Kirkendall v. State, CR78-181

Citation581 S.W.2d 341,265 Ark. 853
Decision Date29 May 1979
Docket NumberNo. CR78-181,CR78-181
PartiesJohnny Wayne KIRKENDALL, Appellant, v. STATE of Arkansas, Appellee.
CourtSupreme Court of Arkansas

Roy E. Danuser, Mountain Home, Hardin, Jesson & Dawson, Fort Smith, for appellant.

Steve Clark, Atty. Gen. by Alice Ann Burns, Asst. Atty. Gen., Little Rock, for appellee.

PURTLE, Justice.

Appellant was charged with Manslaughter, Ark.Stat.Ann. § 41-1504 (Repl.1977), and Failure to Stop and Render Aid, Ark.Stat.Ann. § 75-901 (Repl.1957), as a result of the death of Gale Wayne Stahl in an automobile accident on February 25, 1978, in Marion County. The deceased was riding in an automobile with appellant when it left the highway and crashed. A jury trial in the Marion Circuit Court resulted in appellant's conviction on both charges. The jury fixed punishment on the manslaughter conviction at 5 years and 30 days for failure to stop and render aid. The court suspended two-and-a-half years of the felony conviction and further provided the misdemeanor conviction would run concurrently with the other sentence. Appellant appeals from both convictions.

Four grounds for reversal are alleged on appeal.

I.

THE CIRCUIT COURT ERRED IN FAILING TO GRANT APPELLANT'S MOTION FOR CHANGE OF VENUE.

Appellant bases his motion for a change of venue upon Ark.Stat.Ann. § 43-1501 (Repl.1977) which reads as follows Any criminal cause pending in any circuit court may be removed by the order of such court, or by the judge thereof in vacation, to the circuit court of another county, whenever it shall appear, in the manner hereinafter provided, that the minds of the inhabitants of the county in which the cause is pending are so prejudiced against the defendant that a fair and impartial trial cannot be had therein.

The burden of proof is upon the appellant on a motion to change the venue. Maxwell v. State, 236 Ark. 694, 370 S.W.2d 113 (1963). The decision of the trial court will be upheld unless it is shown there was an abuse of discretion in denying the motion. Wood v. State, 248 Ark. 109, 450 S.W.2d 537 (1970).

The trial court conducted a hearing on appellant's motion for a change of venue and denied it. Two affidavits were offered in support of the motion and the affiants testified personally before the court. They testified that in their opinion appellant could not receive a fair trial in Marion County. Evidence of a pending wet-dry election was presented with the allegation that the public was aroused about the use of intoxicating beverages and since the evidence would show appellant had been drinking the wet-dry issue would prevent the appellant from receiving a fair and impartial trial. On the other hand, the state introduced six affidavits that the appellant would, in their opinion, receive a fair trial. These affiants did not appear to testify in person at the hearing. Appellant contends more weight should be given to his witnesses because they appeared in person.

It was not necessary for the affiants to appear and testify at the hearing. DuBois v. State, 258 Ark. 459, 527 S.W.2d 595 (1975). If every accused who moved for a change of venue were granted his request because he offered affidavits and testimony to support the motion, few cases would be held in the county where the alleged criminal act occurred. No doubt every accused could muster some support for a change of venue. A change of venue should be granted only when it is clearly shown that a fair trial is likely not to be had in the county. For these reasons such matters are left to the sound discretion of the trial court who is in a much better position to evaluate the situation than we are. We have carefully examined the record and are unable to say the trial court abused its discretion in this case.

II.

THE STATEMENT GIVEN BY THE APPELLANT TO THE STATE TROOPER IN THE EARLY MORNING HOURS FOLLOWING THE ACCIDENT SHOULD NOT HAVE BEEN ADMITTED INTO EVIDENCE.

