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    Deborah Lynne LITTLE v. STATE of Arkansas
    CR 76-109
    554 S.W. 2d 312
    Opinion delivered June 27, 1977
    (Division I)
    [Rehearing denied September 19, 1977.]

      Spencer & Spencer, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Terry R. Kirkpatrick, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Carey Dean Little literally had his brains blown out by a shotgun blast as he lay sleeping in his bed at his home in Huttig, Arkansas, very early on the morning of January 16, 1975, his thirty-second birthday. His daughter Deborah Lynne (born August 5, 1960, according to her mother) was charged with his murder, found guilty, and sentenced to life imprisonment for murder in the first degree. She seeks reversal of this conviction on ten grounds. They are:

I
APPELLANT’S STATEMENT, MADE AT HER ARREST, AND ADMITTED OVER OBJECTION, WAS INVOLUNTARY AND INADMISSIBLE.
II
APPELLANT’S TAPE RECORDED STATEMENT, ADMITTED OVER HER OBJECTION, WAS INVOLUNTARY AND INADMISSIBLE.
Ill
APPELLANT’S STATEMENTS, MADE AFTER SHE HAD RETAINED COUNSEL AND WITHOUT PRIOR NOTICE TO COUNSEL, WERE INADMISSIBLE.
IV
INSTRUCTIONS ON BURDEN OF PROOF TO REBUT THE PRESUMPTION OF CHILD’S CRIMINAL INCAPACITY WERE ERRONEOUS.
V
INSTRUCTIONS DENIED APPELLANT BENEFIT OF THE PRESUMPTION OF CHILD’S INCAPACITY TO COMMIT CRIME.
VI
INSTRUCTIONS WERE INCONSISTENT AND INHARMONIOUS.
VII
TESTIMONY OF NON-EXPERTS AS TO APPELLANT’S ABILITY TO DISTINGUISH RIGHT FROM WRONG WAS INADMISSIBLE.
VIII
DENIAL OF APPELLANT’S MOTION FOR A DIRECTED VERDICT OF ACQUITTAL WAS ERRONEOUS.

IX

FAILURE TO TRANSFER THE CASE TO JUVENILE COURT WAS ABUSE OF DISCRETION.
X
INSTRUCTION TO THE JURY ON CIRCUMSTANTIAL EVIDENCE WAS ERRONEOUS.

We find no reversible error and affirm.

Perhaps the most critical question in the case arises from incriminating statements made by appellant and admitted into evidence over her objection. This is critical solely because of appellant’s age. Proper consideration of the admission of this evidence requires that the sequence of events leading up to the making of these statements be reviewed.

Brenda Sue Little, wife of Carey and mother of Deborah Lynne (who was called Debbie), was in bed with her husband when she was awakened by an explosion. She discovered that he was severely wounded and jumped out of bed. About that time, Debbie ran into her parents’ bedroom screaming and hollering, and then ran out. Mrs. Little followed, grabbed Debbie and her two brothers, and took them all into the living room, but Debbie ran back into the bedroom, screaming and hollering. Mrs. Little called her father-in-law and Ronnie Tucker, the marshal. She went into the bathroom to get something with which to wipe her husband’s face and Debbie was there, crying but not hysterical. One of the sons found a shotgun shell case in the hallway outside the bedroom door. It was pointed out to Marshal Tucker when he arrived at the Little house and he delivered it to Deputy Sheriff Vines, who came to the house pursuant to a call he received at 4:39 a.m. These two officers started looking for a shotgun and found one in Debbie’s bedroom closet behind some clothing. The bathroom window was open and the screen pushed out. It appeared to Marshal Tucker that it had been pushed out from the inside and another officer said the screen was stretched toward the outside. Tucker found no marks on the muddy outside wall. There were no footprints near the window. The ground was wet and soft. Neither mud nor tracks were found in the bathroom. The back door of the house was locked.

