Davis v. State
| Decision Date | 14 July 1930 |
| Docket Number | 101 |
| Citation | 30 S.W.2d 830,182 Ark. 123 |
| Parties | DAVIS v. STATE |
| Court | Arkansas Supreme Court |
Appeal from Pulaski Circuit Court, First Division; Abner McGehee Judge; affirmed.
Judgment affirmed.
Henry Donham, for appellant; Davis and Grover T. Owens, S. Lasker Ehrman and John M. Lofton, for appellant Long.
Hal L Norwood, Attorney General, Robert F. Smith and Pat Mehaffy Assistants, for appellee.
Willie Joe Davis, Roosevelt Davis and Eddie Long were jointly indicted for the murder of J. W. Weed, it being alleged that the crime was committed "after deliberation and premeditation, and with the felonious intent then and there to rob J. W. Weed." * * * There was a severance, and Willie Joe Davis and Eddie Long were separately tried and each convicted of murder in the first degree, and they have appealed from judgments sentencing them to death. Separate trials were had, and separate appeals have been prosecuted, but the questions presented are sufficiently similar to be disposed of in a single opinion. It does not appear whether Roosevelt Davis has been tried.
A demurrer was interposed to the indictment at each trial, which was overruled in each instance. The indictment is almost an exact copy of the one held good in the case of Washington v. State, 181 Ark. 1011, 28 S.W.2d 1055, except the difference in the names of the parties, and as we have not changed our view as to the sufficiency of that indictment, it will suffice to say that the indictment was not demurrable.
The sufficiency of the testimony to sustain the convictions is not questioned, and reversals are asked upon other grounds. We shall, therefore, discuss only so much of the testimony as will be required to dispose of the assignments of error upon which reversals are asked.
It was the theory of the prosecution that the parties named in the indictment went to the place of business of J. W. Weed, a merchant in North Little Rock, to rob him, and, while engaged in this attempt, killed him. As tending to identify appellants as the persons who killed Weed, and as showing the purpose for which they went to his place of business, Joe Lee testified that between seven and eight o'clock of the night Mr. Weed was killed and within a few blocks of Mr. Weed's place of business, three men held witness up and robbed him. They even took his shoes. Lee recognized appellants as two of the robbers, and so testified in each trial. In admitting this testimony over the objections of appellants, the court admonished the jury that the testimony could be considered for the purpose only of identification, and upon the question of their intent in entering Weed's place of business. The indictment alleged that Weed was killed in an attempt to rob him, and it was this unlawful intent which rendered it unnecessary for the State to prove that deliberation and premeditation which would otherwise be required to establish the crime of murder in the first degree. It was pointed out in the Washington case, supra, and in the cases there cited, that our statute has modified the common law, so that murder committed in the perpetration, or the attempt to perpetrate, certain named felonies, including robbery, is deemed murder in the first degree, and a showing of deliberation and premeditation is not required.
It was essential for the State to show that appellants were in Weed's place of business for the purpose of committing the crime of robbery. Weed was killed about eight o'clock, and Lee's testimony is to the effect that just a short time before this and at a place near the scene of the killing appellants robbed him, and were armed when they did so. The testimony was, therefore, competent to show the business in which appellants were engaged that night, and the probable purpose for which they went to Weed's place of business soon thereafter.
It is well settled that if testimony tends to prove the commission of the crime charged in the indictment, it is not to be excluded because it also tends to show the commission of another or different crime. Cain v. State, 149 Ark. 616, 233 S.W. 779; Hall v. State, 161 Ark. 453, 257 S.W. 61; Stone v. State, 162 Ark. 154, 258 S.W. 116; Warford v. State, 175 Ark. 878, 1 S.W.2d 23.
In the trial of appellant Davis it was not contended that he was not present at the time of the killing of Mr. Weed, and the testimony fully sustains that finding, and the testimony of Lee tends to show that, if Davis was present, Long was present also, as they were together a short time prior to the killing. We therefore conclude that no error was committed in admitting the testimony of Lee. The relevancy of Lee's testimony will be made more apparent by other facts which will be stated.
At the trial of appellant Davis testimony was offered to the effect that, because of a syphilitic infection from which he had long suffered, his mentality had been impaired to the extent that he was not responsible for his conduct, and certain physicians who qualified as experts gave testimony tending to support that contention. Opposing this contention the State offered the testimony of Morris Logan, Lon Barnard, J. R. Farris, J. H. Miller, and S. A. Hamilton, who were non-experts, to the effect that in their opinion Davis was sane, and they were permitted to express that opinion over the objection of appellant Davis.
Medical experts are not the only persons who may express their opinion upon the sanity of a person whose mental condition is the subject of judicial inquiry. But, for the non-expert to be allowed to do so, he must state the facts upon which his opinion is based, and must, as a condition precedent, show that he has known the alleged insane person for such a length of time, and has had such opportunities to observe him, as to furnish a reasonable basis for the opinion expressed. It is always a preliminary question of fact for the trial court to say whether the witness has qualified himself in this respect, and the trial court should exclude the testimony of the non-expert witness who...
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