{ "id": 1464613, "name": "Cooper v. State", "name_abbreviation": "Cooper v. State", "decision_date": "1949-10-03", "docket_number": "4571", "first_page": "732", "last_page": "753", "citations": [ { "type": "official", "cite": "215 Ark. 732" }, { "type": "parallel", "cite": "223 S.W.2d 507" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "97 S. W. 2d 902", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "193 Ark. 21", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1411126 ], "opinion_index": 0, "case_paths": [ "/ark/193/0021-01" ] }, { "cite": "215 S. W. 615", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "140 Ark. 254", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1594398 ], "opinion_index": 0, "case_paths": [ "/ark/140/0254-01" ] }, { "cite": "216 S. W. 33", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "140 Ark. 553", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1594449 ], "opinion_index": 0, "case_paths": [ "/ark/140/0553-01" ] }, { "cite": "169 S. W. 786", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "114 Ark. 112", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1536317 ], "opinion_index": 0, "case_paths": [ "/ark/114/0112-01" ] }, { "cite": "61 N. E. 286", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1904, "opinion_index": 0 }, { "cite": "168 N. Y. 264", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 2299526 ], "year": 1904, "opinion_index": 0, "case_paths": [ "/ny/168/0264-01" ] }, { "cite": "208 Ark. 28", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1478693 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/208/0028-01" ] }, { "cite": "197 Ark. 600", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8722323 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/197/0600-01" ] }, { "cite": "161 S. W. 195", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "110 Ark. 251", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1337084 ], "opinion_index": 0, "case_paths": [ "/ark/110/0251-01" ] }, { "cite": "240 S. W. 25", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "152 Ark. 597", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1364116 ], "opinion_index": 0, "case_paths": [ "/ark/152/0597-01" ] }, { "cite": "26 S. W. 377", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "59 Ark. 50", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1327706 ], "opinion_index": 0, "case_paths": [ "/ark/59/0050-01" ] }, { "cite": "65 S. W. 103", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 1 }, { "cite": "69 Ark. 599", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8725460 ], "opinion_index": 1, "case_paths": [ "/ark/69/0599-01" ] } ], "analysis": { "cardinality": 1815, "char_count": 43522, "ocr_confidence": 0.517, "pagerank": { "raw": 9.777829226612165e-08, "percentile": 0.5317727018061671 }, "sha256": "9365841682483c827a3d57560e77bcdc918eb168e847af9e5a2fcae864e0fae2", "simhash": "1:c028d4caab0c0a7e", "word_count": 7528 }, "last_updated": "2023-07-14T14:42:13.131733+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Mr. Justice George Rose Smith dissents." ], "parties": [ "Cooper v. State." ], "opinions": [ { "text": "Griffin Smith, Chief Justice.\nLois Cooper was found dead near Gravette the evening of December 23, 1948. Proximity of an old truck near the city garbage dump where the body was found, the peculiar nature of injuries sustained, contradictory statements by Mrs. Cooper\u2019s husband, and unexplained conduct, led to Cooper\u2019s arrest on information filed January 7th. He was convicted of first degree murder and given a life sentence.\nThe motion for a new trial lists twenty-three alleged errors, some of which are not argued.\nMatters emphasized by the appellant, upon which he relies for reversal, are listed in the first marginal note.\nFirst \u2014 Sufficiency of the Evidence. \u2014 The first public knowledge that Cooper\u2019s truck had been wrecked came when three young men driving south from Sulphur Springs to Gravette heard calls for help a short distance from the city garbage dump. They stopped and saw Cooper prone on the roadside as though in distress. He explained that the pick-up truck he and Mrs. Cooper were using in carting trash from their home had been wrecked; that it had \u201cgone over the bank,\u201d or something to that effect, and that Mrs. Cooper was at the bottom of the ravine dead or in a dying condition. When help arrived it was found that the truck had \u201cnosed over\u201d the embankment and had come to a stop at a sharp incline with the front end embedded in the debris and the rear near enough for one standing on the roadside to reach the bumper with his foot. Waste matter in and against which the car was lodged consisted of discarded tin cans, charred remnants, broken glass, wire, etc. The car differential was so close to the ground that a person could not conveniently see under, while at the front there was no space between car and debris. Mrs. Cooper\u2019s body was 130 feet down the ravine. One witness testified that she was lying on her right side, with the left foot crossed over the right one, resting on an old automobile tire. This witness observed a cut or wound over the right eye. It had turned black, and was not bleeding.\nAppellant was taken to Hr. Wilford Wilson\u2019s office. While being examined for injuries, he stated that he and Mrs. Cooper had gone to the dump to dispose of trash. With completion of this task appellant got back into the truck as Mrs. Cooper started the engine. The motor was \u201cracing\u201d violently. Appellant said he at first thought Mrs. Cooper was merely joking and that the accelerator had been purposely depressed, but when she exclaimed, \u201cGeorge, do something,\u201d he realized that his wife was alarmed. Just then the machine lunged forward. This witness was not certain that Cooper said he leaned forward for the purpose of turning- off the ignition. But, in any event, the statement was made that before anything could be done the car was in motion, and \u2018 \u2018 all of a sudden went over. \u2019 \u2019 Cooper claimed to have been hurled through the windshield, while his wife was thrown to the left through an open door. Blood was found on the right-hand \u201cjump seat,\u201d and there was blood on the \u201csill\u201d where the right-hand door \u201cfastens up against it.