Later, Vines went with Chief Deputy Sheriff Saunders and Deputy Sheriff Vinson to the residence of Mrs. Paul Murray, Deborah’s aunt, where they found Deborah and some of her relatives shooting pool. Saunders and Vinson interviewed Deborah and her brother, in the presence of Vines and of Tucker, who was there when the other officers arrived. Debbie told the officers that she had heard the shot, gotten out of bed, gone to the door, turned on a light, saw her mother coming out of her parents’ bedroom crying, looked in, saw him and almost “went out.” The officers then talked to the victim’s father. They later took a statement from Darlene and Geraldine Dollar and arrested Debbie on the basis of their statements. The arrest was made near noon, without a warrant. The officers had first gone to her grandfather’s home and told him and Mrs. Little they were going to arrest Debbie. When Saunders told Deborah that she would have to come with the officers and would be charged with the death of her father, she seemed upset and said she didn’t want to go. Saunders said that Mrs. Little was upset, too, and that Mrs. Spells comforted Deborah. Deborah was taken in an automobile to the county juvenile home. Mrs. Little did not accompany them, but Mrs. Spells did. Mrs. Little testified that she was not permitted to go, but Saunders testified that she did not ask to be allowed to do so. Mrs. Little said that she realized that she herself was a suspect when the officers questioned her at the hospital to which her husband was taken. When they got into the car, Vinson warned Deborah of her constitutional right to counsel and her privilege against self-incrimination by reading from a card he carried. The officers asked Deborah no specific questions about the crime. When Vinson started to ask Deborah some questions after he had given the warnings, Saunders would not allow him to do so. The officers overheard Deborah say something to Mrs. Spells, with whom she was riding in the back seat, about hating her father and having “done it.” Vinson said that she acted calm and collected. Saunders then advised Deborah not to say anything at all and that she shouldn’t even be talking about the matter.

When they arrived at the juvenile home the officers turned Deborah over to Barbara Bird, a juvenile probation officer, and went to the sheriff’s office and called Deputy Prosecuting Attorney Joe Galloway. Later they met him at the juvenile home. They had purposely delayed going there to make certain that Deborah’s mother could be present before the officers talked to her, and went only when they had been advised that Mrs. Little was there.

Saunders said that Galloway explained Deborah’s rights to Mrs. Little and told her that, in his opinion, they would have to have Mrs. Little’s permission before Deborah’s statement could be taken. He said that Calloway gave the standard warnings that Deborah did not have to make any statement, that she was entitled to an attorney and that if they did not have the money to hire an attorney that one would be appointed free of charge.

Calloway asked Mrs. Little if she wanted to talk to her daughter before he and the officers talked with her. The mother and daughter went into a room where they were alone and they remained there for 10 or 15 minutes. When they returned, Mrs. Little said that Deborah wanted to tell what had happened. Mrs. Little looked as if she had been crying.

Vinson took charge of an interview of Deborah in an office in the juvenile home in the presence of Mrs. Little, Mrs. Bird, Deputy Sheriff Saunders and Deputy Prosecuting Attorney Calloway. Vinson first turned on a tape recorder and repeated the “Miranda warnings,” saying that these were given for both Deborah and her mother. He said that Deborah was calm and collected and paying attention. Neither Deborah nor her mother indicated in any way that either desired the assistance of counsel. Vinson said Deborah gave no indication that she did not desire to make a statement. No one other than Vinson asked any questions.

The tape recording reflects that Vinson first identified everyone present and proceeded to recite warnings about Deborah’s right to assistance of counsel, her right to remain silent, and that anything she said could and would be used against her. Vinson received an affirmative answer when he asked Deborah if she understood. No audible answer of Mrs. Little was recorded. Vinson said that she did respond in the affirmative, but that the recorder had not picked up her low-voiced answer. Vinson then asked Deborah if she wanted to talk to the officers, and when he received an affirmative reply, he confirmed by Deborah that she had previously been warned of her rights. He also confirmed the fact that Mrs. Little had conferred with Deborah before the interview.

Vinson then asked Deborah to explain everything that happened after 4:00 a.m. She then narrated what had happened from the time she had awakened early in the morning until she was brought to the juvenile home. She said that when she had awakened she got the gun out of her closet where she had hidden it, loaded it, went into the hall, closed her brothers’ bedroom door, went and opened a window screen to make it appear that someone else was the perpetrator of the crime, went back into the hall, pulled the trigger, shot her father, ran with the gun, forgetting to pick up the shell, hid the gun in her closet and got back in her bed. She then got up, met her mother coming out of the bedroom and started “screaming and squalling.” After Deborah completed her narration, Vinson asked her if she had planned this and if she had told anyone what she was going to do. She said that she had told her friends Darlene and Geraldine Dollar and that the three had planned to leave home, but she was planning to kill her father before they left. The interview was concluded at 4:27 p.m. It had lasted seven minutes.

Barbara Bird testified that when the officers brought Deborah to the youth home, they explained that, because of her age, they did not think it a good idea to take her to jail and asked her to talk to the girl in order to ascertain her attitude and the risk of her running away. Mrs. Bird understood that she was not to interrogate Deborah. Mrs. Bird took the girl on a tour of the facilities, but asked her no specific questions pertaining to her being charged with the crime or the occurrence in Huttig. Mrs. Bird said that Deborah was calm, able to carry on a normal conversation and did not appear nervous or distraught; that Deborah had been permitted to remain, without restraint, in the reception room, where only a female receptionist was present, until Mrs. Little came; and that after Mrs. Little had talked with her daughter privately, she told Deborah to tell the truth. She said that after Deborah’s statement was made, Mrs. Little asked Calloway what she should do and he responded, “Definitely, get an attorney.”

