{ "id": 1604120, "name": "O. H. Cooper v. State of Arkansas", "name_abbreviation": "Cooper v. State", "decision_date": "1969-03-17", "docket_number": "5-5404", "first_page": "368", "last_page": "376", "citations": [ { "type": "official", "cite": "246 Ark. 368" }, { "type": "parallel", "cite": "438 S.W.2d 681" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "55 S.W. 2d 88", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "186 Ark. 713", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8725223 ], "opinion_index": 0, "case_paths": [ "/ark/186/0713-01" ] }, { "cite": "224 Ark. 859", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1646620 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/224/0859-01" ] }, { "cite": "242 Ark. 142", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8717992 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/242/0142-01" ] }, { "cite": "187 S.W. 913", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "125 Ark. 111", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1553256 ], "opinion_index": 0, "case_paths": [ "/ark/125/0111-01" ] }, { "cite": "43 Ark. 345", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1894488 ], "opinion_index": 0, "case_paths": [ "/ark/43/0345-01" ] } ], "analysis": { "cardinality": 689, "char_count": 13109, "ocr_confidence": 0.491, "pagerank": { "raw": 3.810609847897864e-07, "percentile": 0.8978509944016041 }, "sha256": "2fa47f4b0a8963495ba90361581de6d17660f85eab97a7486592830d5e668c6b", "simhash": "1:b3d80a3067d4713a", "word_count": 2302 }, "last_updated": "2023-07-14T22:44:17.719304+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Holt, J., not participating." ], "parties": [ "O. H. Cooper v. State of Arkansas" ], "opinions": [ { "text": "John A. Fogleman, Justice.\nAppellant seeks reversal of his conviction of the crime of malicious injury to graves or monuments. The charge is based on Ark. Stat. Ann. \u00a7 41-3706 (Kepi. 1964). Under this act the wilful and malicious destruction, injury or defacement of any grave or monuments or the wilful and malicious removal or destruction of a monument constitutes a felony. Appellant argues three points for reversal. They are:\n1. Error in refusal of his motion for directed verdict ;\n2. Error in modifying his requested instruction No. 3 and in giving the instruction as modified;\n3. Error in denying a motion for new trial.\nIn reviewing the sufficiency of the evidence as against the motion for directed verdict, we must view it in the light most favorable to the state.\nTerry Pillow testified that he had been familiar with the cemetery known as the Adderholt Cemetery for 10 or 15 years and had known of' its location for 35 or 40 years. He said that the graves of some of his relatives were definitely marked, by monuments. According to Mm, some of the monuments were fieldstone bearing names and dates and others were rocks piled over the grave with initials and dates carved on the top rocks. He testified that a dwelling house had been built within 12 or 15 feet of the graves of his relatives. On his visit to the graves preceding that when he saw the house, there was still a fence around the graves. He estimates that there were from 20 to 35 graves in the graveyard all of which were marked with tombstones. He recalled that the graves of the Baker family were marked with marble tombstones. \u25a0 He found the fence in place shortly before appellant bought the property which included the graveyard.\nMrs. Ora Belle Baker McGraughey testified that gray marble tombstones were placed on the graves of her grandparents but that the tombstones were gone at the time of the trial.\nMr. Bichard SMpman who purchased the land including the graveyard along with appellant testified that their deed was made December 22, 1965. After the purchase of the land, he and Cooper walked over it and found evidence of the cemetery in the form of marble tombstones bearing the name of Baker and covered graves. Shipman received a call through which he was advised that there was a graveyard on the land. He relayed this information to Cooper. It was later verified by the person from whom they purchased the land. SMpman also described fieldstone and flat sandstone standing 18 inches off the ground so as to enclose what appeared to be graves. He told Cooper that they should put a small fence around the cemetery if they could establish the boundary lines, saying that they couldn\u2019t afford to molest the cemetery. Shipman returned to the site after a road was constructed and found that the two marble tombstones were gone. The graves appeared to be intact at that time. Shortly, thereafter, Shipman sold his interest in the land to Cooper. He returned to the site later and saw a dwelling house within 10 or 12 feet of the place he had seen the tombstones and graves.