Umbaugh v. State, 5563

• Citation: 250 Ark. 50,463 S.W.2d 634
• Decision Date: 01 March 1971
• Docket Number: No. 5563,5563
• Parties: Cleveland UMBAUGH, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 634

463 S.W.2d 634

250 Ark. 50

Cleveland UMBAUGH, Appellant, v. STATE of Arkansas, Appellee.

No. 5563.

Supreme Court of Arkansas.

March 1, 1971.

Daily, West, Core & Coffman, Ft. Smith, for appellant.

Ray Thornton, Atty. Gen., Mike Wilson, Asst. Atty. Gen., Little Rock, for appellee.

JONES, Justice.

By information filed by the prosecuting attorney in the Sebastian County Circuit Court, Cleveland Donald Umbaugh was charged with the crime of kidnapping, in that he did unlawfully, feloniously and forcibly take Joselyn Howard and carry her, against her will, from one place to another place in this state for the purpose of committing a felony. Umbaugh was found guilty at his trial before a Sebastian County jury and was sentenced by the trial judge to 30 years in the Arkansas Penitentiary. Umbaugh has appealed to this court and relies on the following point for reversal:

'The testimony of Mrs. Birtie Smith involved solely a prior bad act allegedly committed by Appellant. This testimony was wholly irrelevant to the charge for which Appellant was on trial, was highly inflammable and its admission resulted in prejudicial error.'

The evidence is in conflict as to the felony intended, but there is little question that one was committed. On the afternoon of March 25, 1970, the prosecuting witness, Joselyn Howard, a 17 year old Negro high school girl (small for her age), was walking along the sidewalk on her way home from school. The appellant, a 22 year old married white man, and his 19 year old white companion, Darrell Wayne Hurley, were sitting in a parked automobile owned by the appellant as Miss Howard passed by. They stopped Miss Howard, took her into the automobile and drove to a secluded area known as 'Wildcat Mountain' near the Arkansas River and there they both, according to their own testimony, had sexual relations with her.

Miss Howard, or Joselyn, as she will hereafter be called, testified that as she passed by alley where the automobile was stopped, Hurley got into the back seat as Umbaugh seized and gagged her; forced her into the front seat of the two-door automobile and locked the door. She testified that he then drove to near the Arkansas River where he forced her to disrobe and where he raped her in the front seat of the automobile. She testified that she lost consciousness during the assault by Umbaugh and does not know whether Hurley also assaulted her or not; but that when she regained consciousness, Umbaugh had placed a 'rag' around her face and was pulling her from the automobile. She says that Umbaugh then forced her down the hill toward the Arkansas River and said that he was going to throw her into the river. She testified when Umbaugh ordered her to wade into the water, she kicked her shoes off and started running. She says that she ran through some water and fell down and that while she was on her knees in the water, Umbaugh picked up a rock and threw it down near her and directed her on toward the river. She says that she again got away from Umbaugh and Hurley and that they both ran after her and tried to catch her. She says that while they were chasing her they were also throwing rocks at her, but that she finally eluded them and called the officers from the home of Margaret Cook, who lived in the first house she came to.

Hurley testified for the state. He testified that he and Umbaugh had been drinking beer and that Umbaugh asked Joselyn if she wanted a ride; that when she declined and stated that she only lived a short distance from where they were, Umbaugh got out of the car and ordered Joselyn into the automobile. He testified that Joselyn got into the automobile; that Umbaugh locked the car door and drove to 'Wildcat Mountain.' The rest of Hurley's testimony corroborated that of Joselyn. He testified that he also had sexual relations with Joselyn after Umbaugh did. He testified that Umbaugh then blindfolded Joselyn and led her away from the car and told her he was going to kill her. He testified that Umbaugh then told Joselyn that he was going to throw her into the river and drown her, but that she got away by outrunning Umbaugh.

Umbaugh's statement given to the police was read in evidence. He admitted that he picked Joselyn up in his automobile; that he and Hurley then took her to 'Wildcat Mountain' where they both had sexual relations with her. He stated that she willingly entered the automobile and went with them upon Hurley's invitation, and that she affirmatively consented to sexual relations.

