Ezell v. State

• Decision Date: 10 April 1950
• Docket Number: No. 4597,4597
• Citation: 217 Ark. 94,229 S.W.2d 32
• Parties: EZELL v. STATE.
• Court: Arkansas Supreme Court

Page 32

229 S.W.2d 32

217 Ark. 94

EZELL v. STATE.

No. 4597.

Supreme Court of Arkansas.

April 10, 1950.

Rehearing Denied May 8, 1950.

Ralph E. Wilson and Mitchell D. Moore, Osceola, for appellant.

Ike Murry, Atty. Gen., Robert Downie, Asst. Atty. Gen., for appellee.

MILLWEE, Justice.

Appellant, Matthew Ezell, was convicted by a jury of murder in the first degree and his punishment fixed at death. He has appealed from the judgment rendered in accordance with the jury's verdict.

The testimony tends to establish the following facts: L. J. Wood lives in the Jacksonville Community in Mississippi County. About 7:30 o'clock Sunday morning, April 24, 1949, Jimmie Wood, son of L. J. Wood, went to his father's pasture to round up some horses. As he crossed a levee which runs through the pasture, he heard some dogs barking. Upon investigation he discovered the body of a young Negro girl lying near the bottom of the river side of the levee. He returned home and called Cliff Cannon, deputy sheriff, who examined the body and summoned the coroner and sheriff.

The deceased child's mother, China Flowers, and grandmother, Alice Gray, appeared at the scene and identified the eight-year-old child. A coroner's jury was empannelled and an inquest held that afternoon and completed the next day.

Appellant was at that time living in a three-room house on the Bryant farm with Alice Gray, China Flowers and her five minor children and was employed as a farm laborer. The house was located about 900 feet from the place where the child's body was found. About a year before appellant had lived with Alice Gray for about two or three months at Crawfordsville, Arkansas, and appeared at the Flowers home in Jacksonville about four days prior to the child's death.

The child was sleeping with her six-year-old sister when China Flowers retired about 11 o'clock Saturday night. Alice Gray slept in another bed in the same room with two of the children. China Flowers slept with her youngest child in an adjoining room in which appellant also slept on a cot. Alice Gray returned from a visit at the home of a sick neighbor late Saturday night and retired in the dark, explaining that there was no burner in the oil lamp. Appellant came in sometime later and was asleep on the cot when China Flowers discovered that the child was missing shortly after sunrise Sunday morning.

Appellant was questioned by the deputy sheriff at the house about noon Sunday and taken into custody on suspicion of murder. He was present at the coroner's inquest the next morning and testified in detail how be had taken the sleeping child from her bed, choked her to death and carried her to the place where the body was found. Prior to the inquest appellant had voluntarily made similar statements to the deputy sheriff and coroner. In each of the statements he said that Alice Gray had suggested that he 'get rid' of the child but that she had given no reason therefor; and that she went with him to the levee and directed him where to place the body. He later voluntarily retracted this part of the statement and said he had implicated the child's grandmother because he thought it might make his punishment lighter.

Appellant interposed the defense of insanity. He was committed to the State Hospital for examination and observation on August 26, 1949 and discharged on September 26, 1949. Dr. Oscar Kozberg, assistant superintendent of the hospital, testified in detail as to the physical and mental examination and stated that in his opinion appellant was sane at the time of the examination and at the time the alleged crime was committed. He stated that appellant was normal physically; that the tests for syphilis were negative; that appellant was able to work simple problems in arithmetic; and that he found no evidence of hallucinations or other signs of mental incompetency.

Dr. P. W. Turrentine, a general practitioner, testified on behalf of appellant after talking with him about one and one-half hours two days before the trial. Although he would not say that appellant was insane, nor that he did not know the difference between right and wrong, he disagreed with Dr. Kozberg's conclusion that appellant was without psychosis. It was his opinion, based on the conversation, that appellant had mental aberrations, was highly illogical and unable to place his experiences as to time and place. However, appellant told Dr. Turrentine that he was drinking on the night in question and was taken home by some associates; that after going to bed he got up and took the sleeping child from her bed and carried her to a table where he choked her and attempted to have sexual relations with her and then choked her some more until she died. It was the doctor's impression that appellant's conduct was motivated by an insatiable appetite for alcohol which in turn caused an irresistible sexual urge and compulsion to kill.

The first assignment of error in the motion for a new trial is as follows: 'There was no corroborating evidence by the State of Arkansas to prove that a crime had been committed in this cause, except the testimony and confession of the defendant, Matthew Ezell, which was not made in open court.' Our statute, Ark.Stats.1947, Sec. 43-2115, provides that an extradjudicial confession of the defendant must be corroborated by proof of the corpus delicti. It was suggested by the state in the oral argument that the confession of appellant at the coroner's inquest was a judicial confession, that is, made in open court, and, therefore, sufficient to sustain a conviction without corroboration. We find it unnecessary to determine this question. Although there is authority that may be said to support the state's contention, ¹ we will assume for the purpose of this opinion that the confession at the coroner's inquest was quasi judicial and as falling under the rule applicable to extrajudicial confessions. See Wharton's Criminal Evidence, 11th Ed., Vol. 2, p. 967.

We have held that the extrajudicial confession of the defendant accompanied by proof that the offense was actually committed by some one will warrant his conviction. Melton v. State, 43 Ark. 367. In construing the statute in Burrow v. State, 109 Ark. 365, 159 S.W. 1123, 1124, the court said: 'Under the above statute, where the offense charged is shown to have been committed by other evidence, then the party charged may be convicted upon proof of his confession, although made out of court; and, where the offense is shown to have been committed by other evidence than that of the accused's confession out of court then his confession will be sufficient to warrant his conviction, whether there is any other testimony tending to connect him with the crime or not.'

In Harshaw v. State, 94 Ark. 343, 127 S.W. 745, Judge Wood, speaking for the court, said: 'It is not essential that the corpus delicti be established by evidence entirely independent of the confession before the confession can be admitted and given probative force. The confession may be considered in connection with other evidence tending to establish the guilt of the defendant. But if there is no other evidence of the corpus delicti than the confession of the accused, then he shall not be convicted alone upon his confession. Hubbard v. State, 77 Ark. 126, 91 S.W. 11; Meisenheimer v. State, 73 Ark. 407, 84 S.W. 494.' See also, Russell v. State, 112 Ark. 282, 166 S.W. 540.

In the celebrated case of Edmonds v. State, 34 Ark. 720, this court approved the following statement from Burrill on Circumstantial Evidence: 'A dead body, or its remains, having been discovered and identified as that of the person charged to have been slain and the basis of a corpus delicti being thus fully established, the next step in the process, and the one which serves to complete the proof of that indispensable preliminary fact is, to show that the death has been occasioned by the criminal act or agency of another person. This may always be done by circumstantial evidence, including that of the presumptive kind; and for this purpose a much wider range of inquiry is allowed than in regard to the fundamental fact of death, and all the circumstances of the case, including facts of conduct on the part of the accused, may be taken into consideration.' See also Hall v. State, 209 Ark. 180, 189 S.W.2d 917.

The evidence in the case...