Renton v. State

• Decision Date: 12 October 1981
• Docket Number: No. CR,CR
• Citation: 274 Ark. 87,622 S.W.2d 171
• Parties: James Ray RENTON, Appellant, v. STATE of Arkansas, Appellee. 80-60.
• Court: Arkansas Supreme Court

Page 171

622 S.W.2d 171

274 Ark. 87

James Ray RENTON, Appellant, v. STATE of Arkansas, Appellee.

No. CR 80-60.

Supreme Court of Arkansas.

Oct. 12, 1981.

Rehearing Denied Nov. 9, 1981.

Matthew Horan, Fayetteville, and Thomas M. Carpenter of Lessenberry & Carpenter, Little Rock, for appellant.

Steve Clark, Atty. Gen. by Theodore Holder, Asst. Atty. Gen., Little Rock, for appellee.

HAYS, Justice.

On the morning of December 21, 1975, the body of John Tillman Hussey, a Springdale Police Officer, was found in a wooded area west of Fayetteville. His hands were handcuffed behind his back and he had been shot four times through the head with his service revolver. In January a felony information was filed charging the appellant and Harold Davey Cassell ¹ with the crime of capital felony murder of a police officer acting in the line of duty. Ark.Stat.Ann. § 41-4702 (Supp.1975). Seventeen months later appellant was arrested in Denver, Colorado, using an assumed name. He was tried, convicted and appeals the judgment sentencing him to life without parole, alleging six errors. We affirm the judgment.

I.

Appellant's former girl friend, Ms. Connie Marie Caves, provided crucial testimony for the prosecution, including several incriminating statements which she said appellant made to her while they were living together. Appellant insists that he and Ms. Caves were husband and wife under the law of Texas, one of 13 states recognizing common law marriages, and that his claim of the marital privilege should have been granted. Because the issue is critical and involves the law of another state, we examine it in detail, looking first to the evidence and then to the applicable law.

Appellant married Susan Frazier Renton in 1972 and heard indirectly that she had divorced him in 1975, around the time he met Ms. Caves, a high school senior in Salislaw, Oklahoma. Immediately after her graduation Ms. Caves and the appellant left Oklahoma. They first travelled to Arkansas and then to Texas where a simulated wedding ceremony was performed on June 8, 1975. The implication of Ms. Caves' testimony is that appellant had promised to marry her and the ceremony was an appeasement which she characterized as a "farce" the witnesses and the appellant using aliases and treating the matter as a joke. What the legal significance may have been is essentially moot, however, because appellant and Susan Frazier Renton were not divorced until April 28, 1976, almost a year later.

There are a number of aspects of this relationship which are seldom, if ever, present in common law marriages: The traditional use of surname is lacking as appellant appears to have used aliases entirely, even in the putative ceremony; one party to the relationship, appellant, claims their relationship was a marriage, whereas Ms. Caves did not consider it a marriage; the parties would at times register at motels as man and wife, usually as Mr. and Mrs. Jimmie Lee Ford, but at other times they would not; they held themselves out as man and wife at times and at other times they disclaimed any marital relationship, notably while living in Oklahoma City from October, 1976, to early 1977, during which appellant posed as Gene Harold Chapman and Ms. Caves as Kathy Taylor, identified to their acquaintances as the sister of appellant's deceased girl friend; at one point appellant told Ms. Caves to tear up the "marriage license;" the relationship, according to Ms. Caves, was tainted by appellant's urging her to engage in prostitution, to share him and his bed with a Rita Shapp and to have sexual relations with his friend Cassell, all of which she refused; rather than continuing until the death of one, the relationship ended abruptly in January of 1977 when appellant left Ms. Caves and was arrested a year and a half later in Denver, during which she gained the impression that he had taken another girl friend; after his arrest, appellant denied any marital tie to Ms. Caves, answering more than once under oath that he was separated from Susan Frazier Renton and on one occasion naming Rita Shapp as his wife. He insists this was done to protect Ms. Caves, and perhaps so, but his disavowal is a relevant fact in determining whether he and Ms. Caves regarded themselves as husband and wife. His denial, coupled with the other unusual aspects, is incongruent with the good faith requirement of common law marriages. Bickford v. Carden, 215 Ark. 560, 221 S.W.2d 421 (1949).

Appellant relies on the law of Texas, but when that body of law is examined in the light of the evidence the claim cannot be sustained. The Texas statutory definition of informal marriages is found in Texas Family Code Ann. § 1.91 (Vernon 1975), providing that such marriages may be proved by evidence that the parties agreed to be married and after the agreement lived in Texas as husband and wife, representing to others that they were married.