The supreme court is required to make an independent examination regarding the voluntariness of a confession when it is questioned. Degler v. State, 257 Ark. 388, 517 S.W.2d 515 (1974); Davis v. North Carolina, 384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895 (1966). The supreme court conducted the required hearing and determined the inculpatory statement was voluntary. Harris v. State, 244 Ark. 314, 425 S.W.2d 293 (1968); Payne v. State, 231 Ark. 727, 332 S.W.2d 233 (1960). The trial court's decision must be based upon the totality of the circumstances. Degler, supra. The Denno hearing was held on April 21, 1978, and the trial was held on June 20, 1978. Apparently this is the reason appellant did not abstract the separate hearing. However, the appellee has supplemented this portion of the record and it reveals the court heard the testimony of officers Harvey George, Herbert Hinsley and George Mann, as well as witnesses for appellant. Without setting out the details of this testimony, we find that the state met its burden of proof on voluntariness. The evidence included a waiver of rights form signed by appellant. We cannot say the finding of the court was clearly erroneous and therefore find no error.

III.

THE VERDICT OF THE JURY BELOW IS NOT SUPPORTED BY ANY SUBSTANTIAL EVIDENCE AND THEREFORE MUST BE REVERSED.

Ark.Stat.Ann. § 41-1504 (Repl.1977) states a person commits manslaughter if he recklessly causes the death of another person. "Recklessly" is defined in Ark.Stat.Ann. § 41-203(3) (Repl.1977) as follows:

(3) "Recklessly." A person acts recklessly with respect to attendant circumstances or a result of his conduct when he consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of a nature and degree that disregard thereof constitutes a gross deviation from the standard of care that a reasonable person would observe in the actor's situation.

Ark.Stat.Ann. § 75-901 (Repl.1957) provides:

(a) The driver of any vehicle involved in an accident resulting in injury to or death of any person shall immediately stop such vehicle at the scene of such accident or as close thereto as possible but shall then forthwith return to and in every event shall remain at the scene of the accident until he has fulfilled the requirements of section 38 (§ 75-903). Every such stop shall be made without obstructing traffic more than is necessary.

(b) Any person failing to stop or to comply with said requirements under such circumstances shall upon conviction be punished by imprisonment for not less than 30 days nor more than 1 year or by fine of not less than $100 nor more than $5,000, or by both such fine and imprisonment.

The evidence presented at the trial was to the effect that appellant was so...

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10 cases
  • Berry v. State
    • United States
    • Arkansas Supreme Court
    • 3 November 1986
    ...of venue should be granted only when it is clearly shown that a fair trial is likely not to be had in the county." Kirkendall v. State, 265 Ark. 853, 581 S.W.2d 341 (1979). The burden of proof is on the defendant in a motion to change the venue and the decision of the trial court will be up......
  • Gardner v. State, CR
    • United States
    • Arkansas Supreme Court
    • 20 June 1988
    ...of the trial judge will be upheld unless it is shown that there was an abuse of discretion in denying the motion. Kirkendall v. State, 265 Ark. 853, 581 S.W.2d 341 (1979). We have emphasized the significance of the trial court's opportunity to observe the witnesses, and have held that those......
  • Snell v. State
    • United States
    • Arkansas Supreme Court
    • 15 December 1986
    ...by purely mechanical formulas. We have held these issues are largely subject to the trial court's discretion. In Kirkendall v. State, 265 Ark. 853, 581 S.W.2d 341 (1979), we A change of venue should be granted only when it is clearly shown that a fair trial is likely not to be had in the co......
  • Rollins v. State
    • United States
    • Arkansas Supreme Court
    • 8 October 2009
    ...the scene was to get her car fixed. Based on these facts, we see no reason to distinguish this case from the case of Kirkendall v. State, 265 Ark. 853, 581 S.W.2d 341 (1979), wherein the court affirmed a conviction of manslaughter on similar facts.Id. at 228, 623 S.W.2d at 864. In the prese......
  • Request a trial to view additional results

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