Cooper v. State

• Decision Date: 03 October 1949
• Docket Number: No. 4571.,4571.
• Citation: 223 S.W.2d 507
• Parties: COOPER v. STATE.
• Court: Arkansas Supreme Court

223 S.W.2d 507

COOPER v. STATE.

No. 4571.

Supreme Court of Arkansas.

October 3, 1949.

Rehearing Denied October 31, 1949.

Vol T. Lindsey, Bentonville, for appellant.

Ike Murry, Atty. Gen., Arnold Adams, Asst. Atty. Gen., for appellee.

GRIFFIN SMITH, Chief Justice.

Lois Cooper was found dead near Gravette the evening of December 23, 1948. Proximity of an old truck near the city garbage dump where the body was found, the peculiar nature of injuries sustained, contradictory statements by Mrs. Cooper's husband, and unexplained conduct, led to Cooper's arrest on information filed January 7th. He was convicted of first degree murder and given a life sentence.

The motion for a new trial lists twenty-three alleged errors, some of which are not argued.

Matters emphasized by the appellant, upon which he relies for reversal, are listed in the first marginal note.¹

First—Sufficiency of the Evidence.—The first public knowledge that Cooper's truck had been wrecked came when three young men driving south from Sulphur Springs to Gravette heard calls for help a short distance from the city garbage dump. They stopped and saw Cooper prone on the roadside as though in distress. He explained that the pick-up truck he and Mrs. Cooper were using in carting trash from their home had been wrecked; that it had "gone over the bank", or something to that effect, and that Mrs. Cooper was at the bottom of the ravine dead or in a dying condition. When help arrived it was found that the truck was "nosed over" the embankment and had come to a stop at a sharp incline with the front end embedded in debris and the rear near enough for one standing on the roadside to reach the bumper with his foot. Waste matter in and against which the car was lodged consisted of discarded tin cans, charred remnants, broken glass, wire, etc. The car differential was so close to the ground that a person could not conveniently see under, while at the front there was no space between car and debris. Mrs. Cooper's body was 130 feet down the ravine. One witness testified that she was lying on her right side, with the left foot crossed over the right one, resting on an old automobile tire. This witness observed a cut or wound over the right eye. It had turned black, and was not bleeding.

Appellant was taken to Dr. Wilford Wilson's office. While being examined for injuries, he stated that he and Mrs. Cooper had gone to the dump to dispose of trash. With conpletion of this task appellant got back into the truck as Mrs. Cooper started the engine. The motor was "racing" violently. Appellant said he at first thought Mrs. Cooper was merely joking and that the accelerator had been purposely depressed, but when she exclaimed, "George, do something", he realized that his wife was alarmed. Just then the machine lunged forward. This witness was not certain that Cooper said he leaned forward for the purpose of turning off the ignition. But, in any event, the statement was made that before anything could be done the car was in motion, and "all of a sudden went over". Cooper claimed to have been hurled through the windshield, while his wife was thrown to the left through an open door. Blood was found on the right-hand "jump seat", and there was blood on the "sill" where the right-hand door "fastens up against it". A subsequent examination of the opening through which Mrs. Cooper was said to have been hurled disclosed that the door functioned imperfectly and would only open half way. A six-inch maple limb, perhaps ten feet long, was tight against the left fender, one end extending into the rubbish pile. The witness who drove Cooper's car to Bentonville December 24th testified that the foot-feed functioned normally for an old car and that neither the throttle nor steering mechanism was out of order, and headlights were in good condition.

A heavy steel Firestone Company drum used for shipping anti-freeze compound was in the rear of the truck. Its capacity is 54 gallons. A nine-inch hard rubber detachable extension of the old-fashion gear-shift lever, with a heavy two-inch knob, was described by one state witness as "a convertible gearshift knob and blackjack".

Deputy Sheriff John Black² testified that tire-marks left by Cooper's truck disclosed movements on the evening of December 23d immediately before the car went over the embankment. According to this witness it was certain that from a point touching some cut-off branches of a plum thicket, the machine proceeded in a south-easterly direction, veering slightly to the left, along an old graveled highway. Skidmarks indicated that the truck had been suddenly started, that it proceeded a distance of 35 or 40 feet, then turned sharply to the left and dropped into the dump, coming to rest when the front end and wheels were impeded by the soft material beneath. Disturbed condition of the gravel for a distance of eight or ten feet convinced the witness that the clutch was suddenly engaged after the engine had been "raced"—supplying, inferentially, a maximum of initial power.

