Rogers v. State

• Decision Date: 28 October 1918
• Docket Number: 198
• Citation: 206 S.W. 152,136 Ark. 161
• Parties: ROGERS v. STATE
• Court: Arkansas Supreme Court

206 S.W. 152

136 Ark. 161

ROGERS v. STATE

No. 198

Supreme Court of Arkansas

October 28, 1918

Appeal from Pulaski Circuit Court, First Division; John W. Wade Judge; affirmed.

STATEMENT OF FACTS.

Defendant was indicted in proper form for the crime of murder in the first degree in killing a certain infant whose real name, it is alleged, "is unknown to these grand jurors." He was convicted of murder in the second degree and sentenced to ten years' imprisonment in the State penitentiary, and duly prosecutes this appeal. The testimony shows that on Sunday morning in May, 1917, in Pulaski County, Arkansas, the dead body of an infant was found in the back water of Fourche Creek. An inquest was held and an autopsy had on the body of the infant, and physicians testified that its death was caused by asphyxiation and drowning. The body appeared to have been in the water from eighteen to twenty-four hours. The infant was about two or three months old at the time of its death.

Elizabeth Mosley testified that she was twenty-five years old, and had known the defendant four years, and had worked for him about ten months in the year 1916. On March 21, 1917, she gave birth to a baby at the house of Cora Critz in Little Rock. She went to Cora Critz's in January. The defendant was the father of her child. Defendant and witness had been intimate since she began working for him. When the baby was born, defendant wanted witness to give it away, but she would not agree to it. He said some woman in Argenta wanted a little baby. On May 5, 1917, defendant came to the Critz house and took witness and the baby away. He took witness to Mary Williams', and then took the baby off in the buggy. Witness described how the baby was dressed when it left her possession and testified that the dead body of the baby had on the same clothes that it had when defendant took the baby away. Witness never saw the baby after that until she saw it at the cemetery about June 15. It was the understanding that defendant was to take the baby to Keo. She called him up over the telephone and asked him about the baby and he said it was at Keo. She called him up the day before witness was arrested, and he told her the same thing about the baby. After the baby was found, witness was arrested, charged with the murder of her child. Witness never told any one that defendant was the father of the child until after she was arrested. When defendant found the witness was pregnant, he did not want her to stay at home.

Mary Williams testified that she was keeping a rooming house in Little Rock. On May 5, 1917, defendant came to her house at 7:30 p. m. and asked if she had a room to rent a lady. She told him she had. He then went out, came back with a suitcase and other things, and put them on the stairway. In a few minutes after he left, the woman, Elizabeth Mosley, came in. She did not have the baby with her. She was clad all right only weak physically. Witness had the following conversation with her: "I said, 'You are sick. You look like you run away.' She said, 'I have been sick ever since I gave birth to my baby.' And I said, 'How old is your baby?' and I asked her where her baby was, and she said she gave it to some people to take care of while she looked for a job."

The testimony of Cora Critz, as taken down at a former trial by the court stenographer, was read over the objection of defendant, and to the ruling of the court in admitting her testimony to be read he duly excepted. She testified that Elizabeth Mosley came to her house the first time about February 1, 1917, and lived there until May. The defendant first came to make arrangements with witness for Elizabeth Mosley to stay at witness' house, and said for witness to look to him for the rent. The defendant first came with Elizabeth Mosley. She was in a family way when she came. Defendant would go to her room sometimes when he came to pay the rent. The child was born at witness' house. Defendant went for the doctor. The child was about one month old when defendant and Elizabeth Mosley took it away from witness' house. They left witness' house about dusk in a buggy and did not tell witness where they were going.

George Lewis, one of the detectives who arrested the defendant testified that he had a conversation with the defendant as to what defendant did on the night of May the 5th. The defendant said he got the girl and baby near Eighth and Victory streets and took them to Mary Williams, on Ninth and Chester. From there he went out the Arch street pike, crossed six or seven miles out and went across to Sweet Home. He stated that he did not see any one on the way home after he left Mary Williams' house. He stated that the last time he saw the Mosley girl and baby was when he put them out at Mary Williams'.

The defendant, in his own behalf, testified that he knew nothing about the death of the baby. He was intimate with Elizabeth Mosley from about September 1, 1916. He found out she was in a family way some time about the first of October. Witness then took her to Cora Critz's, and from there to Mary Williams'. Witness drove down on the south side of the street, got out of the buggy, took Elizabeth Mosley's grip, etc., carried them across the street and set them on the curb; did not want to be embarrassed by taking them in and then being denied. He asked Mary Williams if she would take care of her, and she said she would. He took Elizabeth Mosley by the arm and helped her out of the buggy. She had the baby in the other arm. Witness then got in the buggy and drove off. Witness then described the route he took that night after leaving Mary Williams' and the places where he stopped and mentioned the names of persons whom he met. Witness was a preacher and an organizer of societies. He stated that after leaving the Mosley woman at Mary Williams', the reason he went out on the Arch street pike was that previous to that time he had made an arrangement with Jackson Jones to get up a lodge out there on that night. He went to his house that night but that Jones was not at home. The last time he saw Elizabeth Mosley before he was arrested was on May 5, when he put her and the baby out at Mary Williams'. Elizabeth was arrested first. Defendant testified that some twenty-two years ago he had been sentenced to the penitentiary, but was pardoned and never served a day.

