Upton v. State, 5820
| Decision Date | 23 July 1973 |
| Docket Number | No. 5820,5820 |
| Citation | 497 S.W.2d 696,254 Ark. 664 |
| Parties | Harold Sherman UPTON, Appellant, v. STATE of Arkansas, Appellee. |
| Court | Arkansas Supreme Court |
Camp & Thornton, El Dorado, for appellant.
Jim Guy Tucker, Atty. Gen. by O. H. Hargraves, Asst. Atty. Gen., Little Rock, for appellee.
Harold Sherman Upton, aged 28, was found guilty of murder in the first degree, committed in the perpetration of robbery, and was sentenced to imprisonment for life. His appointed counsel argue 25 points for reversal, a number of which are overlapping.
The crime occurred on December 27, 1971. Upton and his wife, according to Upton's confession, picked up the decedent, Woodrow Defee, on a highway in Union county. Within a short time Upton stopped the car and attempted to rob Defee, at gunpoint. When Defee grabbed the barrel of the gun Upton shot him twice, first in the shoulder and then in the head. The Uptons then drove on, leaving Defee's body near the highway. The police, by tracing a long-distance call that Upton made at a truck stop in Village, Arkansas, were able to identify Upton and to bring about his arrest in Louisiana.
The Uptons were arrested after having fled from the home of Upton's father, Wade Upton, in Bossier parish. Two Louisiana officers then went to Wade Upton's house, told him that his son had been arrested upon a murder charge, and explained that they were looking for the weapon used in the crime. According to the officers, Mr. Upton co-operated with them, bringing out a 12-gauge shotgun and a .410-guage shotgun. After the officers left they learned by radio that the weapon was a 16-gauge shotgun. They returned to the Upton home, where Mr. Upton again co-operated by going to a barn and finding a green blanket, in which the guns proved to be wrapped up.
A substantial part of the appellant's brief is devoted to the contention, under several headings, that the weapons were obtained by means of an illegal search. After an extensive hearing upon a motion to suppress the evidence, the trial judge sustained the admissibility of the guns, finding that there had actually been no search. That ruling was correct. Upton's father was in possession and control of the house. According to the officers' testimony, he voluntarily produced and relinquished the weapons. The State's proof is even stronger than it was in an analogous case, where the mother of the accused freely allowed officers to have access to her house in their search for incriminating clothing. Maxwell v. Stephens, 348 F.2d 325 (8th Cir. 1965). There the court explained its conclusion in these words: 'The situation strikes us as being no different, factually, than if Mrs. Maxwell herself had brought the coat, it being properly in her possession, to the authorities.' In the case at bar the trial judge was warranted in finding that just such a voluntary surrender of the shotguns took place. We perceive no invasion whatever of the appellant's rights.
At the trial counsel interposed the defense of insanity and evidently argued to the jury that at the time of the crime Upton's mind was so affected by the use of drugs that he could not form the intent to commit robbery. Instructions explaining both those defenses to the jury were given.
Dr. A. C. Smith, a psychiatrist, was called as a witness by the defendant. He testified that Upton suffered from the mildest of the five classifications of schizophrenia and might be unable to control himself under stress. On cross examination Dr. Smith was permitted to testify that he had read the report of another...
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Grigsby v. State
...purpose of considering appellant's argument (which was approached but not actually reached in Upton v. State, supra and Upton v. State, 254 Ark. 664, 497 S.W.2d 696) there is no substantial difference in the capital felony murder statute under which he was prosecuted, Act 438 of 1973 (Ark.S......
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Upton v. State
...of Woodrow DeFee alleged to have been committed in the perpetration of a robbery, after our reversal of his conviction in Upton v. State, 254 Ark. 664, 497 S.W.2d 696. The points for reversal here I. The Trial Court erred in refusing to grant defendant's motion to quash and dismiss relative......
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Williams v. State
...U. S., supra. To begin with, we presume that any error is prejudicial, unless we can say with confidence that it is not. Upton v. State, 254 Ark. 664, 497 S.W.2d 696. One reason for placing such a heavy burden upon the state is the necessity for preserving the sanctity of the jury deliberat......
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Smith v. State
...specifically point out that the state did not call Hale as a witness. In this respect this case differs significantly from Upton v. State, 254 Ark. 664, 497 S.W.2d 696, where no complaint was made, on appeal, that two of the four persons present at the interrogation of the accused were not ......