Walker v. State
| Decision Date | 16 March 1965 |
| Docket Number | No. 5116,5116 |
| Citation | 239 Ark. 172,388 S.W.2d 13 |
| Parties | James Dean WALKER, Appellant, v. STATE of Arkansas, Appellee. |
| Court | Arkansas Supreme Court |
Harold L. Hall and Howell, Price & Worsham, Little Rock, for appellant.
Bruce Bennett, Atty. Gen., by John P. Gill, Asst. Atty. Gen., Little Rock, for appellee.
Appellant, James Dean Walker, was charged in the Pulaski Circuit Court with the crime of First Degree Murder. It is alleged that on April 16, 1963, he murdered Jerral Vaughan by shooting him with a pistol. Appellant entered pleas of not guilty and not guilty by reason of insanity. He was committed to the Arkansas State Hospital for Nervous Diseases for observation. On May 5, 1964, appellant was tried and convicted of First Degree Murder as charged in the information. The trial court, on May 18, 1964, sentenced him to death by electrocution. He has appealed to this court.
On the night of April 15, 1963, the appellant and his companion, Russell Freeman Kumpe, together with two young women, Linda Ford and Mary Louise Roberts, visited several Little Rock night clubs. Walker and Kumpe were apparently involved in some trouble in one of the downtown clubs. Several hours later the men checked out of their motel, and accompanied by only Linda Ford, drove their automobile to North Little Rock and out on the England Highway (Arkansas Highway No. 130). They were followed by Miss Roberts in a taxicab that she had hired since she had been excluded from the group. Miss Ford contended that she had been forced at gunpoint to accompany the men.
It is undisputed that Kumpe was driving; that Miss Ford was sitting on the front seat next to him, and that Walker was on the same seat to her right and next to the door. The car was traveling at a reasonable speed when it was stopped by a police officer from North Little Rock, Gene Barrentine. The deceased, Jarrel Vaughan, in a separate police car, assisted in stopping Kumpe's vehicle. Both Barrentine and Vaughan, and other police officers who came to this location within a matter of minutes of each other's arrival had received word by radio to intercept and stop a white Oldsmobile. The Oldsmobile promptly pulled over on the shoulder of the highway and stopped when Kumpe saw the red light on the police car.
Kumpe got out of his car by order of Officer Barrentine, and came to the rear of the Oldsmobile; he leaned against Barrentine's police car while the officer searched him. As this was being done, Officer Vaughan approached the passenger side of the Oldsmobile from the rear; as he reached the car door, gunfire broke out. Kumpe ran off to the side of the highway. Officer Barrentine fired twice at Kumpe and fired four rounds into the Oldsmobile. He then got on the radio in Vaughan's car and asked for help because he knew Vaughan had been shot. As he reloaded his pistol, he saw Walker's head come up again and he fired one more shot through the rear view glass of the Oldsmobile at Walker. Walker had also shot at Barrentine through the same window.
More police arrived; they went to the Oldsmobile and found Walker lying outside that car on the passenger side, and Officer Vaughan lying fatally wounded two feet from him. Walker was in a semi-conscious state, having been wounded. He had a .38 S & W SNUB nose revolver in his hand that had not been fired. When the officers rolled Walker over they found he was lying on a .38 Smith & Wesson 4-inch barrel pistol that was empty. A third gun (4-inch barrel .38 colt revolver) was found on the front floor board under the driver's (Kumpe's) seat. Vaughan's gun was lying there on the ground. The three guns and empty shells that presumably belonged to Walker and Kumpe were sent to State Police Headquarters for paraffin and ballistic tests.
A surgeon removed the bullet from the deceased Vaughan, which was identified as having been fired by the .38 S & W 4-inch barrel pistol, which was found beneath Walker's body. This bullet was directly overlying Vaughan's heart. Death was almost immediately after the bullet entered Vaughan's body.
Walker had been shot in the right upper arm, right chest, right lower adbomen, and upper right leg; there were five bullet wounds in him. No testimony was offered by the State of the results of ballistic tests on the bullets removed from Walker's body.
The defendant did not testify. Linda Ford, who was sitting in the front seat with Walker, said that he had a pistol in his hand and started firing when the door was opened. She did not know who opened the door, but the door was not open when Officer Vaughan walked up. Thomas Gerald Short, the cab driver, who was also present with the police, testified that Vaughan had bent over looking into the Oldsmobile window and said a few words. Short also stated that when the door came open, Vaughan was doing a little dance-like jig, trying to get away from the car and backed up on the side of the bank; that there was a shot and Vaughan fell on his chest; that he heard several shots; that he did not see any shots fired. He said that Vaughan had just got his gun out when he was shot.
At the conclusion of all testimony, appellant moved for the court to reduce the charge from first degree murder to that of second degree, contending that the State had not proved premeditation, deliberation and intent. The motion was overruled. The trial court gave instructions defining murder as follows:
'All murder which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of wilful, deliberate, malicious and premeditated killing, or which shall be committed in the perpetration of, or in the attempt to perpetrate, arson, rape, robbery, burglary or larceny, shall be deemed murder in the first degree.
'All other murder shall be deemed murder in the second degree.'
The court then gave the State's Requested Instruction No. 2, as follows:
'I will now give you the law fefining the charge in this information.
'Murder is the unlawful killing of a human being, in the peace of the State, with malice aforethought, either expressed or implied.
'The manner of the killing is not material, further than it may show the disposition of mind, or the intent with which the act was committed.
'Malice, or expressed malice, is the deliberate intention of mind unlawfully to take away the life of a human being, which is manifested by external circumstances capable of proof.
'Malice shall be implied when no considerable provocation appears, or when all the circumstances of the killing manifests an abandoned and wicked disposition.
Then the court, over appellant's objection, gave State's Requested Instruction No. 9, as follows:
'The punishment for murder in the first degree is death or life imprisonment.
'If you find the defendant, James Dean Walker, guilty of murder in the first degree and you wish to fix his punishment at death in the electric chair, your verdict will be: 'We, the jury, find the defendant guilty of murder in the first degree as charged in the Information.' On the other hand, if you wish to fix his punishment at life imprisonment, you will say: 'We, the jury, find the defendant guilty of murder in the first degree and fix his punishment at life imprisonment in the State Penitentiary.'
'If you find the defendant not guilty by reason of insanity, your verdict should be: 'We, the jury, find the defendant not guilty by reason of insanity.'
'If you find the defendant not guilty, or if you have a reasonable doubt of his guilt, then you will say: 'We, the jury, find the defendant not guilty.'
'In either event, you will sign the verdict by one of your members as Foreman, and the verdict must be unanimous.'
The defendant objected specifically to the action of the court in giving State's Requested Instruction No. 9, as follows:
Subsequently, the court refused to give Defendant's Instruction No. 7, which would have allowed the jury to decide the degree of murder. Defendant's Requested Instruction No. 7 is as follows:
In giving the forms of verdicts to the jury, the court said:
'Gentlemen of the jury, I will now give you the forms of your verdict. If you believe the defendant is guilty and you wish to invoke the death penalty, you will say: 'We, the jury, find the defendant guilty of murder in the first degree, as charged in the information.' That carries the death penalty with it automatically.
'on the other hand, if you wish to sentence the defendant to life imprisonment in the penitentiary, which is your choice, you will say, 'We, the jury, find the defendant...
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