The opinion
John A. Fogleman, Justice, dissenting. I concur in the result and all of the majority opinion, except that part devoted to exclusion of evidence of prior homosexual advances. In spite of the revulsion I feel for these unnatural activities, I cannot agree with either the premise of the majority’s holding on this point or its result severely limiting the circuit judge’s discretion in the admission of evidence of this nature simply because the matter of the deceased’s unnatural sexual activities on the night he was killed had been asserted by appellant.
In order to put the matter in appropriate perspective, I want to emphasize the evidence on behalf of the state as to Wampler’s body, the condition in which it was found and the scene of the killing. It was shown that: Wampler’s hunting pants and jacket were found in a neat pile (as if they had been taken off and dropped) outside to the right of his pickup truck, his cap on the left side of the truck, and a pair of jockey shorts under the truck seat; Wampler’s body was unclothed, except for a pair of boots and a torn piece of ladies’ panties on one leg; and a lady’s nightgown was lying under, but partially draped over, his head. Wampler was 5' 11" tall, weighed 200 pounds and measured 38" around the waist. It was later shown that a woman with a waistline in excess of 26" could not comfortably wear the panties and the maximum weight of one who could wear the nightgown would be 150 pounds.
Even assuming that the evidence was sufficient to show an assault by Wampler with intent to commit sodomy or an attempt to do so, there was still no error in the court’s refusing to admit the proffered testimony. Appellant offered the testimony of Carroll Ray Bell about an incident that occurred in October or November 1967. He related that, one evening, a man driving a dark-colored Chevrolet truck with white trim and top asked Bell if he wanted a “blow job,” and persisted in trying to get Bell, then 17 years of age, to go with him. Bell said he reported the matter to his mother, who, in turn, reported it to the Town Marshal sometime later that night. The Marshal would have testified that, after receiving the report, he circled the neighborhood and saw a maroon and white Chevrolet or GMC pickup truck, the driver of which was trying to talk with a teen-age girl on the sidewalk while driving slowly along beside her. This witness said that he stopped the driver whom he identified as Jimmy Wayne Wampler and summoned him to court on a charge of “Attempting to pick up boys,” and required a $25 appearance bond, but suggested that Wampler return and bring cash the next morning when Wampler offered to give a check. The officer said that Wampler came in the next morning and brought the cash for his bond, which he later forfeited.
Appellant also offered the testimony of Bob Brown of Gillett, but the court ruled his testimony inadmissible when he began to tell of an incident that occurred some four years ‘earlier. The judge ruled all this offered testimony inadmissible because it was too remote in time. In a further effort to put the matter in proper perspective, I must emphasize the fact that the trial judge exercised his judicial discretion in ruling the testimony inadmissible because it was too remote.
Where evidence of prior conduct is admissible except for remoteness, the trial court has a discretion in determining whether it is too remote in time to justify admission. Caton and Headley v. State, 252 Ark. 420 , 479 S.W. 2d 537 ; DuVal v. State, 171 Ark. 68 , 283 S.W. 23 ; Wilson v. State, 184 Ark. 119 , 41 S.W. 2d 764 .
Further, assuming for the moment that the rules governing evidence of similar conduct to that for which a defendant is on trial are applicable, there was no reversible error on this point. We classified many of the facets of these rules in Alford v. State, 223 Ark. 330 , 266 S.W. 2d 804 , and have used that opinion for a guideline ever since. There we noted, in dictum, that where the charge on trial involved unnatural sex acts, proof of prior similar offenses has been received, not to show that the accused is a criminal, but that he has a “depraved sexual instinct.” The court did not say that such evidence must be, or should be, received. We did not say, and have not said, nor do I know of any other court that has said, that remoteness in tíme is not a factor to be considered in determining admissibility of such testimony.