The car windshield had been partially broken by impact from within. Perhaps half of the shatter-proof glass was out and a few pieces were missing when Black gave his testimony. Physical indications were that the break was caused from a blow struck approximately two inches from the bottom of the glass, on the right side. The opening was not, in Black's opinion, sufficient for a man's head to go through.

Contradictory Statements.—W. F. Burns, County Coroner, testified that on the evening of December 24th he and Mrs. Burns went to the Veterans Hospital to procure Cooper's permission for having an autopsy. While discussing matters connected with the death, Cooper said that when they drove to the dump he backed the truck to a point selected for unloading. He then got out of the car and Mrs. Cooper backed it about three feet farther. After disposing of the load Cooper took an old piece of canvas and cleaned the truck bed, then told his wife to "pull up". At the same time he put an oil drum in the car, then told Lois to pull up again. The accelerator stuck, causing the machine "to race around rather fast." Appellant says he ran and caught the car as it reached the dump, "jumping into it just as it went over". According to this explanation, the truck went down the hill about 75 feet and stopped suddenly, throwing Cooper through the windshield up to his shoulders, while Lois fell on the driver's side and went under a front wheel. It ran over her neck, and she "gurgled" and didn't speak again.

These representations by Cooper were testified to by Burns and his wife. The former said that he asked Cooper if Lois was insured, and received a negative reply. Burns says he then told Cooper that Clifford Fry, an agent at Gravette, had stated there was a $5,000 policy on Mrs. Cooper's life, with double indemnity in the event of accident. Cooper's reply was: "Yes, I remember that now, but it is a savings account policy". Cooper then said to Burns, "If you will sign the death certificate and get me out of this mess, it will be worth half of the five thousand to you". The witness said his understanding of the proposal was that the offer related to half of the double indemnity, or $5,000. Mrs. Burns testified that she talked with Cooper while her husband was out of the room typing a form authorizing the autopsy, and that Cooper intimated to her that he would pay $10,000 for the assistance inferentially suggested.

Motive Alleged by State.—Other than a small contract covering hospitalization, Mrs. Cooper was insured for $8,500 under three policies, each paying double the principal sum if death should be accidental. All were procured in 1948, the oldest July 20, the next October 21, and the last December 6. If realized upon, appellant as beneficiary would receive $17,000.

There was evidence from which the jury could have found that the Coopers were not domestically harmonious, although some witnesses thought they were. At one time the couple had accumulated approximately $6,000, most of it put aside by Mrs. Cooper while her husband was with the armed forces. This, however, had been used, or virtually spent. Cooper operated a radio and electrical repair shop, maintained in a part of the residence he and his wife occupied. They had been married 19 years, and were childless.

Supporting the State's contention that Cooper had grown tired of his wife and had formed other attachments, his connection with a young girl of good family and high scholastic attainment was shown. The girl was eighteen years of age when she testified, but was about seventeen when she met appellant, who soon made "improper advances" which were first repulsed; but, according to the testimony of this witness, Cooper told her "we might later be married". She was wholly inexperienced in sexual matters, and was so impressed by the attentions paid her, and by Cooper's personality and seeming devotion, that aloofness gave way to mutual desires, and for several months prior to the tragedy there were no inhibitions.

Their first experience consummating intercourse occurred in the basement of Cooper's home under his radio shop. Mrs. Cooper had gone to Joplin. The girl was persuaded by her lover to believe that Mrs. Cooper—represented by her husband to be without sexual reactions—did not object to the character of conduct she and George were engaging in, although there is no suggestion that Mrs. Cooper had specific information in respect of person or persons her husband was turning to. The young witness related a conversation with Cooper in which he expressed a belief that Lois would not live long—possibly not more than two years, that she "might have a stroke", and in that case, said the girl, "We were to be married". Cooper also said that a child conceived as a consequence of his marriage to Lois "had been taken care of" because they were too young to rear it. The witness understood from what Cooper told her that...