Mode v. State

• Decision Date: 30 October 1961
• Docket Number: No. 5011,5011
• Citation: 234 Ark. 46,350 S.W.2d 675
• Parties: Lee MODE, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 675

350 S.W.2d 675

234 Ark. 46

Lee MODE, Appellant, v. STATE of Arkansas, Appellee.

No. 5011.

Supreme Court of Arkansas.

Oct. 30, 1961.

Rehearing Denied Dec. 4, 1961.

Brazil & Brazil, Morrilton, Holt, Park & Holt, Little Rock, Hardin, Barton & Hardin, Fort Smith, for appellant.

J. Frank Holt, Atty. Gen., by Thorp Thomas, Asst. Atty. Gen., for appellee.

McFADDIN, Justice.

From a conviction of second degree murder for the homicide of D. L. Russell, Lee Mode prosecutes the present appeal. The first appeal is Mode v. State, 231 Ark. 477, 330 S.W.2d 88, wherein we recited the facts and held that the appellant had shown only one error in the trial, which error concerned an instruction. The cause was remanded and, on retrial, Mode was again convicted of second degree murder and now prosecutes the present appeal. The error in the instruction in the first trial did not occur in the second trial.

With only a few exceptions, to be subsequently noted, the assignments in the motion for new trial in the present appeal are the same as the assignments in the motion for new trial in the first appeal, since the evidence offered and the rulings made were practically the same in both trials. The rule of 'law of the case' precludes the appellant from now urging any point that was assigned as error on the first appeal. Rankin v. Schofield, 81 Ark. 440, 98 S.W. 674; St. L. I. M. & S. Ry. Co. v. Hill, 92 Ark. 484, 123 S.W. 760; St. L. I. M. & S. Ry. Co. v. DeLambert, 120 Ark. 61, 178 S.W. 926; and Ford Motor Co. v. Fish, Ark., 346 S.W.2d 469. In Bowman v. State, 93 Ark. 168, 129 S.W. 80, this Court held that the rule of 'law of the case' was applicable to criminal cases as well as to civil cases, and such is also the rule in other jurisdictions. In 24 C.J.S. Criminal Law § 1840, p. 690, under the topic, 'Former Decision as Law of Case,' cases from sixteen jurisdictions are cited to sustain this statement:

'Generally the determination of the appellate court as to all questions within the record which are or might have been raised and decided will be the law of that case in subsequent proceedings in the case.'

The text also says:

'Hence a decision on a prior appeal in the same case as to the sufficiency of the evidence to authorize a conviction * * * is the law of the case on a subsequent appeal, where practically the same evidence is involved.'

Our long established rule in felony appeals is that this Court will consider every assignment in the motion for new trial, regardless of whether the assignment be argued in the briefs. In Martin v. State, 206 Ark. 151, 174 S.W.2d 242, we said:

'For reversal he has brought forward in his motion for a new trial fourteen assignments of error. While appellant, in his brief, argues but one alleged error,--that the evidence is not sufficient to support the verdict,--it becomes our duty, since appellant is charged with a felony, to consider all other alleged errors contained in the motion for a new trial, whether argued in appellant's brief or not. Eveland v. State, to Use of Fossett, 189 Ark. 517, 74 S.W.2d 221; Van Hook v. Helena, 170 Ark. 1083, 282 S.W. 673; Knighton v. State, 169 Ark. 293, 274 S.W. 10; and Babers v. State, 168 Ark. 1055, 272 S.W. 659.'

See also Boyd v. State, 215 Ark. 156, 219 S.W.2d 623.

The application of the foregoing rules means that the appellant is now precluded from urging as error any assignment in the motion for new trial in the present appeal if that assignment was contained in the motion for new trial in the first appeal, and based on a record exception. This is a sound rule: ¹ it prevents an appellant from failing to argue a point on the first appeal in order to save it as a possible ground for reversal should he be convicted at a second trial, and thus obtain a successive number of trials, with each involving an identical ruling in a previous trial, which ruling was not argued on the previous appeal.

We have made a careful comparison of the assignments contained in the motion for new trial in the present appeal, as against those contained in the motion for new trial in the first appeal. Under the rule of 'law of the case,' we eliminate all such, and we proceed now to discuss the assignments concerning matters which were not foreclosed by the first appeal.

I.