\u201d A subsequent examination of the opening through which Mrs. Cooper was said to have been hurled disclosed that the door functioned imperfectly and would only open half way. A six-inch maple limb, perhaps ten feet long, was tight against the left fender, one end extending into the rubbish pile. The witness who drove Cooper\u2019s car to Bentonville December 24th testified that the foot-feed functioned normally for an old car and that neither the throttle nor steering mechanism was out of order, and headlights were in good condition.\nA heavy steel Firestone Company drum used for shipping anti-freeze compound was in the rear of the truck. Its capacity is 54 gallons. A nine-inch hard rubber detachable extension of the old-fashioned gear-shift lever, with a heavy two-inch knob, was described by one state witness as \u201ca convertible gearshift knob and blackjack.\u201d\nDeputy Sheriff John Black testified that tire-marks left by Cooper\u2019s truck disclosed movements on the evening of December 23d immediately before the car went over the embankment. According- to this witness it was certain that from a point touching some cut-off branches of a plum thicket, the machine proceeded in a southeasterly direction, veering slightly to the left, along an old graveled highway. Skidmarks indicated that the truck had been suddenly started, that it proceeded a distance of 35 or 40 feet, then turned sharply to the left and dropped into the dump, coming to rest when the front end and wheels were impeded by the soft material beneath. Disturbed condition of the gravel for a distance of eight or ten feet convinced the witness that the clutch was suddenly engaged after the engine had been \u201craced\u201d \u2014 supplying, inferentially, a maximum of initial power.'\nThe car windshield had been partially broken by impact from within. Perhaps half of the shatter-proof glass was out and a few pieces were missing Avhen Black gave his testimony. Physical indications were that the break was caused from a blow struck approximately two inches from the bottom of the glass, on the right side. The opening was not, in Black\u2019s opinion, sufficient for a man\u2019s head to go through.\nContradictory Statements. \u2014 W. F. Burns, County Coroner, testified that on the evening of December 24th he and Mrs. Burns went to the Veterans Hospital to procure Cooper\u2019s permission for having an autopsy. While discussing matters connected with the death, Cooper said that when they drove to the dump he backed the truck to a point selected for unloading. He then got .out of the car and Mrs. Cooper backed it about three feet farther. After disposing of the load Cooper took an old piece of canvas and cleaned the truck bed, then told his wife to \u201cpull up.\u201d At the same time he put an oil drum in the car, then told Lois to pull up again. The accelerator stuck, causing the machine \u201cto race around rather fast. \u2019 \u2019 Appellant says he ran and caught the car as it reached the dump, \u201cjumping into it just as it went over.\u201d According to this explanation, the truck went doAvn the hill about 75 feet and stopped suddenly, throwing Cooper through the windshield up to his shoulders, while Lois fell on the driver\u2019s side and went tinder a front wheel. It ran over her neck, and she \u201cgurgled\u201d and didn\u2019t speak again.\nThese representations by Cooper were testified to by Burns and his wife. The former said that he asked Cooper if Lois was insured, and received a negative reply. Burns says he then told Cooper that Clifford Fry, an agent at Gravette, had stated there was a $5,000 policy on Mrs. Cooper\u2019s life, with double indemnity in the event of accident. Cooper\u2019s reply was: \u201cYes, I remem- . ber that now, but it is a savings account policy. \u2019 \u2019 Cooper then said to Burns, \u201cIf you will sign the 'death certificate-and get me out of this mess, it will be worth half of the five thousand to you.\u201d The witness said his understanding of the proposal was that the offer related to \u25a0 half of the double indemnity, or $5,000. Mrs. Burns testified that she talked with Cooper while her husband was out of the room typing a form authorizing the autopsy, and that Cooper intimated to her that he would pay $10,000 for the assistance inferentially suggested.\nMotive Alleged by State. \u2014 Other than a small contract covering hospitalization, Mrs. Cooper was insured for $8,500 under three policies, each paying double the principal sum if death should be accidental. All were procured in 1948, the oldest July 20, the next October 21, and the last December 6. If realized upon, appellant as beneficiary would receive $17,000.\nThere was evidence from which the jury could have found that the Coopers were not domestically harmonious, although some witnesses thought they were. At one time the couple had accumulated approximately $6,000, most of it put aside by Mrs. Cooper while her husband was with the armed forces. This, however, had been used, or virtually spent. Cooper operated a radio and electrical repair shop, maintained in a part of the residence he and his wife occupied. They had been married 19 years, and were childless.\nSupporting the State\u2019s contention that Cooper had grown tired of his wife and had formed other attachments, his connection with a young girl of good family and high scholastic attainment was shown. The girl was eighteen years of age when she testified, but was about seventeen when she met appellant, who soon made \u201cimproper advances\u201d which were first repulsed; but, according to the testimony of this witness, Cooper told her \u201cwe might later be married.