An examination of our authorities on the subject of admissibility of previous unnatural sex incidents, in a trial where the defendant is charged with such an act, discloses that remoteness is, indeed, a factor to be considered. The cases relied upon for the classification made in Alford clearly state the significance of the element of remoteness. The decision in Hummel v. State, 210 Ark. 471 , 196 S.W. 2d 594 , was based entirely on the following quotation from Hearn v. State, 206 Ark. 206 , 174 S.W. 2d 452 :
This court has repeatedly recognized and declared that the evidence of other crimes, recent in point of time, and of a similar nature to the offense then being tried, is admissible as bearing on the question of intent. Some such cases are: Puckett v. State, 194 Ark. 449 , 108 S.W. 2d 468 ; Lewis v. State, 202 Ark. 6 , 148 S.W. 2d 668 ; Monk v. State, 130 Ark. 358 , 197 S.W. 580 ; Cain v. State, 149 Ark. 616 , 233 S.W. 779 . These cases involved such offenses as robbery, larceny, homicide, or operating a gambling house. We perceive no good reason why the same rule should not apply to : :x crimes; in fact, courts of other states have held that, in sex crimes, evidence of other acts of a similar nature, recent in point of time, is admissible as bearing on the question of intent. (Emphasis mine.)
In Hummel the time lapse was six months. In Hearn, it was two months.
In Roach v. State, 222 Ark. 738 , 262 S.W. 2d 647 in holding that particular evidence of similar conduct with other minors was admissible where the charge was contributing to the delinquency of a minor, we relied on other cases, saying:
Moreover, such testimony was not inadmissible in this case. We so held in Hummel v. State, 210 Ark. 471 , 196 S.W. 2d 594, 596 , where, under a very similar situation the court said: “This court has repeatedly recognized and declared that the evidence of other crimes, recent in point of time, and of a similar nature to the offense then being tried, is admissible as bearing on the question of intent.” Also in Gerlach v. State, supra, it was again said [ 217 Ark. 102 , 229 S.W. 2d 37, 40 ]: “We have frequently held that evidence of other crimes of a similar nature to the one on trial and recent in point of time is admissible as bearing upon intent or purpose.” (Emphasis mine.)
Later, in Ward v. State, 236 Ark. 878 , 370 S.W. 2d 425 , we considered the question of remoteness. We there said that the question of remoteness had not been raised, but might be on a second appeal. We recognized the general rule that such testimony must not be too remote, but said that a case of that kind (fondling a male child under. 14 years of age) was not, in all respects governed by the general rule. We were unwilling to say that, once it is established that a mature person had developed the proclivity to indulge in unnatural sex acts, it would be erased by the lapse of four or five years. It must be remembered that, in Ward, the evidence had been admitted. We did not say that the trial court should not consider the question of remoteness or that a period of four to five years might not be too remote. Nor did we say that the incidents were, as a matter of law, not too remote. The effect of the decision is simply to hold that the incidents were not, as a matter of law, too remote.
Authorities from other jurisdictions do not lend full support to the majority’s statement, or eliminate the time factor. While Kerlin v. State, 265 N.E. 2d 22 (Ind. 1970), may appear to support the majority position, it is not at all clear that the question of remoteness was considered in that case. The court did not discuss it at all, and the decision actually turned upon the distinction between cases where a “depraved sexual instinct” was involved and the usual case where evidence of prior offenses by the accused is inadmissible to show that a defendant’s character is bad or that he has a tendency to commit certain types of crimes. The Indiana court followed the rule of Lovely v. United States, 169 F. 2d 386 (4th Cir. 1948), cert. denied, 338 U.S. 834 , 70 S. Ct. 38 , 94 L. Ed. 508 (1949), the case used in Alford to rationalize the Hummel-Roach category of the “unnatural sex act” exception from the general rule excluding evidence of prior offenses. Yet, as pointed out above, the importance of the relationship in time was recognized in both of these cases. I do not take Evans v. United States, 277 F. 2d 354 , 1 A.L.R. 3d 566 (I960;, a 2-1 decision of the District of Columbia Court of Appeals, to be totally in harmony with our own decisions. The evidence actually rejected there had nothing to do with the deceased’s sexual proclivities. It merely related to his nature when drunk. The Evans language quoted in the majority opinion seems to justify the admission of any land of evidence to show “what kind of man the decedent was.” This is the antithesis of our own rules of evidence. 1 Even so, the Evans court found that the rejected proffer, inartfully stated, should be broadly construed as an effort to explain the deceased’s general character and reputation. We rejected very similar evidence in Stout v. State, 244 Ark. 676 , 426 S.W. 2d 800 , saying;
Ed Baker was foreman at a plant where Jones was at one time employed. If permitted, he would have testified that Jones was discharged by Baker because he was intoxicated on the job, was “loud and belligerent, rude and very disrespectful.” There was evidence to the effect that decedent was intoxicated when he was shot and that he was belligerent. Appellant contends that Jones’ acts of belligerency at the time he was discharged would tend to show that drunkenness always brought on belligerency on the part of Jones. To establish such a pattern of conduct by a single prior act is too illogical to require comment.