There was testimony tending to corroborate the testimony of the defendant as to the places where he went and the persons whom he saw on the Saturday night after leaving the house of Mary Williams. There was testimony, also, tending to show that defendant had a good reputation. Defendant offered to show by the records that Elizabeth Mosley was tried in the examining court and bound over to the grand jury on a bond of $ 5,000 on a charge of murdering her child, which bond she failed to make and spent several weeks in jail. The court refused to allow this testimony, and the defendant duly excepted. Other facts stated in the opinion.

Judgment affirmed.

Fred A. Isgrig and S. A. Jones, for appellant; Gardner K. Oliphint, on the brief.

1. The verdict is unsupported by the evidence. Elizabeth Mosley was an accomplice and her testimony is not corroborated. Kirby's Digest, § 2384; 63 Ark. 457; 130 Id. 353; 161 Cal. 433; 36 Ark. 126; 50 Id. 544; 75 Id. 111; 114 Id. 300; 119 P. 901; 39 L.R.A. (N. S.) 704-5; 75 Ark. 542; 64 Id. 247.

2. The evidence is all circumstantial and is not consistent with the guilt of defendant. It does not convict beyond reasonable doubt. 52 Ark. 226; 68 Id. 529; 83 Id. 192; 85 Id. 360; 117 Id. 296; 118 Id. 349. Mere suspicion or conjecture is not sufficient, the testimony must be substantial. 97 Ark. 156 and cases ante.

3. A party can not corroborate himself by proving what he said or did at another time. 92 Ark. 472; 116 Id. 482. The testimony of Mary Williams does not corroborate Elizabeth Mosley's and it was incompetent. 88 Ark. 451; 109 Id. 130; 10 R. C. L. 959, 960, §§ 133-4; 86 Ark. 23; 204 F. 909-12-13; 227 Id. 855; 154 Id. 577; 120 Ark. 148.

4. As to the insufficiency of the evidence to support a verdict, see also 1 McLain, Cr. Law, § 409; 43 Mont. 31; 114 P. 112; Ann. Cas. 1912 C, 235; 50 N.W. 59; 109 Iowa 624; 70 Ark. 385; 57 Id. 492; 10 Id. 492; 34 Id. 639. The testimony of defendant and his witnesses is uncontradicted and the jury had no right to disregard it. 101 Ark. 532; 96 Id. 504; 80 Id. 396; 67 Id. 514; 53 Id. 96.

5. The corpus delicti was not established. 34 Ark. 720, 743-4-6-7; 1 Wharton, Cr. Law, § 346 et seq.; 131 S.W. 553.

6. The State failed to prove the allegation that the real name of the infant was unknown to the grand jury. It was material. 38 Ark. 637; 13 Id. 712; 16 Id. 499, 502-3; 34 Id. 720; 30 Id. 162; 80 Id. 94; 18 Enc. Pl. & Pr. 1222; 58 Ark. 35; 33 S.W. 779, 802; 38 Id. 331; 30 Ind. 115; 14 R. C. L. 174, 183; Kirby's Dig., § 2233; 14 Cal. 581; 1 Chitty, Cr. Law, § 213; 19 Ark. 613; 161 P. 331. See also 32 Ark. 722; 16 Id. 568; Ib. 610; 29 Id. 34; 97 A. 780; Kirby's Dig., § 2233; 124 U.S. 486; 157 Id. 187; 241 F. 841.

7. It was error to permit the prosecuting attorney to read the testimony of Cora Critz taken at a former trial. No proper foundation was laid. 95 Ark. 172, 176.

8. It was error to permit the prosecuting attorney to elect to waive the death penalty. There was also error in instruction on murder in the first degree. 202 S.W. 49; Kirby's Dig., § 2363; 88 Ark. 20; 14 R. C. L. 782, 784-5. See also 85 Ark. 514; 54 Id. 336; 82 Id. 127; 77 Id. 567; 76 Id. 599.

9. There was error in the rulings and statements made during the reception of the testimony. 107 Ark. 472; 123 Id. 146; 51 Id. 147; 53 Id. 387; 56 Id. 345; 111 Id. 134; 43 Id. 104; 69 Id. 648.

10. There is error in the instructions as to...