\u201d . She was wholly inexperienced in sexual matters, and was so impressed by the attentions paid her and by Cooper\u2019s personality and seeming devotion that aloofness gave -way to mutual desires, and for several months prior to the tragedy there were no inhibitions.\nTheir first experience consummating intercourse occurred in the basement of Cooper\u2019s home under his radio shop. Mrs. Cooper had gone to Joplin. The girl was persuaded by her lover to believe that Mrs. Cooper \u2014represented by her husband to be without sexual reactions \u2014 did not object to the character of conduct she and George were engaging in, although there is no suggestion that Mrs. Cooper had specific information in respect of person or persons her husband was turning to. The young witness related a conversation with Cooper in which he expressed a belief that Lois would not live long \u2014 possibly not more than two years, that she \u201cmight have a stroke,\u201d and in that case, said the girl, \u201cWe were to he married.\u201d Cooper also said that a child conceived as a consequence of his marriage to Lois \u201chad been taken care of\u201d because they were too young to rear it. The witness understood from what Cooper told her that a Doctor R. \u2014 had performed an abortion.\nCooper maintained a houseboat on Grand Lake in nearby Oklahoma. It was frequently used when he and his wife, the young witness and her mother and father (and sometimes a brother), went for outings. On such occasions Cooper would take individual members of the group for pleasure trips, being particular, at times, to arrange a private trip for the object of his immediate affections. The boat was provided with conveniences for the entertainment each looked forward to. So was a truck, to which and in which access was occasionally had. The trips, whether by boat or truck, were usually made at night. Some time in 1948 Cooper told the witness she might be wearing a ring before school was out. Respecting consequences of the illicit relations, the witness testified that on at least one occasion she expressed apprehension about being pregnant, or fear that pregnancy would result, but was reassured when Cooper told her \u2018 it just wouldn\u2019t happen \u201d; he knew how to take care of that. Finally, the witness said that Cooper'was the first person who had ever made love to her. Question: \u201cAnd he professed to love you, and that he was going to marry you?\u201d Answer, \u201cYes.\u201d\nCause of Death \u2014 Circumstantial Evidence. \u2014 While Cooper was in an ambulance, preparatory to entering Dr. Wilford Wilson\u2019s office the night Lois was killed, a superficial examination was made to determine whether appellant had sustained serious injuries. The Doctor, (over objections that any statements made by Cooper while he was being treated were privileged) testified that Cooper complained of intense pains in the right arm and shoulder. There were bloodstains on Cooper\u2019s face, but no cuts, abrasions, or lacerations on either hand. The Doctor \u201cimagined\u201d the facial stains were from a scratch, but because of Cooper\u2019s eligibility to the Veterans Hospital, Dr. Wilson called that institution by telephone and told the physician in charge that a \u201cbadly injured man\u201d was being sent over.\nIn describing to Dr. Wilson circumstances attending the so-called \u201caccident,\u201d Cooper said that while at the dump he told his wife to get in the car and start it. When she complied with this direction, the car began \u201crunning around.\u201d Lois called for help, and Cooper \u201chopped in and turned off the switch, and just as this was done the machine went over the dump and a barrel in the car hit [me] in the back and knocked [me] through the windshield.\u201d\nDr. Stewart Wilson, connected with the Medical Center at Eogers, made autopsies on Mrs. Cooper\u2019s body at Pyeatte\u2019s Funeral Home in Gravette. There was a deep, ragged laceration on the back of the head, but no blood, in the occipital region. Several minor tears extended out from it, particularly upward. A small amount of blood, tinged with embalming fluid, was found in the hair. Bits of dry leaves and dirt were mixed with the hair, especially in the back. Numerous minor bruises and scratches were \u201cscattered\u201d over the entire body, the more severe being on the anterior surface of the right thigh and about the right eye and mouth. Some dried blood was found in each nostril. In examining the back of the head Dr. Wilson felt \u201csomething,\u201d and as he expressed it, \u201cI didn\u2019t quite know what it was, but when I pulled it out it proved to be a large valve stem, caught on the hair, and more or less tangled with it.\u201d The'leaves found in Mrs. Cooper\u2019s hair were not stained with blood. \u25a0 Within the chest there were no indications of injury \u2014 no blood, nothing to suggest that the body had been crushed. A bruise under the skin caused by force was the result of [subcutaneous] bleeding. No injury to the abdominal walls had been sustained.\nIn examining the scalp a considerable quantity of clotted blood was found beneath it, without evidence of external bleeding. A small puncture wound through the scalp on the right side of the head was observed, extending inward. \u201cYou see,\u201d said Dr. Wilson, \u201cthe skull bone is in two layers, with soft spongy [matter] between. This punched-out hole went only through the outer table, producing a slight depression or fracture of the inner table. It caused a hemorrhage of the brain approximately two inches in diameter, although the brain structure proper was not lacerated,\u201d Assuming the injury to have been caused by the valve stem, a test was made to determine whether the wound corresponded with physical proportions of the metal. By rotating the stem in a way demonstrated to the jury, perfect contact was made.\nTwo days later Dr. Wilson reexamined the body, with particular reference to neck, lungs, larynx, trachea, thyroid glands, esophagus, etc., and did not find any evir dence of injury; nor were vertebrae or any other parts of the body injured in a manner to have caused death.