Multiplying the incident by two would certainly not have affected the rule.
The majority seeks to equate this situation with that arising in self-defense cases when the question turns upon determinauon whether the accused or the deceased was the aggressor. This analogy would not require the admission of the testimony offered in this case. Of course, in such cases, evidence of previous difficulties between the two parties involved is admissible, unless too remote in point of time. Crews v. State, 179 Ark. 94 , 14 S.W. 2d 261 ; Ross v. State, 181 Ark. 331 , 25 S.W. 2d 769 . So is evidence of previous threats made to the defendant by the deceased. Bell v. State, 69 Ark. 148 , 61 S.W. 918 , 86 Am. St. Rep. 188 . Likewise, even uncommunicated threats are admissible, if there is any evidence of self-defense, but not if too remote in time to have any bearing on the question or to afford any reasonable presumption or inference of connection between the occasion when' the threats were made and the difficulty under investigation. Crews v. State, supra; Parsley v. State, 151 Ark. 246 , 235 S.W. 797 ; Brown v. State, 55 Ark. 593 , 18 S.W. 1051 . See 5 Ark. L. Rev. 207 . On the other hand, it is not competent in such cases to show the violent and dangerous character of the deceased by evidence of isolated facts or particular acts, at least if they were not known to the accused at the time of his alleged offense. Baxter v. State, 227 Ark. 215 , 298 S.W. 2d 47 ; Taylor v. State, 222 Ark. 491 , 261 S.W. 2d 401 ; Montague v. State, 213 Ark. 575 , 211 S.W. 2d 879 ; Edwards v. State, 208 Ark. 231 , 185 S.W. 2d 556 ; Day v. State, 185 Ark. 710 , 49 S.W. 2d 380 .
The “self-defense” analogy seems, to lend little support to a declaration of error here. Even if it could be said that through this analogy, the ■ proffered testimony might have been admitted, there still remains the question whether the incidents were too remote in time, on which the discretion of. the trial court is. subject to reversal only for manifest abuse.
I cannot agree with the majority that the issue of homosexuality was before the jury only through the evidence offered by the state, or that the state introduced evidence making this testimony admissible. The testimony of the dress shop owner certainly did not mention homosexuality. The officers had described Wampler’s body and its condition when they found it where Kagebein’s companions told them it would be. This description revealed that neither of the feminine garments was positioned on the ■ body. as it would have been worn. The panties were on orie.leg arid the gown was under the head and draped over it so that it was over the brillet wound that caused death. It is significant that there was no bullet hole in the gown. As indicated in the majority opinion, attempted inquiries addressed to jurors on voir dire by defense attorneys were the first mention of homosexuality. At that time, appéllant’s attorneys categorically stated that they anticipated that there would be evidence of homosexuality. The Opening statement on behalf of the defendarit certainly, raised the issue in very explicit terms, sáying that the evidence would show, that Wampler had oral copulation with three of the boys. During Trooper Stracener’s testimony, he was cross-examined as to whether the gown could have’ been pulled up from the body over the head. This question and other cross-examination were clearly directed toward casting an inference that both the gown and panties were on the Wampler body at the time the officers saw it as if he were wearing them. The testimony tending to show that he could not have worn them did not, in my opinion, open the question of homosexuality. It merely tended to sustain the state’s theory that the defendarit and his associates stripped Wampler, attempted to put the panties on him and left the nightgown he could not have worn over his face. It certainly did not invite the testimony about the prior incidents, or change the manner in which it should be treated, either in the trial of appellate court. It certainly did show that it was highly unlikely that Wampler was wearing the'gown when he was shot.
