Hall v. State

• Decision Date: 22 October 1945
• Docket Number: 4393
• Citation: 189 S.W.2d 917,209 Ark. 180
• Parties: Hall v. State
• Court: Arkansas Supreme Court

189 S.W.2d 917

209 Ark. 180

Hall v. State

No. 4393

Supreme Court of Arkansas

October 22, 1945

Rehearing Denied November 19, 1945.

Appeal from Pulaski Circuit Court, First Division; Lawrence C Auten, Judge.

Affirmed.

M V. Moody, for appellant.

Guy E. Williams,Attorney General, and Oscar E. Ellis, Assistant Attorney General, for appellee.

OPINION

McHaney, J.

Appellant was, on March 26, 1945, charged by information with the crime of murder in the first degree for the killing, on September 14, 1944, of his wife, Fayrene Clemmons Hall, "by some means, instruments and weapons to the prosecuting attorney unknown."Trial was begun on May 7, 1945, after a plea by appellant of not guilty and also a plea of not guilty by reason of insanity.Prior thereto, on March 29, 1945, on his petition filed on said date, he was committed to the State Hospital for Nervous Diseases for observation and investigation of his mental condition, and to make a written report thereof within 30 days.On May 9, after an exhaustive trial, he was by the jury found guilty of murder in the first degree as charged in the information and he was by the court, on May 14, sentenced to death by electrocution.Thereafter, in apt time, an appeal was prayed, and was granted by the Chief Justice to this court.

For a reversal of the judgment and sentence against him appellant makes four contentions: 1, that the confessions made by him were not admissible against him; 2, that he is insane; 3, that the corpus delicti was not established; and 4, that Dr. Kolb, superintendent of the State Hospital for Nervous Diseases, was permitted to testify, over his objections, to a confession made by him when his sanity was being inquired into.

Before discussing these assignments of error, we think it may be helpful to recite the facts or some of them in the light most favorable to the State, most of which are undisputed.Appellant did not testify in the case, except in chambers and out of the presence and hearing of the jury, and then only in connection with the admissibility of his confession.A number of witnesses, including some physicians, testified in his behalf in relation to his sanity.

Fayrene Clemmons Hall, wife of appellant, disappeared Thursday night, September 14, 1944.She attended a dance at Rainbow Garden on that night with appellant and Mrs. Clyde Green.They all left the dance at midnight and appellant and his wife had a quarrel.She said she was going to leave him.They took Mrs. Green home in a car, and left her there.Fayrene has never been seen or heard from by any witness in the case since that night.Mrs. Green knew the kind of dress Fayrene had on that night -- a red dress with peculiar buttons on it, of a kind she had never seen before, "with little chains with a thing on the end that looks like a nail and that fastens in that manner"(indicating).She identified the remains of a dress found at the scene of the alleged crime by its color and the buttons.A number of other witnesses, including her father and mother and a number of close friends, testified to her disappearance on or about the same time, none of whom have ever seen or heard from her since her disappearance.

Appellant was arrested in Little Rock on March 15, 1945, locked up, and, on the following night, was taken to the state police headquarters, where he was questioned.Without any threats, coercion, abuse on the part of those present, which included city police, state police, newspaper reporters and possibly others, and without any promise of leniency or hope of reward being offered, he confessed to the killing of his wife.Detective Harold Judd of the city police testified as follows: "Q.What did he say, Mr. Judd, with reference to what happened to his wife?A.He started off by telling about being at the Rainbow Garden on a night in September, he didn't know what date it was, to a dance.After he left there, he took a girl home by the name of Katy Bryant.He went out the river road by Pulaski Station down close to the river, and that is where he killed her and left her body.Q.Did he say he killed her there?A.He did.Q.Did he say he left her body there?A.Yes, sir.Q.What did he say with reference to taking you where the body was?A.He said he would take us the next day.He didn't think he could find it that night because he never had been down there before.Q.Did he say how he killed her?A.He said he killed her with his hands.Q.Mr. Judd, later on did he take you where the remains were?A.He did.Q.Did he point out the place where he killed her and left the body?A.Where to stop the car, and he got out and walked down to where he left the body?Q.There's where it was found?A.Yes, sir.Q.These exhibits introduced in evidence, the shoes, hair, jawbone, dress and other bones were found there?A.Yes, sir.Q.Up to the time he told you where he killed her and left her, did you have any idea of where the remains were?A.We didn't until he took us and showed us."

The Katy Bryant referred to by Judd is the maiden name of Mrs. Clyde Green who testified as above noted.

Several other police officers, both city and state, and a reporter for the Gazette, who was present, testified to substantially the same facts with reference to appellant's confession, regarding its free and voluntary nature, the killing of his wife, the place of concealment of the body, his directing them to the scene of the crime next day, and the finding of the remains at or near the place pointed out by him -- a human skull which had previously been found at the scene by Cecil Foster who lives nearby on the farm on which the crime was committed and who brought it to the officers when he saw them there searching for something and who pointed out the hole in the ground where he found it; also a human jawbone, a pair of ladies shoes, wisps of human hair, pieces of a red dress with buttons of the kind described by the witness, Mrs. Clyde Green, and some other human bones.

The jawbone found had a tooth overlapping another and appellant stated to Agnes Watson, a reporter for the Arkansas Democrat, and others, that he knew the jawbone was that of his wife because of the overlapping tooth.Several witnesses, including the father and mother of deceased, identified the jawbone in like manner, also the dress and shoes as being hers and the hair as being the color of hers.

Considering now the assignments of error argued for a reversal, it is first said that the confession was inadmissible under the authority of McNabb v. United States,318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819.That case was distinguished in State v. Browning,206 Ark. 791, 178 S.W.2d 77, and what was there said need not be repeated here.Counsel for appellant conceded in oral argument that, if we adhere to the case of State v. Browning, the confession here was properly admitted in evidence, and we do adhere to and expressly reaffirm the holding there made.

Secondly, it is argued that appellant is insane and that he should have been acquitted by reason of his insanity.There was ample testimony to support the jury's finding that he was and is sane.The court submitted this question to the jury under correct and proper instructions, first that he was presumed to be sane and the burden was upon him to prove by a preponderance of the evidence that, at the moment the act was committed, he was insane as defined in another instruction.This is a correct declaration of the law as we have held in many cases.Kelly v. State,154 Ark. 246, 242 S.W. 572, and cases there cited.In another instruction the court told the jury that the defense of insanity "cannot avail unless it appears from a preponderance of the evidence that at the time of the actthe defendant was under such a defect of reason from disease of the mind: First, as not to know the nature and quality of the acthe was doing; or second, if he knew it, that he was doing wrong; or third, if he knew the nature and quality of the act and knew it was wrong he was under such duress of mental disease as to be incapable of choosing between right and wrong as to the act done and unable, because of the disease to resist the doing of the wrong act, which was the result solely of his mental disease."This instruction is a copy of one approved by this court in Bell v. State,120 Ark. 530, 180 S.W. 186, and found on p. 553, where it was said by Judge Wood for the court: "These tests are in accord with the great weight of modern authority."

Dr Kolb testified positively that he was sane, knew right...