\nIn summation of his testimony, Dr. Wilson said:\n\u201cThe wound higher on the head inflicted by the valve.stem .[came] first. There was considerable hemorrhage as a result of that injury, indicating that the girl was very much alive at the time. As far as the laceration on the back- of the head was concerned, .... it occurred either after death or., when she was almost dead. I do not think that [the two] were inflicted at the same time. . . . There were bluish-black discolorations involving both eyelids and the surrounding areas, and over the bridge of the nose. In other words, she just had a black eye. . . . There was considerable swelling over the lips, but not much discoloration.\u201d Distance from the valve stem wonnd to the laceration was approximately four and a half inches. It was the Doctor\u2019s opinion that the lower wound was made by \u201ca dull article, [because] it wasn\u2019t a clean cut. The skin was more broken than cut.\u201d\nIt was Doctor Wilson\u2019s opinion that, primarily, the wound made by the valve stem caused death, and that other injuries were contributory.\nAppellant\u2019s Testimony. \u2014 In explanations relating to the oil drum, Cooper testified that he used a gasoline stove in his home. It required repairing, and the drum in his truck the night Mrs. Cooper was killed had been procured for use as a pressure tank. One end contained two openings, a large \u201ctap\u201d or bung approximately two and a quarter inches in diameter, and a smaller threaded hole diagonally across, and near the rim. The small hole had been closed, but the larger tap had been drilled in such manner that a truck valve stem could be inserted and made leak-proof. By this means a foot- or hand-pump could be attached to the stem and air forced into the drum. The drum, when partially filled with fuel, could thus be put under pressure and fuel fed to the stove through pipe connections.\nThe night Mrs. Cooper lost her life she and appellant put the oil drum in the truck, intending to take it to a filling station for gasoline. Cooper testified that when they arrived at the dump he got out of the car and with the aid of a flashlight gave directions, while Lois backed the machine to a spot where trash was usually unloaded. After getting rid of the load, appellant swept the truck bed, then had Lois pull up about three feet. First, however, he had removed the oil drum, placing it immediately back of the car to hold open the door on the west side. The debris was in sacks, but some sifted through to the car floor. A canvas was used for cleaning purposes. \u201cThen,\u201d said the witness, \u201cI set the barrel back in the car, closed the door, ran around, and jumped in, laid the flashlight behind the seat, and we started up normally. I didn\u2019t notice anything wrong except that as the motor was Med\u2019 it started to race. . . . I thought [Lois] was just playing, (we do that a lot of times: would take off in that [way] and spin the wheels quite a little way); but she made this \u2018arc,\u2019 and she called for me to help her. I reached with my foot for the accelerator and grabbed the key. I broke the [key] chain and had to reach a second time to turn off [the ignition] \u2014 I believe I got it turned off, but can\u2019t swear to it \u2014 because at the same time I got it (I turned the key off) this car went off the embankment with the lights still shining in front. It looked like a black hole down there with no bottom to it. I threw one arm in front of me (indicating) and the car seemed to hit with its front end.\u201d\nThe witness then said he struck his head on the windshield, in consequence of which a tip of the nose was cut off. He added, further, that there were scratches on the side of his face, a split place on the mouth (presumptively caused when a tooth cut it), .and \"I cut my neck trying to get my head back through the windshield. It 'bulged out\u2019 where I tried to get my head back, forming a trap. I had to take my hand and push [the glass] to the side to get my head out. \u2019 \u2019\nThe next thing appellant could remember, he was sitting or squatting on the right side of the car. He was outside \"feeling his face\u201d until Lois called: \u2014 \"I then went back through the car. The seats were turned down and this barrel was crossway on top of the back of them. I pushed [the seats] back and pushed the barrel back in the truck and went through to her.\u201d\nLois, appellant said, was lying on her face \"practically\u201d in front of the left front wheel. The following details were given: \"I tried to pick her up, but the left arm was numb. It wouldn\u2019t work \u2014 just felt like it belonged to some one else. I put her left arm around my neck and tried to pick her up, and couldn\u2019t. Then I turned her over and put both arms around my neck and told her to hold on. At that time the car came forward and the front of the fender hit me and also seemed to catch her. She [said something like] \u2018don\u2019t give up,\u2019 or \u2018don\u2019t leave me.\u2019 I tried to extricate her by digging cans out from under her; it seemed like the front wheel had her caught, like it was coming across from the left side. . . . Then [after digging cans] I got a pole that had a piece of wire on it and tried to pry the car up to get her away. . . . The wheel didn\u2019t seem to hurt her. She could talk to me and she actually did, hut those [few] words were all I can recall. Well, [the car wheel] didn\u2019t seem to he on her real tight, . . . but I couldn\u2019t get her loose: then she made a funny noise. I thought it had crushed her or something. It was a gurgling sound in her throat. I took my left hand and wiped off the side of her face and got a whole handful of blood.