Trammell v. State

• Decision Date: 19 October 1936
• Docket Number: Crim. 3998
• Citation: Trammell v. State, 97 S.W.2d 902, 193 Ark. 21 (Ark. 1936)
• Parties: TRAMMELL v. STATE
• Court: Arkansas Supreme Court

97 S.W.2d 902

193 Ark. 21

TRAMMELL v. STATE

Crim. 3998

Supreme Court of Arkansas

October 19, 1936

Appeal from Crawford Circuit Court; J. O. Kincannon, Judge affirmed.

Judgment affirmed.

Partain & Agee, Roy Gean and Hardin & Barton, for appellant.

Carl E Bailey, Attorney General, and J. F. Koone, Assistant, for appellee.

OPINION

SMITH, J.

Appellant was indicted for murder in the first degree, alleged to have been committed by killing one Mary Mahar. Upon his trial he was found guilty of voluntary manslaughter and given a sentence of seven years in the penitentiary, from which is this appeal.

It is first very earnestly insisted that the testimony is not legally sufficient to sustain the verdict and judgment, and this appears to be the assignment of error chiefly relied upon for the reversal of the judgment.

The case grows out of a tragedy which happened at the Grotto Club swimming pool about thirty miles from Fort Smith. A party of fifteen young people, residents of that city, consisting of seven couples, some of whom were married, and one extra young man, went to the pool on July 4, 1935, to swim. Appellant went on his motorcycle, and was the escort of a young woman named Dorothy Karps, who became and was the most important witness against him at the trial from which this appeal comes. Miss Karps testified that on the way to the clubhouse appellant stopped and bought a bottle of whisky, and they had several drinks. Other members of the party also had whisky. Appellant's brother, Mont Trammell, escorted the deceased, Mary Mahar, who was a young woman less than fifteen years old according to the testimony of her mother.

All the members of the party except the two young women just named had bathing suits. Having no suits, they did not undress at the clubhouse, as other members of the party did except appellant, who did not go in bathing until later. The young women went a few hundred yards up the creek, and removed all their clothing except their step-ins and brassieres, after which they went bathing in the creek. To reach the place where they undressed they had to walk about two miles to cross the creek on a bridge. Witnesses described the part of the creek where the bathers were as being like a lake about a half-mile long and from seventy-five to one hundred twenty-five feet wide. Dorothy Karps testified that appellant came to the place where she and Mary Mahar were in the water. They asked appellant for a match to light cigarettes. Appellant told Mary to come get one. When she came out of the water to get the match appellant took hold of her arm and then asked her to have sexual intercourse with him. Mary said, "I am sorry I came," and ran into the woods. Appellant pursued her. Dorothy further testified that she heard some one scream in the woods, and that appellant returned alone after an absence of thirty or forty minutes, and she never saw Mary again alive. Dorothy also testified that appellant presented a disheveled appearance, his shirt was torn, "his pants messed up," and there was grass in his hair. Dorothy dried her clothes and dressed. When she saw appellant at the clubhouse he inquired where Mary was. Appellant said to her that if she told anything about what she had seen and heard he would kill her. Appellant told her he went into the woods with Mary to fill a date with her, and told her not to tell his brother Mont, who was Mary's escort and who had been going with her for some months.

Search for Mary began when her absence was discovered. It was continued until dark without finding her. Dorothy asked appellant to take her home. He declined to do so, saying that he would continue to search until he found Mary, and he remained there all night.

Mary was last seen alive some time Thursday afternoon. Her body was not found until the following Saturday morning. It was discovered about a quarter of a mile from the place where she was last seen in the water. Her head was down in the water hanging against a large rock, with her back and hips projecting upwards out of the water. The body was recovered and an inquest held by the coroner and an autopsy performed by two physicians, who testified at the trial. The doctors testified that they found no water in Mary's lungs, but they also testified that the absence of water in the lungs was not uncommon in cases of death by drowning, being true, according to the medical authorities, in about forty-eight per cent. of such cases. They found a fracture of the third vertebra, which might have caused death, but would not necessarily have done so, unless the spinal cord had been injured. They could not tell whether the fracture occurred before or after death. They did not testify whether the spinal cord had been injured or not, but the injury to the vertebra could have occurred as well after death as before.

