court made the following ruling:

"All of this testimony is admissible, the court will hold that all of this is admissible, the court holds the questions and the incriminating admissions are voluntary. He will have the opportunity to testify before the jury whether or not they were voluntary, whether there were acts of physical violence used or threats or promises made to him, the jury will have the right to pass on that, the court is only passing on the admissibility of them."

Trial was then resumed in the presence of the jury, and the evidence before the jury showed that the confession was voluntarily made; that there were no promises, no threats and no inducement to get appellant to make any...