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AYERS v. STATE9/22/1969
James Ayers was convicted of negligent homicide on circumstantial evidence in the Hot Springs Municipal Court and was sentenced to one year in the county jail. His conviction was affirmed on appeal to the Garland County Circuit Court and he has appealed to this court, relying on the following points for reversal:
"The court erred in overruling defendant's motion to dismiss as the state's violation of criminal procedure had substantive effect.
The court erred in overruling the defendant's motion to exclude evidence including the blood test and other evidence solicited by the police officer from the defendant while in police custody.
The court erroneously permitted the arresting officer, George Riggs, to testify as to his conclusion as to the point of impact.
The court erroneously overruled the defendant's motion for judgment at the conclusion of the state's case.
When the trial court proceeds from clarification to development of the state's case, at that point the court becomes an advocate and at that point reversible error has been committed.
Reasonable hypotheses were not excluded "and the conviction of the defendant was, therefore, at best, a guess.
Since we must reverse on appellant's fourth and sixth points, we shall not discuss the others.
The record reveals the following facts: About midnight on December 19, 1968, a 1963 Thunderbird automobile, being driven by Ayers, collided with a 1954 Pontiac automobile being driven by E. G. Beckwith. "Both drivers were taken to a hospital in Hot Springs, but Beckwith was dead upon arrival. Ayers was charged with negligent homicide under Ark. Stat. Ann. 75-1001 (Repl. 1957) which provides in part as follows:
"(a) When the death of any person ensues within one year as a proximate result of injury received by the driving of any vehicle in reckless or "wanton disregard of the safety of others, the person so operating such vehicle shall be guilty of negligent homicide."
The record is not as clear as it might have been as to the exact location of the scene of the collision in relation to the city limits of Hot Springs, but it occurred in Garland County apparently on a two-lane section of new Highway 70 leading east from Hot Springs toward Lonsdale, Benton and Little Rock. From the exhibited photographs of the scene of the collision, the highway is plainly marked by a double stripe painted in the center of the blacktop pavement dividing the two traffic lanes from each other and by a single stripe along the outside edge of each traffic lane, dividing it from the gravel shoulder of the highway.
There is considerable difference in the rules of evidence pertaining to criminal prosecutions as distinguished from civil actions. In a criminal prosecution, the accused remains innocent until proven guilty and the entire burden of proof rests on the state to prove the accused guilty beyond a reasonable doubt. In civil actions, the greater weight, or preponderance of the evidence, rule applies. Circumstantial evidence, as well as direct evidence, comes within the same rule.
In Nichols, Applied Evidence, vol. 2, 11, 13 and 24, at pages 1066-1069, the differences in the rule as applied to criminal and civil cases are well pointed out, as follows:
(In criminal prosecutions).
"11. . .In order to sustain a conviction based solely on circumstantial evidence, the circumstances must be consistent with `he guilt of the accused and inconsistent with his innocence, and incapable of explanation on any other reasonable hypotheses than that of guilt. When the circumstances are of such a character as to fairly permit
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