Birtie Smith testified, over the appellant's objections, that her brother married Umbaugh's sister and that while visiting her brother in December of 1968, Umbaugh offered to drive her and her three year old child to their home at Arkoma, Oklahoma, in Umbaugh's automobile. She testified that instead of driving her home, Umbaugh drove to 'Wildcat Mountain' near the Arkansas River and there he forced her to have sexual relations with him by threatening to kill the child. She testified that Umbaugh actually did choke the child until she finally submitted to him.

Umbaugh testified in his own defense. The substance of his testimony was that Joselyn, as well as Mrs. Smith, willingly accompanied him to 'Wildcat Mountain' and willingly engaged in sexual relations with him. He admits blindfolding Joselyn and telling her that since they had no further use for her, he was going to throw her into the Arkansas River and drown her. He admits throwing rocks at her and trying to overtake her when she finally escaped. But, he testified that this was all in fun just to torment, tease and scare Joselyn, and that he intended no harm to her at all. He did admit, however, that he was no longer amused by his conduct.

The appellant has cited 15 cases in support of his contention that the trial court committed reversible error in admitting the testimony of Mrs. Smith. We have examined all the cases cited by the appellant and they all turn on the nature and facts of the case being tried, and the purpose for which the evidence of prior acts were offered. We will not attempt here to analyze and distinguish all the cases cited because the various categories attending the most of them were throughly discussed in the two latest ones; Moore et al., v. State, 227 Ark. 544, 299 S.W.2d 838; Alford v. State, 223 Ark. 330, 266 S.W.2d 804.

In Alford, as well as in Moore, the extraneous evidence was offered to show intent in connection with the crime charged, but intent was not an actual element in either case. In Aford the charge was rape, the conviction was for rape, and the penalty was death. There was no question as to identity of the defendant, there was no question as to his intent, and there was no question that his intent was carried out under the persuasive blade of a hunting knife. The defendant did not testify. The facts in Alford bring that case squarely within the rule stated in one paragraph of that opinion, as follows:

'No one doubts the fundamental rule of exclusion, which forbids the prosecution from proving the commission of one crime by proof of the commission of another. The State is not permitted to adduce evidence of other offenses for the purpose of persuading the jury that the accused is a criminal and is therefore likely to be guilty of the charge under investigation. In short, proof of other crimes is never admitted when its only relevancy is to show that the prisoner is a man of bad character, addicted to crime.'

In another paragraph in Alford we also said:

'The rule is designed to protect the innocent, but it is often invoked as a basis for excluding any evidence that tends to show the commission of another offense. We have repeatedly rejected unfounded appeals to the protection of the basic rule of exclusion. If other conduct on the part of the accused is independently relevant to the main issue--relevant in the sense of tending to prove some material point rather than merely to prove that the defendant is a criminal--then evidence of that conduct may be admissible, with a proper cautionary instruction by the court. 'While the principle is usually spoken of as being an exception to the general rule, yet, as a matter of fact, it is not an exception; for it is not proof of other crimes as crimes, but merely evidence of other acts which are from their nature competent as showing knowledge, intent or design, although they may be crimes, which is admitted. In other words, the fact that evidence shows that the defendant was guilty of another crime does not prevent it being admissible when otherwise it would be competent on the issue under trial.' State v. DuLaney, 87 Ark. 17, 112 S.W.2d 158, 160.'

In analyzing the various categories where proof of other crimes is offered in evidence, such as to show motive, to rebut the plea of an alibi, etc.; as to the issue of intent in Alford, we said:

'The issue of intent is theoretically present in every criminal case, and for that reason it is here that we are most apt to overlook the basic requirement of independent relevancy. * * * What has happened is that the emphasis has shifted from evidence relevant to prove intent to evidence offered for the purpose of proving intent, by showing that the defendant is a bad man. If this transfer of emphasis...