\u201d\nAppellant said that after continuing unsuccessfully to give relief, he went \u201cback in the truck\u201d and hunted for the flashlight, but couldn\u2019t find it. Being \u201chalf crazy\u201d with fear and apprehension, he tried to start the ear \u201cand drive it off down in there to get it off of her. It wouldn\u2019t start, but the effort seemingly caused the flashlight to fall on the floor board. I grabbed it and went back [to Lois] and found she wasn\u2019t pinned very tight. I got her by the hair of the head, and then, when she did come out from under it, a lot of cans came out with her, and we all fell off right in front of the wheel. There was almost a sheer drop for several feet, and I fell backward and .took her with me. I fell more than once. \u2019 \u2019\nCooper, when asked by his attorney regarding these movements, replied that he had. formerly made the statement that the fall was about 70 feet. He had tried twice to pick Lois up, but fell both times. As a result of the first attempt they rolled a little way. After trying a second time, he placed Lois on the ground, straightened up her clothes, then went for help. He claimed that at that time he was unable to stand alone, and had to crawl to the highway.\nAppellant remained approximately two weeks in Veterans Hospital. Dr. Mulkey testified that he first saw Cooper the night of December 25th. The patient appeared to be in considerable distress and complained of pains in the lower portion of his hack and in the right shoulder. ' There were numerous scratches ' about his face: \u2014 \u201crather deep scratches, bruises and abrasions.\u201d . On his shoulder there were contusions. The back muscles were rather stiff. At times the shoulder was dislocated, but on other occasions it was not. The Doctor thought .this might be accounted for by the position of the patient\u2019s arm when examinations were made. Urinary tests showed traces of .blood cells, indicating a kidney injury, new or old.\nNotes Taken at the Inquest. \u2014 Appellant complains that stenographic notes of his testimony, given at the inquest, were improperly admitted \u2014 a matter treated under a different heading in this opinion. According to this evidence, appellant was driving the truck when the dump was reached, and turned to the south; but his wife backed it to a designated position \u2014 a distance of perhaps three feet. Appellant didn\u2019t know of any [tree or bush limbs] that were in the way. While standing at or near the back of the truck he threw to the ground, or dropped, the canvas with which the car was cleaned after the trash had been disposed of, then placed the oil drum in the truck in an upright position. The motor was running when Lois \u201cpulled up a little to let me clean out [the bed] \u2019 \u2019.\nAppellant further testified that the truck was not in motion when he got back into it. First, [\u201coriginally\u201d] the car started slowly. Cooper-had stated that Lois was a good driver, and he appears to have repeated the statement that she was at the wheel, that the headlights were on, and that when they got to \u201cthe hill\u201d the car \u201ccouldn\u2019t have been\" going very fast [because] it was in low or second gear. \u2019 \u2019\nA sudden stop, Cooper testified, caused him to \u201crun his head into the windshield.\u201d He didn\u2019t know whether his head actually went through the glass, but it caught him \u201cback of the ears here when I tried to get out.\u201d After the impact Lois told him she was \u201cbad hurt.\u201d Then he said: \u201cI started to pick her up and the ear dropped something like two feet. The upper part of the window caught my shoulder, and up in the front where the bumper and the springs are fastened on and caught on the back of her head \u2014 it looked like her neck-m.' and I dragged her back from under that and got her turned over, and the car kept \u2018settling\u2019 on me \u2014 [came down a second time]. It didn\u2019t make any sudden move; just gradually came on down and caught \u2014 I think it was \u2014her clothing, but I couldn\u2019t get her out. It came down over the top part, on her neck, or somewhere along in here,\u201d (indicating).\nCooper said he was trying his best to hold the wheel off of his wife\u2019s body, \u201cand when it got on her it didn\u2019t seem to hurt so bad, [for] she could still talk to me;then something \u2018gave\u2019 under the car. I was digging the cans out and it smashed my thumb and caught me for a. little while, but I got loose. . . . When it passed down she made gurgling sounds and never did talk to me any more, and I lost my head, I guess. [Then] I got in the. car and tried to drive it off \u2014 tried to lift on the back bumper, and it was going on over the dump. I went' around the car and hunted for a pole or anything I could get to pry with, then I got her by the hair of the head and by the coat, and pulled. [But just before that time] the c\u00e1r wheel was pn her left chest: had rolled over her \u2014 no, it came across this way,\u201d (indicating the neck).\nThere was repetition of 'the statement that when Lois was extricated \u201cthey both'went to the bottom [of the ravine]\u201d. Appellant \u201cguessed\u201d that an hour \u2014 \u201cI .don\u2019t believe it was over that\u201d \u2014 elapsed between the time the car went over the embankment \u201cuntil we landed down the hill.\u201d During that period he frantically dug in the debris with both hands.\nTouching upon domestic relations, appellant testified that he didn\u2019t remember any .difficulty of a serious nature. On two occasions he had slapped Lois and had once broken her glasses. Regarding the young lady who told of their sexual escapades, appellant admitted that he \u201cworshiped\u201d her, but coupled with this declaration was the assertion that his wife was also fond of the girl, and that the attachment sprang from the circumstance that the child they lost (had it lived) would have been the same age. At another period in his inquest-testimony, appellant said, \u201cI am not hurt: I\u2019m not complaining one bit.