Dowell v. State, Cr. 3952.

• Decision Date: 23 September 1935
• Docket Number: Cr. 3952.
• Citation: 86 S.W.2d 23
• Parties: DOWELL v. STATE.
• Court: Arkansas Supreme Court

Page 23

86 S.W.2d 23

DOWELL v. STATE.

Cr. 3952.

Supreme Court of Arkansas.

September 23, 1935.

Rehearing Denied October 21, 1935.

Appeal from Circuit Court, Hot Spring County; H. B. Means, Judge.

Loy Dowell was convicted of first-degree murder, and he appeals.

Affirmed.

Glover & Glover, of Malvern, for appellant.

Carl E. Bailey, Atty. Gen., and Guy E. Williams, Asst. Atty. Gen., for the State.

JOHNSON, Chief Justice.

Appellant was separately indicted by the grand jury of Hot Spring county for the crime of murder in the first degree for the alleged killing of Vernon, Macy, and James Ray, Jr. By consent of all parties the indictments were consolidated for trial purposes, and subsequently he was convicted as charged in the indictments and his punishment assessed by the jury at life imprisonment in the state penitentiary. In obedience to the judgment of conviction, appellant was lodged in the state penitentiary. Subsequently an appeal was perfected in this court, and we are now asked to remand him to the county jail of Hot Spring county pending his appeal, which presents the first question for consideration.

Brown v. State, 154 Ark. 604, 243 S. W. 867, is cited and relied upon by appellant as supporting his contention in this behalf, and so it does, but must be overruled. Brown v. State, supra, either overlooks or ignores section 3418, Crawford & Moses' Dig., which provides in effect that when a judgment of conviction has been executed at the time or before the certificate of appeal is delivered to the sheriff of the county, such defendant should remain in the penitentiary pending his appeal. Appellant does not contend that a certificate of appeal was served on the sheriff of Hot Spring county prior to his incarceration in the state penitentiary; therefore under the plain mandate of the statute he must remain in the penitentiary pending his appeal unless a bond be effected as required by law. Such is the status of appellant and he must abide the statutory mandate. This court so expressly held in Ex parte Lawrence, 71 Ark. 54, 70 S. W. 470, and we now revert to its doctrine.

Appellant's principal contention for reversal on appeal is that the testimony adduced by the state is insufficient to support the conviction, and this makes it necessary to review the testimony at some length. On January 25, 1935, Vernon Ray, his wife Macy Ray, and James Ray, Jr., his infant son, left their home in Hot Spring county to visit Rawford Ray, a brother of Vernon Ray, who resided at Dalark in Dallas county. On January 27, 1935, at about 3 o'clock p. m., Vernon Ray, his wife, and child departed from the home of Rawford Ray ostensibly to return to their home in Hot Spring county, and this was the last time either of them was seen alive. On February 19, 1935, the dead bodies of Vernon Ray and his wife and child were found in L'eau Fraize creek in Hot Spring county some two and one-half miles from Rawford Ray's home and at a point immediately adjacent to the nearest and most practical route from Rawford Ray's home in Dallas county to the home of the deceased in Hot Spring county. All the bodies were in a high state of decomposition. Vernon Ray appeared to have been shot in the back of the head with a load of No. 4 or 5 shot. James Ray, Jr., appeared to have been shot in the forehead with similar pellets. The head of the wife, Macy Ray, appeared to have been crushed by some blunt instrument. Appellant resided about three-quarters of a mile from the point where the bodies were found. A state witness, a Mr. Nix, testified that about 11 or 12 o'clock a. m. Sunday, January 27, 1935, he left his home which is situated in that vicinity to hunt hogs which were running at large in the bottoms of L'eau Fraize creek, and that while returning home about 3 or 4 o'clock of that day he heard a dog barking, a gun fired several times, and human voices in the vicinity of the place where these dead bodies were subsequently discovered; that at the time of the shooting, witness was something like a quarter of a mile distant down the creek bottom; that he walked on up the creek to the point where the noise came from, where he saw some person peering into the water of the creek, dressed with a corduroy cap upon his head, a brown hunting coat around his body and rubber boots, and had a gun in his hands; that witness was some 35 steps distant from this party at the time and was of the opinion it was "Ole Brother Dowell" (the father of the appellant); that Loy Dowell's two dogs were with this party at the time. Subsequently to the discovery of the dead bodies, a yellow empty 16-gauge shotgun shell was found near the scene of the crime; some trees were found to have been pierced with shot; between the point where the empty shell was discovered and the trees which were pierced with shot, the wadding from the shotgun shell was found which was red in color. This wadding showed that the shell contained No. 4 shot. Appellant owned the only 16-gauge shotgun discoverable by the sheriff in that vicinity and was likewise in possession of a corduroy cap, a brown hunting coat, and rubber boots similar to those worn by the party seen by the witness Nix at the supposed scene of the crime. At the time of appellant's arrest his hunting coat contained yellow 16-gauge shotgun shells similar in color and identical in load and wadding with that found at the supposed scene of the crime.

The law is well settled in this state that a jury's verdict which rests solely upon speculation and conjecture will not be permitted to stand. Jones v. State, 85 Ark. 360, 108 S. W. 223; Martin v. State, 151 Ark. 365, 236 S. W. 274; Adams v. State, 173 Ark. 713, 293 S. W. 19; Hogan v. State, 170 Ark. 1143, 282 S. W. 984. On the other hand, this court, in testing the sufficiency of the testimony to support a jury's verdict, views such testimony in the light most favorable to the state. Morgan v. State, 189 Ark. 981, 76 S.W.(2d) 79; Rhea v. State, 104 Ark. 162, 147 S. W. 463. Moreover, circumstantial testimony is legal and proper and when properly connected furnishes a substantial basis and support for a jury's verdict. State v. Jennings, 10 Ark. 428; Scott v. State, 180 Ark. 408, 21 S.W.(2d) 186; Taylor v. State, 178 Ark. 1200, 10 S.W.(2d) 853.

The testimony adduced by the state against appellant, although circumstantial in character and not overconvincing to all members of this court, is substantial and entirely sufficient to support the verdict. The mere...