Appellant did not testify at the trial from which this appeal comes, but he did testify at length at the inquest and his testimony at that trial, which had been stenographically reported, was read at his trial in the circuit court. He admitted in his testimony before the coroner's jury that he had sexual intercourse with Mary in the woods, but said he had done so with her consent, and they had made an appointment for another meeting later in the week. His testimony at the inquest was to the effect that when he and Mary returned from the woods she re-entered the water, and he saw her body bobbing up and down in the water. That she must have gone under the water some six or seven times, but he thought nothing of it, as he supposed she was playing. Two other members of the swimming party saw Mary in the water and reached the same conclusion.

Many witnesses testified, and the record is voluminous, and there are many conflicts and contradictions which presented questions of fact for the jury's review and decision.

It was the theory of the defense that Mary had drowned, and that her body had floated for a quarter of a mile and had lodged against the rocks, where her neck was broken by the pressure of the water, and that appellant's good faith and innocence was shown by the persistence with which he continued his search for the body during the night following Mary's disappearance.

It is the theory of the state that appellant had sexual intercourse with Mary forcibly and against her will, and later murdered her to conceal his crime and remained near the creek to throw the body in the water when he might do so unobserved.

The testimony of Dorothy Karps, if credited, as the jury had the right to do, in conjunction with other facts and circumstances detailed in evidence, is sufficient to sustain the State's theory, in which event appellant would, of course, have been guilty of murder in the first degree. On the other hand, the testimony as to her being in the water after the meeting in the woods, if credited by the jury, would have required his acquittal. The verdict returned does not comport with either theory, as is frequently the case in jury trials. In such cases we may only determine, on the appeal to this court, whether the testimony is legally sufficient to support the verdict which was returned, and as we think it was the judgment must be affirmed so far as the sufficiency of the testimony is concerned. Fulbright v. Phipps, 176 Ark. 356, 3 S.W.2d 49; Griffin Grocery Co. v. Thaxton, 178 Ark. 736, 11 S.W.2d 473; Elm Springs State Bank v. Bradley, 179 Ark. 437, 16 S.W.2d 585; McGuire v. Robertson, 182 Ark. 759, 32 S.W.2d 624; Powers v. Wood Parts Corporation, 184 Ark. 1032, 44 S.W.2d 324; Hanson v. Louisiana Oil Refining Corporation, 186 Ark. 331, 53 S.W.2d 430; Dixon v. State, 191 Ark. 526, 87 S.W.2d 17.

The mother of the deceased was the first witness called for the state. She was permitted to introduce, identify and offer in evidence a photograph of her daughter, and that action is assigned as error. The only useful purpose the picture could have served would have been to identify the deceased, and that question was not in issue, and the picture was, therefore, without probative value. It is inconceivable, however, that this unnecessary evidence could have been prejudicial.

After deceased's mother had testified she was permitted, over appellant's objection, to remain in the courtroom, although the rule had been ordered as to all other witnesses. She was not again called as a witness. The statute provides that "If either party require it, the judge may exclude from the courtroom any witness of the adverse party not at the time under examination so that he may not hear the testimony of the other witness." Section 4191, Crawford & Moses' Digest. But it has often been held that the enforcement of this rule is a matter within the sound discretion of the court, and there appears to have been no abuse of this discretion. Mikel v. State, 182 Ark. 924, 33 S.W.2d 397.

Some months after the tragedy and a few days before the trial in the circuit court two witnesses, at the instance of the prosecuting attorney, made tests to determine the velocity of the water in the lake, or that portion of the creek where Mary had been bathing, and where her body was found. This test was made by throwing three small logs weighing 60 to 65 pounds in the water at different places and measuring eleven hours later the distance they had floated. The witnesses who made the tests stated that one log or chunk, as it was also called, was 150 feet towards the north bank down stream from where it was thrown into the water, the second one about 190 to 200 feet across from the south bank. The other was about 25 feet below that one. This was 235 feet down stream and some distance from the bank.

This testimony was objected to upon the ground that the conditions of the test were not shown...