\u201d\nSummation of Factual Status. \u2014 When full effect is given the rule that the demeanor of a witness who is heard by a jury may be taken into consideration, that a hesitant, halting, or evasive manner may at times reflect actuality with as much conviction as might be shown by affirmative statements; and when the contradictory nature of appellant\u2019s different explanations is compared with rationale reached by the medical experts, the conclusion, then, is inescapable that there was substantial basis for the verdict. There was positive testimony that death was caused by the head wound, \u2014 a wound, as Dr. Wilson said, that corresponded in area and in other respects with the valve stem.\nThe jury was warranted in believing from Cooper\u2019s lack of frankness, and want of consistency with explanations, that the truck was intentionally wrecked. Condition of the skid marks sustains the State\u2019s theory that Cooper, not Lois, started the engine when the truck was at a standstill, accelerated the motor to such an extent that when the clutch was engaged the rear tires \u201cspun\u201d momentarily before gripping the ground, and that during this transaction Cooper steered the machine in a comparatively straight line until speed had been acquired, then pulled sharply to the left as he sought personal safety. The oil drum was- in a position to have fallen against Mrs. Cooper\u2019s head; and in fact it did fall. The \u201cbung\u201d or tap admittedly prepared by appellant for reception of the valve stem was broken, and the stem was in Mrs. Cooper\u2019s hair. A witness who drove by the rubbish dump at a time Cooper claims to have been trying to free his wife testified in a manner supplying negative contradiction of appellant\u2019s assertions.\nSome witnesses thought Cooper had a \u201ctrick\u201d shoulder, and they testified he had been known to dislocate the member to entertain his friends. The fact-finders no doubt (and they had a right to do this) weighed the evidence of witnesses whose testimony was contradictory respecting the condition of appellant\u2019s hands following his alleged endeavor to dig in the debris where broken glass, tin cans, and sharp-edged or abrasive substances would have left their marks. There does not appear to have been a satisfactory answer to the natural inquiry, Why, if Cooper fell twice with his wife, or rolled down a precipitate embankment more than a hundred feet, were her garments, (including hose) virtually intact, and why did Cooper\u2019s wearing apparel show so little evidence of hard usage?\nIf Mrs. Cooper\u2019s death was caused by the valve stem when it was driven into her head as the oil drum fell against her, death was almost instantaneous. This was the Doctor\u2019s conclusion, hence conversations such as appellant testified to were highly improbable. The insurance, with double indemnity if death occurred through accidental means, \u2014 policies procured in recent months with annual premiums of more than $500 \u2014 and admitted liaison with an immature girl who returned appellant\u2019s affections and had received his assurance that his wife would not live long; his reference to marriage and a wedding ring before school closed; the inferential offer of $5,000 to a coroner if he would assist in lifting the burden of suspicion; appellant\u2019s statement to witnesses who told him the girl friend had admitted their illicit relations, \u201cWell, it\u2019s all over now: I hope you electroc\u00fateme; .... I\u2019m ready to plead guilty\u201d, \u2014 these facts and circumstances, when considered as a whole, could not be dismissed as baseless suspicion upon which accusation had been predicated.\nThe record covers more than 1,200 pages. Testimony has only been touched on in this review, each side having produced numerous witnesses. Our conclusions are that facts were sufficient for the jury to find that a motive existed, and that a predetermined course of action was pursued when the truck was driven to the dump. It follows that appellant\u2019s contention that the evidence was insufficient must he overruled.\nSecond \u2014 Competency of Juror Gene Thrasher. \u2014 On voir dire a list of all witnesses was read and prospective jurors were asked if they had discussed the case with any of them, or if, independently, they had formed or expressed an opinion. All who were accepted gave negative answers. In the motion for a new trial it was charged that Thrasher had talked with the Coroner and had been shown the valve stem found in Mrs. Cooper\u2019s head. Two witnesses, whose testimony at the hearing on appellant\u2019s motion to vacate the verdict was materially weakened on cross-examination, and one who asserted without equivocation that Thrasher had said Cooper was guilty and should be electrocuted, were used by the defendant to show that the juror had fraudulently procured a place on the panel.\nAlthough statements made by these witnesses were not countered by the State, their assertions were heard by the same Judge before whom the original examinations were conducted. Thrasher had said he could and would give the defendant the benefit of all reasonable doubts, that he would be guided solely. by evidence adduced at the trial, and that any preconceived ideas would be disregarded.\nCourts properly examine very carefully into assertions made by witnesses who, after a defendant has been convicted, come forward with what they insist were beliefs expressed in circumstances from which bias or prejudice against' the accused may be inferred. Weeks and months sometimes lapse between trial and what such witnesses say were remarks made at a time when the accused\u2019s status was being discussed. Because of the personal interest' a volunteer may have in serving a defendant, and because the exact words used at a remote period,.or the general import of a conversation, may later be purposely or unintentionally exaggerated, courts are given a broad discretion in determining (a) whether the evidence has been inspired through friendship for the defendant, (b) whether prejudice against the State\u2019s representatives has induced the course of conduct, (c) whether. memory of those testifying is at fault, and (d) whether, if true, the attributed declarations were anything more, than random comment. If the latter, and the proffered juror convinces the Court that, as in the case at bar, he has tried the issues fairly and treated the facts with reasonable consideration, the motion to quash should be denied. Judges are not compelled to accept all testimony as true, even though it is not 'expressly traversed. The. manner in which a witness acts on the stand, his general demeanor, the apparent presence of interest or an effort to serve some one, \u2014 these may d\u00e9prive sworn statements of substantial characteristics; and in the exercise of a sound discretion the Judge who listens to such witnesses must resolve conflicting inferences and act as he conscientiously believes the circumstances warrant. We are not willing, in the instant case, to say that this discretion was abused.