Higdon v. State
| Decision Date | 04 October 1948 |
| Docket Number | 4517 |
| Parties | Higdon v. State |
| Court | Arkansas Supreme Court |
Appeal from St. Francis Circuit Court; D. S. Plummer, Judge.
Affirmed.
O H. Hargraves, for appellant.
Guy E. Williams, Attorney General, and Oscar E Ellis, Assistant Attorney General, for appellee.
Appellant was put to trial under an information charging him with the crime of murder in the first degree, alleged to have been committed by shooting and killing one Evaristo Duran. A verdict was returned by the jury finding him guilty of murder in the second degree and assessing his punishment at seven years in the State Penitentiary, and from the judgment pronounced on that verdict comes this appeal.
The deceased, Duran, was a man of Mexican origin and a tenant on the farm of the appellant located near Heath. On the night of the fatal shooting, the appellant and the deceased left Heath together in a "jeep" driven by the appellant, ostensibly for the purpose of returning to the Higdon farm. According to the testimony, there is a bridge approximately ninety feet long over a drainage ditch between Heath and the home of the appellant. It was on this bridge that the fatal shooting occurred, and there were no eyewitnesses to the shooting, at least none was introduced by the appellant or the State in the trial court.
One Herbert Flowers was called by the State and testified as follows: Question: "What was his condition with reference to being alive or dead?" Answer:
Ray Campbell, a deputy sheriff of St. Francis county, was called by the State, and testified as follows: Question: "Where did Mr. Higdon live from where you found the body?" Answer: "About a mile and a quarter to a mile and a half south."
This deputy sheriff further testified that they (the deputy sheriff and three State policemen) proceeded to the home of the appellant, and took him in custody. Under further questioning, Deputy Sheriff Campbell testified as follows:
Question: "What did he (appellant) say about it?" Answer: "He said that he never had any trouble with him (Duran) and that he was one of the best hands he ever had." Question: "Did he make any statement about the killing?" Answer: "He said that he knew nothing about it."
Yet, the appellant took the stand and testified in his own behalf as follows: Question: Answer: "Yes, sir." Question: "Will you please state why you killed him?" Answer:
In addition to the foregoing admission by the appellant, it is noted that in ruling on the appellant's request and motion for the trial court "to instruct a verdict for the defendant on the ground that there was not sufficient testimony to sustain a charge of murder, and that there was no testimony that the defendant killed the deceased," the trial judge overruled said motion which was made at the conclusion of the direct testimony offered by the State, with these words:
In this, the trial court was correct, and this disposes of appellant's assignment of error number 5.
The appellant's assignments of error 1, 2, and 3 go to the sufficiency of the evidence, and it is insisted that the evidence is insufficient to warrant the verdict of the jury. The effect of said assignments of error 1, 2, and 3 is that the verdict of a jury which rests solely upon speculation and conjecture should not be permitted to stand. This, of course, is elementary law, but where, as here, the verdict does not rest solely upon speculation and conjecture, and there is evidence of a substantial nature which supports it, this Court has held in many cases, two as recently as May 10, 1948, that it will give the testimony tending to support the verdict its highest probative value. In Powell v. State, ante, p. 442, 210 S.W.2d 909, and in the case of Everett v. State, ante, p. 470, 210 S.W.2d 918, this Court held:
"We do not attempt to detail all of the evidence, but suffice it to say that after considering it all, and when we give to it, as we must, its strongest probative force in favor of the State, the testimony was ample to warrant the jury's verdict of murder in the second degree."
The appellant, as assignment of error No. 4, urges that his constitutional rights were invaded, and that he was deprived thereof by the trial court's refusal to abate and quash the information filed herein by the prosecuting attorney. This Court has very recently, in an opinion delivered April 5, 1948, in the case of Washington v. State, ante, p. 218, 210 S.W.2d 307, held adversely to such contention, with extensive citations.
Having hereinabove disposed of appellant's assignment of error No. 5, we pass to assignment of error No. 6, which is that the trial court fell into error in admitting photographs of the nude body of the deceased, showing the five bullet wounds therein, which appellant contends was highly prejudicial, and that said photographs do not reveal any facts that could not be introduced by oral testimony. There was no contention that such photographs were not those of the deceased, accurately taken, nor that the wounds were not the five bullet wounds which resulted in the deceased's death. These photographs, having been shown to be accurately taken and correct representations of the subject matter were admissible to show the area of injury. The admission and relevancy and materiality of photographs is left to the discretion of the trial judge, and any prejudicial abuse will justify reversal on appeal, but there was no such abuse in this case. Am. Jur., Vol. 20, 609, § 729. See, also, the same volume, § 728, p. 608.
"Photographs are admissible in evidence in criminal cases upon the same principles and rules governing their admission in civil cases."
For further citations on the admissibility of photographs, see Simmons v. State, 184 Ark. 373, 42 S.W.2d 549; Sellers v. State, 91 Ark. 175, 120 S.W. 840; Washington v. State, 181 Ark. 1011, 28 S.W.2d 1055; Nicholas v. State, 182 Ark. 309, 31 S.W.2d 527.
Appellant's assignment of error No. 7 goes to the trial court's overruling appellant's motion to strike the testimony of Lt. Allen R. Templeton with reference to the markings on the bullets removed from the...
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