The majority has overlooked the fact that the state has the right to and did show every circumstance surrounding the encounter in order to show the motive for the killing, and that, while the state is not required to show motive, in order to establish guilt, the absence of motive is a circumstance to be considered with other facts in determining guilt or innocence. Hogue v. State, 93 Ark. 316 , 124 S.W. 783 , 130 S.W. 167 . The inability of Wampler to wear the garment draped over him, considered along with the fact that items of his personal property were missing and found in the possession of those who fatally assaulted him, certainly tended to show a robbery motive. This evidence was admissible, where self-defense was pleaded, to show, along with other facts and circumstances, intent, malice, deliberation and premeditation by showing the manner of the assault, the nature and location of the wound, the way the weapon inflicting it was used and other circumstances tending to reveal the state of mind of the person or persons inflicting the mortal wound. Nunley v. State, 223 Ark. 838 , 270 S.W. 2d 904 ; Ward v. State, 208 Ark. 602 , 186 S.W. 2d 950 ; Grays v. State, 219 Ark. 367 , 242 S.W. 2d 701 ; House v. State, 230 Ark. 622 , 324 S.W. 2d 112 ; Jenkins v. State, 222 Ark. 511 , 261 S.W. 2d 784 ; Bramlett v. State, 202 Ark. 1165 , 156 S.W. 2d 226 ; Cheney v. State, 205 Ark. 1049 , 172 S.W. 2d 427 . The evidence tending to show that Wampler was not wearing the feminine garments when shot and that they were placed on or over him thereafter certainly was a circumstance tending to show malice by showing the abandoned and malignant disposition of the killer. Carson v. State, 217 Ark. 658 , 232 S.W. 2d 835 . In short, the state had a right to show anything that occurred between the parties and to show the mental attitude of the accused at the time. Brown v. State, 149 Ark. 588 , 233 S.W. 762 . The only way in which the mental attitude of the accused at the time of a killing can be judged is by the attendant circumstances, and broad latitude must be allowed in introduction of testimony bearing upon motive. Bly v. State, 213 Ark. 859 , 214 S.W. 2d 77 ; Higdon v. State, 213 Ark. 881 , 213 S.W. 2d 621 . The evidence had a real bearing on the degree of the crime. Smith v. State, 230 Ark. 634 , 324 S.W. 2d 341 . It was admissible to show the inference deducible from the physical circumstances as to the manner in which Wampler came to his death. Russell v. State, 148 Ark. 654 , 227 S.W. 775 ; Houston v. State, 165 Ark. 294 , 264 S.W. 869 .
Furthermore, the state necessarily relied upon circumstantial evidence alone for proof of material elements of the charge of first degree murder. In this situation, it was incumbent upon the state to introduce evidence tending to negate other reasonable hypotheses, and every fact tending to shed light on the issues was admissible and to be given proper consideration. Phillips v. State, 241 Ark. 601 , 408 S.W. 2d 883 ; Taylor v. State, 211 Ark. 1014 , 204 S.W. 2d 379 ; Bowie v. State, 185 Ark. 834 , 49 S.W. 2d 1049 , 83 A.L.R. 426 .
Clearly, this testimony could not be taken to have been introduced for the purpose of, or to have resulted in, introduction of homosexuality as” an issue. Certainly it did not invite the introduction of evidence of prior conduct of the deceased independent of any relationships to or with Kagebein or his associates, and totally unknown to them, which would have otherwise been inadmissible.
Although I am unwilling to join in an overextension of a rather unusual exception to the rule against admitting evidence or prior bad conduct by eliminating the trial court’s discretion in determining whether the acts are too remote in time, I would reverse and remand for a new trial on the other grounds stated in the majority opinion.
As recently as Sanders v. State, 245 Ark. 321 , 432 S.W. 2d 467 , a second degree murder case, we rejected an assignment of error based upon the trial court’s rejection of testimony concerning the homicide victim's prior specific acts of aggression and misconduct toward others to show his violent nature, saying that this could properly be shown only by proof of general reputation.