Stewart v. State

• Decision Date: 17 April 1961
• Docket Number: No. 4996,4996
• Citation: 233 Ark. 458,345 S.W.2d 472
• Parties: Clarence STEWART, Jr., Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 472

345 S.W.2d 472

233 Ark. 458

Clarence STEWART, Jr., Appellant, v. STATE of Arkansas, Appellee.

No. 4996.

Supreme Court of Arkansas.

April 17, 1961.

Rehearing Denied May 15, 1961.

Thad D. Williams and Harold B. Anderson, Little Rock, for appellant.

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

HOLT, Justice.

The appellant, Clarence Stewart, Jr., a Negro, was charged by information with the crime of first degree murder. The jury returned a verdict of guilty and punishment was assessed at death. William N. Caldwell was an elderly, partially crippled man who owned and operated a small auto parts store in the city of North Little Rock. On January 8, 1959, around noon his body was discovered in his store by a customer. An investigation revealed that Mr. Caldwell had been stabbed nineteen times with six of the knife wounds penetrating the heart. The county coroner testified that death was due to hemorrhaging from multiple knife wounds. A hunting knife was removed from the body. Subsequent investigation by police officers led to the arrest of Clarence Stewart, Jr., the following evening, January 9, 1959. After questioning, Stewart admitted stabbing Mr. Caldwell with the knife found in the body. Later Stewart led police to the spot where he had discarded a tackle box stolen from Caldwell's place of business. Inside the box was found a government check in the amount of $51.61 payable to Mr. Caldwell, a property tax assessment slip in Caldwell's name, and a burial insurance policy. After showing officers the location of the tackle box, Stewart instructed the officers to drive to the home of Ellis Thomas and there about seventy-five yards from the house, Stewart's billfold containing $29 stolen from Caldwell was found. The billfold also contained the appellant's social security card which reflected that he was born February 23, 1938. About a mile and a half from the appellant's home, Stewart told the police officers to stop their car and they were led to a spot where Caldwell's billfold was recovered. Approximately three-quarters of a mile from Caldwell's billfold the appellant showed the officers where he had torn up and discarded the papers taken from Caldwell's billfold. Half of a social security card and other papers of Caldwell's were found. Stewart was charged with the crime of first degree murder. A trial was had and the jury returned a verdict of guilty and assessed the penalty at death. This appeal comes from that judgment.

First, the appellant argues for reversal that insanity caused by a defect or deficiency in the mind is a valid defense and relies upon the case of Durham v. United States, 94 U.S.App.D.C. 228, 214 F.2d 862, 45 A.L.R.2d 1430. However, the Durham rule has been expressly rejected in this state in Downs v. State, Ark., 330 S.W.2d 281, and in many other jurisdictions which have had an opportunity to pass upon the question. See: People v. Ryan, 140 Cal.App.2d 412, 295 P.2d 496; Castro v. People, 140 Colo. 493, 346 P.2d 1020; State v. Taborsky, 147 Conn. 194, 158 A.2d 239; Piccott v. State, Fla., 116 So.2d 626; People v. Carpenter, 11 Ill.2d 60, 142 N.E.2d 11; Flowers v. State, 236 Ind. 151, 139 N.E.2d 185; Commonwealth v. Chester, 337 Mass. 702, 150 N.E.2d 914; State v. Finn, 257 Minn. 138, 100 N.W.2d 508; State v. Goza, Mo., 317 S.W.2d 609; State v. Kitchens, 129 Mont. 331, 286 P.2d 1079; Sollars v. State, 73 Nev. 248, 316 P.2d 917; State v. Lucas, 30 N.J. 37, 152 A.2d 50; Commonwealth v. Novak, 395 Pa. 199, 150 A.2d 102; State v. Goyet, 120 Vt. 12, 132 A.2d 623; State v. Collins, 50 Wash.2d 740, 314 P.2d 660. The instruction [No. 13 on insanity] given in the present case was taken from Bell v. State, 120 Ark. 530, 180 S.W. 186, and set out the law of insanity as a defense to a criminal action as recognized in this state as follows: 'State's Requested Instruction No. 13. You are instructed that before insanity can be a defense, it is necessary for you to believe, by a preponderance of the evidence, first, that at the time of the alleged crime the defendant was under such a defect of reason from disease of the mind as not to know the nature and quality of the act he was doing, or, second, if he did know it, that he did not know that he was doing what was wrong, or, third, if he knew the nature and quality of the act and knew that it was wrong, that he was under such duress of mental disease as to be incapable of choosing between right and wrong as to the act done and unable, because of the disease, to resist the doing of the wrong act which was the result solely of his mental disease.' The defendant objected to the action of the court in giving the State's Requested Instruction No. 13 and at the time asked that his exceptions be noted of record, which was accordingly done. 'Mr. Williams: We specifically object to the State's Instruction No. 13 because it does not consider deficiency or disorder or defect.' Three psychiatrists testified as to Stewart's mental capacity and all agreed that the appellant was mentally dull but that he was without psychosis and knew right from wrong. In addition the report of the Arkansas State Hospital's examination was introduced in evidence which agrees in all particulars with the above testimony and further adds that Stewart was probably not mentally ill, to the degree of legal irresponsibility, at the time of the alleged commission of his acts. The fact that one has a mind below normal does not exempt him from punishment for his criminal acts. Ezell v. State, 217 Ark. 94, 229 S.W.2d 32.

Second, the appellant argues that the admission in evidence of photographs of the deceased and other photographs showing the premises were prejudicial. The introduction of photographs rests largely within the discretion of the trial judge, Oliver v. State, 225 Ark. 809, 286 S.W.2d 17; Lee v. State, 229 Ark. 354, 315 S.W.2d 916, and are admissible for the purpose of describing and identifying the premises which were the scene of a crime. See Zinn & Cheney v. State, 135 Ark. 342, 205 S.W. 704; Simmons v. State, 184 Ark. 373, 42 S.W.2d 549; Underhill, Criminal Evidence (5th ed.) § 117. Photographs may also be admitted to establish the corpus delicti of the crime charged, to disclose the environment of the crime at the time it was committed, and to corroborate testimony. Wharton's Criminal Evidence (11th ed.) § 773. The photographs introduced in evidence in the present case meet one or all of the above conditions and were clearly admissible.

Third, appellant says: 'Defendant's requested Instruction Number 18 asked that the death verdict have the following form, to-wit: 'We the jury, find the defendant guilty of murder in the first degree, as charged in the information and fix his punishment at death by electrocution.' However, the court below amended the form for the death verdict by striking 'and fix his punishment at death by electrocution.' The jury returned a death verdict in the form as instructed by the court. After giving the death verdict form the court instructed the jury that: 'this form of verdict automatically carries the death penalty with it.' However the verdict itself does not prescribe the punishment and this defect is not cured by an instruction from the court. If the verdict itself has...