There is an abundance of case law that claims of common law marriages should receive "close scrutiny" by the courts. Bodde v. State, 568 S.W.2d 344 (Tex.Cr.App.1978); Chatman v. State, 513 S.W.2d 854 (Tex.Cr.App.1974). It is said that the agreement of marriage must be specific on both sides. Archie v. State, 511 S.W.2d 942 (Tex.Cr.App.1974). In the case of Welch v. State, 151 Tex.Cr.R. 356, 207 S.W.2d 627 (1948), it is said that stability and permanence are "vital" to common law marriages.

In McChesney v. Johnson, 79 S.W.2d 658 (Tex.Cr.App.1934), it was said that consistency was an essential requirement of common law marriages, and

(i)f the conduct of such contracting parties does not show clearly an honorable abiding by such agreement before the eyes of their world of associates and contacts, then it should not receive judicial sanction. (Emphasis added.)

Two early Arkansas decisions examining Texas common law marriages are Evatt v. Miller, 114 Ark. 84, 169 S.W. 817 (1914), and Darling v. Dent, 82 Ark. 76, 100 S.W. 747 (1907). Dicta from both opinions cite the requirement that the parties must agree presently to take each other as husband and wife and live "from that time on professedly in that relation." (Emphasis added.)

Appellant has still another hurdle: At the time the alleged common law marriage began he was still married to Susan Frazier Renton and continued to be until April 28, 1976. He contends that no new agreement is necessary to validate the marriage after the impediment is removed, relying on Gorman v. Gorman, 166 S.W. 123 (Tex.Civ.App.1914) and Bull v. Bull, 29 Tex.Civ.App. 364, 68 S.W. 727 (1902). Both cases are distinguishable: In Gorman the couple continuously lived together as man and wife until the death of one, never knowing of any impediment to their marriage. In Bull, in contrast to the case before us, there was no evidence that the couple separated or resumed single status, or did anything inconsistent with a marriage status for 13 years until the death of one, four years after the impediment was removed.

We can find no evidence appellant and Ms. Caves ever cohabitated in Texas after appellant's divorce, nor any evidence from which a new agreement to be man and wife can be inferred. They did cohabit briefly in Seattle, Washington, after appellant's divorce, but common law marriages are not recognized in that state. In re McLaughlin's Estate, 30 P. 651 (Wash.). Clark on Domestic Relations, 2d Ed., Sec. 3, p. 67.

If more were necessary, we note that on more than one occasion after his arrest appellant was asked if he was married and answered "no." It would be a gross distortion to say that a relationship as dubious as this one, clearly lacking in the essentials of stability, consistency and permanency, could rise to the level of marriage, either before or after the divorce and we readily conclude that the trial court was correct in refusing to invoke the marital privilege. The purpose behind the marital privilege is to promote the permanency and solidarity of the marital union; to cloak this relationship with the protective sanctions of marriage would serve only an unworthy end.

II.

Appellant argues that the State failed to prove that Officer Hussey was acting in the line of duty as required by the Capital Murder Statute, Ark.Stat.Ann. § 41-1501(b) (Repl.1977), citing Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), for the proposition that the State must prove every element of the charge and aggravating circumstance in enhancement of the degree of culpability, beyond a reasonable doubt. The State's proof was sufficient.

The distinction between a police officer's duty and his authority to make a lawful arrest is essential. Officer Hussey was not stripped of his capacity to act as a policeman in the line of duty merely by leaving the Springdale city limits. Since Officer Hussey could not testify, proof of the lawfulness of the stop of the International Travel-all is not available. Under these circumstances, any conclusion that Officer Hussey was authorized to act as he did pursuant to the Arkansas "fresh pursuit" statute is speculative, but non-essential. An abundance of evidence was presented from which the jury could conclude that Officer Hussey was acting in the line of duty. Hussey had gone on duty at midnight on December 20, 1975, and between the hours of 3 and 4 a.m. was on patrol. At 3:49 a.m. he reported to the Springdale radio dispatcher that he was stopping a vehicle bearing a Texas license plate numbered JEX966 for a traffic violation. Hussey made this report near the southern border of Springdale. Moments later his car was found, door open and lights flashing, about eight tenths of a mile south of the Springdale city limits but with Hussey missing. Officer Hussey was working in an area where he would be expected to be, the incident happened during his regular shift and he was engaged at the time in duties regularly performed and expected. Thus, the elements of time, activity and location, all coincide to support the...