Testimony Of Jerry Russell At The Former Trial. Jerry Russell testified in the first trial, and a transcript of his testimony was read at the present trial after the State had offered evidence that the witness could not be found. Appellant claims the Court committed error in allowing the transcript of testimony to be read to the jury. The efforts to locate the witness were shown in considerable detail: subpoenas were returned 'non-est,' the State Police had been unsuccessful in a search for the witness, and the grandparents of the witness testified that they did not know where he was. In the light of such showing, we find no error committed by the Trial Court in allowing the State to read to the jury the testimony of the witness given at the former trial. Section 28-713 Ark.Stats. is the applicable statute, and says, inter alia, that such former testimony may be read to the jury '* * * when for any reason the former witness may not be available.' There was such a showing in this case. The objections to the content of the testimony of the witness, Jerry Russell, are foreclosed by the rule of 'law of the case,' supra.

II.

Relationship Between Mr. Mode And Mrs. Russell Subsequent To The Homicide. The witness, Clara Eggleston, introduced pictures of Mrs. Mildred Russell (wife of the deceased) taken in Sallisaw, Oklahoma, in 1959 and 1960. The witness also testified that in June, July, and August, 1959, Mrs. Russell was then going under the name of Mildred Mode and was living with Lee Mode in a trailer court in Sallisaw, Oklahoma. Two other witnesses also testified as to pictures of Mrs. Mildred Russell taken about the same time in Sallisaw, Oklahoma. In admitting such testimony of these witnesses, the Trial Court ruled:

'The court will repeat at this time that this testimony tending to show this association or togetherness of the two parties, that is, Mildred Russell and Lee Mode, if it does show, is admitted for the purpose of shedding light, if it does shed light, upon any motive for the killing involved in the trial of this case and to the relationship of the parties, if it does shed such light, prior to the difficulty or trouble resulting in the death of D. L. Russell, and it is not to be considered for any other purpose.'

We find no error in the Court's ruling. In Hornsby v. State, 163 Ark. 396, 260 S.W. 41, 44, Hornsby was accused of killing Mr. Fells because of Hornsby's love and infatuation for Mrs. Fells. In that case the Trial Court allowed letters to be introduced that Hornsby had written Mrs. Fells after they were put in jail. This Court affirmed the ruling of the Trial Court, saying:

'The court did not err in permitting the state to introduce the letters of the appellant to Mrs. Fells after they were put in jail. These letters were identified as the letters of the appellant, and he does not dispute that they were his letters. They were filled with protestations of love for Mrs. Fells, and tended to corroborate her testimony to the effect that appellant was in love with her at the time he killed Fells and tended to prove a motive on the part of the appellant for killing Fells. Stokes v. State, 71 Ark. 112-117, 71 S.W. 248. 'The state may show the existence of a motive for taking the life of the deceased in determining guilt or innocence of the accused.' Avey v. State, 149 Ark. 642, 233 S.W. 765, and cases there cited. See also Sneed v. State, 159 Ark. 65-74, 255 S.W. 895.'

So, in the case at bar, the evidence that Mrs. Russell and Mr. Mode were living together in a trailer court in Sallisaw, Oklahoma during the summer of 1959 would be admissible on the question of motive, if any, as to the cause of the homicide; and also the conduct of Mode and Mrs. Russell subsequent to the homicide could be shown as shedding light on the relationship toward each other prior to the homicide.

III.

Evidence of Good Character Of Deceased. This is the point that has given us the most serious concern. ² Assignment No. 43 in the motion for new trial reads:

'The court erred in admitting the testimony of Ted L. Welborn, over the objection and exceptions of the defendant, to the effect that the reputation of D. L. Russell was good; that he was a peaceable, law-abiding citizen; to which ruling of the court the defendant at the time objected and duly saved his exceptions.'

This assignment cannot be disposed of by the rule of 'law of the case' because, in the first trial, there was no objection to testimony of the good character of the deceased. But in the trial from whence comes this appeal, the following occurred when the witness Welborn was testifying for the State on rebuttal:

'Q. Did you know D. L. Russell prior to his death? A. Yes, sir.

'Q. Was he a resident of Faulkner County? A. He was.

'Q. Did you know his reputation among those who knew him for being a peaceable law abiding citizen.

'Mr. Holt: We object to that, as being improper.

'By the Court: Your objection will be overruled.

'Mr. Holt: Save our exceptions. A. I do.

'Q. Did you know him on October 13, 1958? A. I did

'Q. Do you know what his reputation was on October 13, 1958 for being a peaceable, law-abiding citizen. A. I think so, yes, sir.

'Q. What was that reputation, good or bad? A. Well--that puts me on the spot. There had been a disturbance that I had been called to.

'Q. We are talking about his reputation, Mr. Welborn. A. His reputation was good.

'Q. Those times that you were called, you testified about those yesterday? A. Yes, sir.

'Q. Once at the instance of 'Mutt' Jones? A. That is right.

'Q. And the instance of Lee Mode? A. Yes, sir.

'Q. And once at the instance of Gerald Mode? A. That is right.'

Appellant insists...