\nHerbert Terry told of going to the cemetery about the time a road was being constructed by appellant. He stated that he asked Cooper to leave the rock where his relatives\u2019 graves were. At that time the rocks were still in place but the Baker monuments were not. He returned to the site in June or July of 1968 and the rocks on his relatives\u2019 graves had disappeared. Cooper advised Terry that the rocks were in the footings where he was building a house. According to Terry the house was sitting where the graveyard had been and the driveway wTas the cemetery. Terry claimed that the headstone of his grandfather\u2019s grave was jerked up twice during the construction by Cooper and that he and his wife had replaced it both times. He found it removed a third time but did not replace it because it was broken in two or three places.\nPat McEntire testified that Cooper employed him to haul some rock that was piled at or near the site of the cemetery. The rock was put under the floor of Cooper\u2019s brother-in-law\u2019s house for fill.\nCharles Youngblood stated that he was hired by Cooper to level some ground at or near the location of the cemetery. He stated that Cooper picked up some flat sandrock stacked to make what appeared to be a tomb and put it in his pickup truck. Youngblood had previously refused to haul the rock off and told Cooper that it appeared to be tombstone rock. He testified that Cooper told him they were graves.\nTom Bearden was employed by Cooper to install the plumbing in the house built near the graves. When he first went to the site he saw two stacks of rocks which looked to him like graves. Later he noticed they were gone. Bearden engaged in a conversation with Cooper and one L. E. Stewart with reference to the choice of a shallow or a deep septic tank for the house being constructed. He could not recall the particular statements made but stated that a decision was reached to use the shallow tank in order to avoid digging in any graves in the cemetery.\nGeorge Lowe was a roofer employed by Cooper to roof the house built near the cemetery. He noticed three or four graves near the house. Lowe saw L. E. Stewart using a backhoe in Cooper\u2019s presence to dig* for the installation of a septic tank. According to Lowe, a trench for the septic tank line was being dug across the graves, and he and his son went to the trench where they could see the dark form of a grave six feet from the foundation of the house. Lowe heard Herbert Terry make an angry protest to Cooper and heard Cooper say if Mr. Rockefeller could get by with it so could he.\nThis evidence was certainly sufficient for a jury to find a guilty verdict if the testimony was accepted at face value.\nAppellant requested the following instruction to the jury:\n\u201cThe three essential facts to constitute the crime with which the defendant is charged are :\n1. That he committed the acts charged in the indictment;\n2. That he did so wilfully;\n3. That he did so maliciously.\nYou are further instructed that word \u2018maliciously\u2019 means the doing of an act in a manner showing a heart regardless of social duty and fatally bent in mischief. It means an act done intentionally and with evil intent, without just cause or excuse, or as a result of ill-will.\u201d\nTlie circuit judge refused the instruction as requested but over appellant\u2019s objection gave the following instruction:\n\u201cThe three essential facts to constitute the crime with which the defendant is charged are:\n1. That he committed the acts charged in the indictment;\n2. That he did so wilfully;\n3. That he did so maliciously.\nThe jury is instructed that a malicious act is a wrongful act intentionally done without legal justification or excuse. It is an unlawful act done wilfully or purposefully, the evidence of which may be inferred from the acts committed or words spoken. \u2019 \u2019\nThe gist of appellant\u2019s contention with reference to the instruction given seems to be that it does not sufficiently define the word maliciously as used in the statute.\nThis court had occasion to consider the meaning of this word in a ease wherein the sufficiency of an indictment for burglary was attacked because the statutory word \u201cmaliciously\u201d was not used. Shotwell v. The State, 43 Ark. 345. In treating this question this court said:\n\u201cIn the use of the word \u2018maliciously\u2019 in the statute we cannot presume that the legislature intended that malice towards the owner of the house entered, or toward any one else should become an element in the intent with which the breaking is done. The word must be understood from its context to be intended in its restricted legal significanee which, implies \u2018the intent from which follows any unlawful or injurious act, committed without legal justification.\u2019 1 Bishop Cr. Law Sec. 429. It means doing a wrongful act without just cause or excuse. 2 Bouvier L. Dict. Malice.\nBishop says that \u2018maliciously\u2019 in an indictment has been adjudicated an equivalent to \u2022\u2018wilfully\u2019 in the statute. \u2018Maliciously\u2019 is of somewhat lai'ger meaning than \u2018willfully,\u2019 which in an indictment would not therefore supply the place, it is presumed, of maliciously in the Statute. 2 Bish. G. Pr. Sec. DC.\u201d\nWe find that the instruction given by the trial court was correct and that the requested instruction was properly refused. The one offered would have been incorrect even under Gordon v. State, 125 Ark. 111, 187 S.W. 913.