\n\\ ' \u25a0 Third \u2014 Improper Evidence. \u2014 When appellant objected, to the Court\u2019s action in permitting Thelma Whit-low. to verify, and testify from, the stenographic record she had made of appellant\u2019s examination at the inquest^ he asked \u2014 in the alternative \u2014 that all the \u25a0 record be made available. When overruled he excepted. The Coroner\u2019s hearing was conducted December 29th. At that time Cooper liad not been formally accused, nor is there evidence that the information had been drawn. It was filed January 7th.\nUnder authority of Cole v. State, 59 Ark. 50, 26 S. W. 377, appellant thinks. prejudice resulted when excerpts from his testimony, as distinguished from a transcript of the entire examination, were admitted. But the Cole case does not stand for that proposition. It merely holds that where the purpose was to impeach the defendant, the transcribed testimony was the best evidence \u2014 not what a bystander thought he remembered the testimony to have been. Chief Justice Bunn, who wrote the opinion, , said the better practice would be to produce the entire written record. We agree that complete fairness sustains this course. A prejudicial situation might be reflected if appellant had shown by something more convincing than an objection that he was being placed at a disadvantage, in that emphasis was lost or the tenor affected for want of continuity when the Prosecuting Attorney selected questions and answers at random. This is not true here.\nThe Cole case was partially construed in Guardian Life Insurance Company v. Dixon, 152 Ark. 597, 240 S. W. 25, Judge Hart\u2019s statement being that the cited case was a criminal proceeding \u201cin which Cole was present at the Coroner\u2019s inquest and was suspected of being guilty of the homicide. Subsequently he was indicted for the murder of the deceased, and on his trial the court held that it was competent for the State to show what he had testified to at the Coroner\u2019s inquest because he was a party to it.\u201d See Tiner v. State, 110 Ark. 251, 161 S. W. 195; Anderson v. State, 197 Ark. 600, 124 S. W. 2d 216. In Brown v. State, 208 Ark. 28, 184 S. W. 2d 805, it was held that statements made by a claimant before Workmen\u2019s Compensation Commission regarding how a homicide occurred were admissible against him when he was subsequently indicted or informed against for murder, \u201cin the absence of a showing that he objected to being made a witness or that improper means were employed to procure the statements.\u201d\nAn early leading case involving admissibility of testimony given at a Coroner\u2019s inquest is People v. Molineaux, 168 N. Y. 264, 61 N. E. 286, 62 L. R. A. (1904) 193. It was said that one called as a mere witness, who fails to claim a privilege on the ground that the testimony may tend to incriminate him, cannot object to its introduction at his subsequent trial for the commission of the crime originally under investigation.\nSome of the matters complained of under subdivision (3) were not preserved by exceptions.\nThe contention that Dr. Wilford Wilson was appellant\u2019s physician when he made an examination the night of December 23d, if conceded, would not make reception of the statements erroneous under Ark. Stat. (1947), \u00a7 28-607, Pope\u2019s Digest, \u00a7 5159. The admissions were not made for the purpose of supplying the physician with information necessary to any treatment. St. Louis, I. M. & S. R. Co. v. Fuqua, 114 Ark. 112, 169 S. W. 786. The exclusion of certain other testimony was objected to by appellant, but it was clearly self-serving and the Court acted correctly as to it.\nFourth \u2014 Instructions.\u2014It is strenuously urged that Instruction No. 13 did not correctly declare the law. It told the jury that where the State relied entirely upon circumstantial evidence, \u201cit is necessary in order to convict . . . not only that such chain of circumstances as a matter of law should point to and be consistent with the defendant\u2019s guilt, but that [the circumstances] should be inconsistent with any other reasonable hypothesis. That does not mean any more than this: that the facts and circumstances in the whole case, taken together, \u2014 if they convince you beyond a reasonable doubt of the guilt of the defendant, [they are] sufficient to convict him. If they do not convince you beyond a reasonable doubt, [they] are not sufficient to convict him, and you should acquit the defendant. \u2019 \u2019\nSpecific objection was that the instruction did not tell the jury the State\u2019s proof \u201cmust be so convincing of [the defendant\u2019s guilt] as to exclude every other reasonable hypothesis. \u2019 \u2019\nThe defendant was not entitled to the modification suggested. Bartlett v. State, 140 Ark. 553, 216 S. W. 33; Bost v. State, 140 Ark. 254, 215 S. W. 615; Trammell v. State, 193 Ark. 21, 97 S. W. 2d 902. The Trammell case approves an instruction in the exact language used in the case at bar.\nOther instructions given, and those tendered and refused, have been examined. \"We do not find that error was committed, and the judgment is affirmed.\nMr. Justice George Rose Smith dissents.