Dorsey v. State

• Decision Date: 04 June 1951
• Docket Number: No. 4656,4656
• Citation: 240 S.W.2d 30,219 Ark. 101
• Parties: DORSEY v. STATE.
• Court: Arkansas Supreme Court

Page 30

240 S.W.2d 30

219 Ark. 101

DORSEY v. STATE.

No. 4656.

Supreme Court of Arkansas.

June 4, 1951.

Rehearing Denied July 2, 1951.

Coates & Lear, Helena, for appellant.

Ike Murry, Atty. Gen., Jeff Duty, Asst. Atty. Gen., for appellee.

ROBINSON, Justice.

On the 2nd day of August, 1950, the appellant Peter Dorsey and one, Aubrey Smith, stole a cow and calf in St. Francis County, and brought the stolen animals to the stockyards in North Little Rock in an attempt to sell them, arriving there about 7 a. m., on August 3rd. While at the stockyards Dorsey and Smith aroused suspicion and were arrested by Pulaski County officers, who notified St. Francis County officers that the men were being held. Between 4 and 5 p. m., on August 3rd, Otis Tatum and Ray Campbell, Deputy Sheriffs of St. Francis County, arrived in Little Rock to return the prisoners, Dorsey and Smith, to St. Francis County.

After Tatum and Campbell obtained custody of Dorsey and Smith, they started their return journey and stopped at a roadside restaurant, at which time the prisoners were left alone in the automobile for about 30 minutes. The officers then returned to the car, Tatum taking the driver's seat and Campbell occupying the front seat to Tatum's right. Dorsey and Smith, the prisoners, occupied the rear seat, Dorsey sitting to the right of Smith. Dorsey's left wrist was handcuffed to Smith's right wrist. The officers, Tatum and Campbell, each had a pistol in a scabbard on his right hip. When they reached a point about a mile east of Wheatley, in St. Francis County, the two prisoners simultaneously grabbed for the officers' pistols. Officer Campbell managed to get hold of Dorsey's wrist, thereby preventing Dorsey from immediately obtaining Campbell's gun. Smith obtained Tatum's pistol without difficulty and shot Tatum in the shoulder and in the face. The second shot that hit Tatum was the one that struck him in the face and he was thereby rendered unconscious. Campbell was shot twice, one in the head and once in the back, and killed instantly. Tatum recovered from his wounds with the exception of being partially paralyzed. After the officers were shot the two prisoners fled. They managed to remove the handcuffs but were captured the next day.

The Prosecuting Attorney, in separate Informations, charged Peter Dorsey and Aubrey Smith with murder in the 1st degree. Dorsey was charged under the name of 'Dawson', but all the proof shows he is the person intended to be charged. Ark.Stats. § 43-1013; Daniels v. State, 186 Ark. 255, 53 S.W.2d 231; Bridger v. State, 122 Ark. 391, 395, 183 S.W. 962.

Both defendants filed a petition for a change of venue which was granted, the cases being transferred to Phillips County for trial. Smith was tried first, convicted and sentenced to death. Smith v. State, Ark., 238 S.W.2d 649. Then Dorsey was tried, convicted and sentenced to death, from which conviction and sentence comes this appeal.

The Information charging the defendant with murder was filed by the Prosecutiang Attorney in Circuit Court on the 7th day of August, and at that time the court made an order that the defendant be given a mental examination by the doctors at the State Hospital in Little Rock. The defendant was, therefore, transferred to the Pulaski County jail in Little Rock. On the following day, the 8th of August, the defendant made a statement to Ben Kent and W. T. Bolling, members of the Arkansas State Police Department. This statement was admitted in evidence over the objection of the defendant, it being the contention of appellant Dorsey that the statement was not admissible because it was obtained by the officers while the defendant was in custody without a warrant and prior to being taken before a magistrate. Also, in appellant's brief it is argued that the statement was given as the result of a horrible and unmerciful beating administered to defendant, but there is no evidence in the record, including the testimony of the defendant, to support this argument. The defendant testified that he was mistreated at the time he was arrested for stealing the cattle, but does not claim that he made the statement in regard to the killing of Officer Campbell due to any abuse suffered by him when under arrest in connection with the larceny of the cow and calf. The only thing said by the defendant in his testimony given at the trial from which it might be inferred that he was threatened at the time he gave his statement in regard to the homicide was that, after he was removed from the Pulaski County jail to the State Police headquarters where his statement was given, one of the officers pulled off his coat and said he wanted the defendant to tell the truth, the implication being that the removal of his coat by the officer constituted a threat. But, it must be remembered that this was on August 8th in Little Rock, Arkansas. It would only be natural, under summer weather conditions, for the officer to remove his coat at the first opportunity. It is not claimed that the officers taking the statement did or said anything else whatever that could be construed as a threat of physical abuse or psychological coercion.