\nAppellant\u2019s assertion of error in the failure to grant a new trial is based upon the argument that the court should have granted his motion because it had been discovered that the testimony of George Lowe was false. The motion asked a new trial on grounds of newly discovered evidence.\nIn support of the motion appellant offered the testimony of L. E. Stewart, Joe Miller and appellant\u2019s attorney, J. Loyd Shouse. They also presented the witness George Lowe.\nStewart testified that Lowe had stated subsequent to the trial that his testimony at the trial was false. Joe Miller who numbered both Lowe und Cooper among his hardware customers stated that Lowe came into Miller\u2019s store a week or ten days after the trial when Cooper was present. He overheard parts of a conversation between Lowe and Cooper about the former\u2019s testimony. According to him the two went out into the yard where they engaged in some eoaversatioi which was continued wlien they returned into the store. He heard a discussion between them as to what would be perjury and what would not and advised them to go to appellant\u2019s attorney. Miller said that he later saw Lowe and learned that he had not been to the attorney\u2019s office as promised. He then asked Lowe why he hadn\u2019t been, and Lowe responded that he wasn\u2019t going.\nAppellant\u2019s attorney testified that Lowe and Cooper came to his office about a week after the trial. Cooper advised him that Lowe wanted to make a statement. The attorney testified that Lowe said all his testimony in the trial was false, particularly that part about Cooper\u2019s having said that if Rockefeller could tear up a graveyard he ought to be able to do so. He said that Lowe also stated that his testimony about looking down into the excavation for the septic tank and seeing graves was false. When Lowe told Mr. Shouse that Bill Doshier, the prosecuting attorney, made him testify as he did, Shouse said that he didn\u2019t believe him and refused to write up a statement about what Bill Doshier did. Mr. Shouse said that he told Lowe that he would not write out any statement for him because of his disbelief of the statement that the prosecuting attorney had encouraged him to testify falsely. Mr. Shouse suggested that Cooper and Lowe return the next day but Lowe never came back.\nLowe testified that his testimony at the trial was true. He said that he was asked to go to Shouse\u2019s office by the appellant in order to see if there wasn\u2019t some way to obtain a suspended sentence or probation. He claimed that Cooper declined to wait until he could talk to the prosecuting attorney. He said that he left the Shouse office after Cooper had insulted him twice. He denied having told Shouse that his testimony was false or that he had followed Doshier\u2019s suggestions in testifying. On the other hand, Lowe testified that Cooper had suggested that these were the facts. Lowe\u2019s version of the conversation with Miller and Cooper was that they threatened him with civil suits because of his testimony.\nNewly discovered evidence is one of the least favored grounds for motion for a new trial. It is addressed to the sound legal discretion of the trial judge, and this court will interfere only in case of an apparent abuse of discretion or injustice to the movant. The determination of whether the application is in good faith and of the weight and sufficiency of the supporting evidence is within the discretion of the trial judge. In order to justify the granting of the motion, the evidence in support thereof should be clear and satisfactory. Gross v. State, 242 Ark. 142, 412 S.W. 2d 279.\nImpeaching testimony is not sufficient grounds for granting a new trial on the basis of newly discovered evidence. Philyaw v. State, 224 Ark. 859, 277 S.W. 2d 484. Even if it could be said that there was a recantation on the part of a witness, it is the duty of the trial court to deny a new trial where it is not satisfied that the recanting testimony is true, especially where it involves a confession of perjury. The question whether a new trial shall be granted on this ground depends on all the circumstances of the case including the testimony of the witnesses submitted on the motion for new trial. The answer lies largely within the discretion of the trial court. Clayton v. State, 186 Ark. 713, 55 S.W. 2d 88.\nWe cannot say that there was any abuse of the trial court\u2019s discretion in this regard.\nThe judgment is affirmed.\nHolt, J., not participating.", "type": "majority", "author": "John A. Fogleman, Justice." } ], "attorneys": [ "Robert W. McCorkindale for appellant.", "Joe Purcell, Atty. Gen. and Don Langston, Asst. Atty. Gen. for appellee." ], "corrections": "", "head_matter": "O. H. Cooper v. State of Arkansas\n5-5404\n438 S.W. 2d 681\nOpinion Delivered March 17, 1969\n[Rehearing denied April 21, 1969.]\nRobert W. McCorkindale for appellant.\nJoe Purcell, Atty. Gen. and Don Langston, Asst. Atty. Gen. for appellee." }, "file_name": "0368-01", "first_page_order": 400, "last_page_order": 408 }