\n(1) The evidence was insufficient, and an instructed verdict of not guilty should have been given. (2) Gene Thrasher, a juror, stated on his voir dire examination that none of the State\u2019s witnesses had discussed the case with him, and that he had not formed or expressed an opinion regarding the defendant\u2019s guilt, whereas in conversation with a witness, overheard by others, he had said Cooper was guilty and ought to be convicted. (3) Improper evidence was admitted, (a)' In particular it is urged that testimony given by Thelma Whitlow, a stenographer, should have been excluded, or, in the alternative, she should have been required to supply the defendant with a transcript of his examin\u00e1tion December 29th when the coroner conducted an inquest, all witnesses at the hearing having been sworn. Miss Whitlow, in response to questions directed by the Prosecuting Attorney, read the answers Cooper had given. At that, time no accusations had been made, (b) Statements made by Cooper while in an ambulance just before he was treated by Dr. Wilford Wilson were privileged as communications between physician and patient, (e) Paul Adams ought not to have been allowed to testify to the defendant\u2019s \u201crelations\u201d with unnamed women over a period of three years from 1937 to 1941; also, that in 1937 Cooper burned an automobile for the purpose of collecting insurance, (d) The Court should have excluded testimony by Roy Stewart regarding tests with a barrel and valve stem, the State\u2019s theory being that Mrs. Cooper\u2019s skull was fractured with the valve stem of an automobile inner tube attached to an oil drum, (e) The defendant also predicates error upon the Court\u2019s action in hot permitting him (while examining W. H. Watson, who had testified for the State) to show that he (Cooper) made certain statements when he procured from Watson a long valve stem in exchange for a shorter one. (f) It was error to exclude testimony by others regarding what Cooper had said about procuring the valve stem and the use he intended to make of it. (g) The Court should have admitted testimony regarding questions asked of an insurance agent by Cooper concerning the cash value of a policy on the defendant\u2019s life, and whether such value could he used to convert the contract into a paid-up policy, (h) Evidence regarding a so-called \u201ctarp\u201d found near the city dump was improperly excluded. (4) Erroneous instructions were given and instructions to which the defendant was entitled were refused.\nBlack is the witness whose testimony regarding Cooper\u2019s statements in the doctor\u2019s office, position of the automobile, the blackjack, barrel, etc., has been referred to.\nThis statement was materially weakened on cross-examination when the witness said appellant\u2019s language probably was, \u201cI want to plead guilty; I am ready to be electrocuted; I\u2019m ready to go, but I didn\u2019t kill Lois, [but] I want to plead guilty and get it over with.\u201d", "type": "majority", "author": "Griffin Smith, Chief Justice." }, { "text": "George Rose Smith, J., dissenting.\nI disagree with the majority in only one respect. Thelma Whitlow acted as the reporter at the coroner\u2019s inquest and was a witness at the trial below. The State elicited from her many excerpts from appellant\u2019s testimony at the inquest. The prosecutor\u2019s questions usually began with words, \u201cDid he say, . . . \u201d, and were so framed that the jury heard only the precise words that the prosecuting attorney selected. A typical question and answer were': \u201cDid he say whether or not after he got her out on her back the car kept coming on slowly and finally came across her chest gradually?\u201d \u201cHe said that it did.\u201d\nIt is evident that this procedure entails a possibility of real unfairness to the defendant. The State could, by choosing short excerpts from the former testimony, introduce statements that would appear to be far more damaging to the accused than they would seem if the. context were known. For this reason it is the rule that, if the State introduces an admission or confession made, by the accused, he in turn may introduce whatever explanatory statements were made at the same time. Williams v. State, 69 Ark. 599, 65 S. W. 103. For instance, if the State should prove that the accused said, \u201cI killed my wife,\u201d he may of course show that the entire,sentence was, \u201cI deny that I killed my wife,\u201d or that it was, \u201cI killed my wife, but it was ah accident'\u201d\nIn this case the appellant asked that the entire record of his earlier testimony be put in evidence; I agree that the request was properly denied. J3ut the appellant\u2019s attorney then asked that he be permitted to examine the transcript from which the excerpts were taken. I think it was error to refuse this request. The statute directs that the transcript of the proceedings at the inquest be turned over to the prosecuting attorney. Ark. Stats. (1947), \u00a7 42-325. The accused is not supplied with a copy. He cannot in fairness be expected to remember every word that he said at the inquest some months before. A belated explanation from the witness stand would not appeal to the jury nearly so strongly as would proof that the explanation had been made in the first instance. Thus if the accused is denied access to the transcript from which excerpts are read, his right to introduce\u2019 contemporaneous explanations is actually destroyed. I think that we have now sanctioned a procechire by which the State in some cases might distort even an assertion of innocence into a confession of guilt.", "type": "dissent", "author": "George Rose Smith, J., dissenting." } ], "attorneys": [ "Vol T. Lindsey, for appellant.", "lice Murry, Attorney General, and Arnold Adams, Assistant Attorney General, for appellee." ], "corrections": "", "head_matter": "Cooper v. State.\n4571\n223 S. W. 2d 507\nOpinion delivered October 3, 1949.\nRehearing denied October 31, 1949.\nVol T. Lindsey, for appellant.\nlice Murry, Attorney General, and Arnold Adams, Assistant Attorney General, for appellee." }, "file_name": "0732-01", "first_page_order": 754, "last_page_order": 775 }