The principal contention on the part of appellant with reference to the statement is that it was obtained prior to his being taken before a magistrate. In this connection the appellant mainly relies on decisions of the Federal Courts. So far as the law of this State is concerned, the case of State v. Browning, 206 Ark. 791, 178 S.W.2d 77, held adversely to appellant's contention. The Browning case was followed in Palmer v. State, 213 Ark. 956, 214 S.W.2d 372, in which certiorari was denied by the United States Supreme Court, 336 U.S. 921, 69 S.Ct. 639, 93 L.Ed. 1083.

Aside from the issue of whether a confession is freely and voluntarily made, which is passed upon by the jury and trial court, but subject to review by the appellate courts, Ashcraft v. State of Tennessee, 322 U.S. 143, 64 S.Ct. 921, 88 L.Ed. 1192, the Federal Courts will take into consideration whether there has been a violation of the Act of Congress providing: 'It shall be the duty of the marshal, his deputy, or other officer, who may arrest a person charged with any crime or offense, to take the defendant before the nearest United States commissioner or the nearest judicial officer having jurisdiction under existing laws for a hearing, commitment, or taking bail'. 18 U.S.C. § 595 ¹; also, 5 U.S.C. § 300a, ² which requires that the person arrested shall be immediately taken before a committing magistrate. All courts will take into consideration whether there has been a violation of the 14th Amendment to the Constitution of the United States or the guarantees of the 5th Amendment that no person shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property without due process of law.

McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819, and Upshaw v. United States, 335 U.S. 410, 69 S.Ct. 170, 93 L.Ed. 100, turned on the question of whether the defendant's rights had been protected in accordance with the Federal Statutes and Rules of Criminal Procedure in the Federal Courts, 18 U.S.C.A., and not on the constitutional question. The case of Watts v. State of Indiana, 338 U.S. 49, 69 S.Ct. 1347, 93 L.Ed. 1801, was decided on the constitutional question. There it was held that the trial court erred in admitting a confession obtained in a manner which bears no resemblance to the facts in the case at bar.

In the case of United States v. Mitchell, 322 U.S. 65, 68, 64 S.Ct. 896, 897, 88 L.Ed. 1140, the court said: 'We are dealing with the admissibility of evidence in criminal trials in the federal courts. Review by this Court of state convictions presents a very different situation, confined as it is within very narrow limits. Our sole authority is to ascertain whether that which a state court permitted violated the basic safeguards of the Fourteenth Amendment. Therefore, in cases coming from the state courts in matters of this sort, we are concerned solely with determining whether a confession is the result of torture, physical or psychological, and not the offspring of reasoned choice.'

In the case at bar it is not claimed by the defendant that he confessed to anything against his interest because of torture, physical or psychological. In fact, there is very little difference between the statement introduced in evidence, as having been given to the officers, and the oral testimony of the defendant given at the trial. He claims that some things he told the officers were not put into the statement, and denies that he told the officers there was any plan between him and Smith to overpower the officers. He does not testify that he was forced to say that there was such a plan. He merely denies making the statement. The State's case did not hinge on any statement obtained from the defendant, and never at any time, was the defendant held for the purpose of wringing a confession from him. When the defendant was arrested subsequent to the killing, he had the murdered officer Campbell's pistol in his possession. It was known at the time that he participated in the killing and three days after he was captured, and before he made any statement, he was formally charged with murder.

In United States v. Mitchell, supra, the court said the detention for the purpose of illegally extracting evidence from an accused, and the successful extraction of such inculpatory statements by continuous questioning for long hours under psychological pressure were the decisive features in the McNabb case, which led the court to rule that a conviction on such evidence could not stand. Here, the defendant does not say that any inculpatory statements, differing from his testimony given at the trial, were obtained from him by any means. He simply denies that he made any such statements.

Defendant requested the following...