Calloway testified that Mrs. Little did not indicate at any time or in any way that Deborah should not talk to the police or that she desired an opportunity to obtain an attorney before the police talked to Deborah, even though he advised her that she had this right. No one had asked Deborah if she wanted an attorney.

Mrs. Little testified that in spite of the fact that the possibility of the appointment of an attorney was mentioned, she did not know what to do, being in shock and under sedation. She said that Deborah was sedated by five milligrams of Valium, some of which was given her by Linda Bussey and the remainder left for her at the home by Mrs. Little’s brother-in-law Paul Murray. Mrs. Little said she knew that Deborah had taken the medication because she became calm. She also said that she had left the medicine with the house mother at the juvenile home. She testified that she was advised by Calloway that if she did not have the means to hire a lawyer, he could get the “State” to appoint one, and that she had told Calloway that she’d get her own lawyer. She admitted that she had encouraged Debbie to tell the truth and that she understood “our” rights and knew that she could get her own attorney before the statement was made.

Mrs. Tommy Dumas, Deborah’s maternal grandmother, testified that between 10:00 and 11:00 a.m. on January 16 at the Murray residence, she had given Deborah two tiny white tablets that Mrs. Bussey had given her, but did not know what they were. She said that Debbie was nervous and distraught when she was given the pills, but thereafter she appeared to regain her composure and took a short nap for 20 or 25 minutes until Mrs. Dollar came over, awakened Deborah and took her to the Dollar residence. She said that Deborah complained of being dizzy when she awakened, and that even though her words wouldn’t come out distinctly, Mrs. Dumas had no difficulty in understanding her. According to Mrs. Dumas, when Deborah returned from the Dollar home, she was moody. Mrs. Dumas said that she asked to be permitted to go along when Deborah was arrested, but was refused permission.

The officers denied any knowledge of Deborah’s having taken any medication. They said that no inquiry was made to determine whether Deborah had taken any medication. No one says that they had been informed of this fact, or that there was any real indication of medication when the statement was taken that would have prompted any inquiry along this line. The “house nurse” at Huttig had told Saunders at the Little residence that morning that she had given Mrs. Little something to calm her nerves, but did not say that she had given Deborah anything. No one suggests that there were any threats, promises, offers or suggestions of leniency, plea bargains, or other inducements to Deborah’s making a statement. Those present positively deny that there were.

A psychiatrist who had observed and examined Deborah at the Arkansas State Hospital testified. He had conducted psychiatric interviews and psychological examinations. He had no difficulty communicating with Deborah and said that she seemed anxious to tell her story. He said that after 30 minutes’ interview, Deborah asked him if he did not want to know why she was there. He found no sign of physical or mental defect, organic brain disease or brain trouble. Although he found her intelligence quotient to be in the low dull normal range, he said that such a person can get along fairly well in everyday living situations and that she would have the ability to understand statements made to her concerning her rights and, in his opinion, she could understand rights as contained in the “Miranda warnings,” but admitted that there was no way for him to know that she did understand. He felt that it was unlikely that her will could be overborne. Her obesity indicated basic insecurity and inadequacy to this psychiatrist. He said that this would make her fearful of doing the wrong things. He said that Deborah told him that she had wanted to do what she had done for a long time, that she had planned it and had taken the gun and shell from her father’s room some three or four days prior to the killing.

A psychiatrist at the South Arkansas Regional Health Center testified that he had done research into the effects of the drug called Valium, which he described as a prescription drug known as an anxiety reducing drug. He said that it came in four different forms, each colored differently. The white tablet is two milligrams. He doubted that two of them taken simultaneously would have any effect at all. He said that he seldom used these tablets because they were so weak, but that they might reduce a very minor amount of anxiety. According to him, this drug relieves anxiety, probably by relaxing muscles, but without causing sleepiness, or “messing up” the clearness of the thinking processes. He said that the action or the oral medication lasts a little longer than two to three hours, that one-half of it is eliminated from the body within four or five hours; and, after five or six hours, approximately one-half of its effect has worn off, though it could possibly have some effect for ten or twelve hours. He testified that unless Valium was given in dosages of more than 50 milligrams, one would be unable to overcome the will of the person to whom it was given. In his opinion, one would not be more subject to enticement or to being misled as a result of taking Valium. In response to a hypothetical question, he expressed the opinion that two of the tablets taken at the time they were said to have been given Deborah would have had no effect on anyone’s thought processes at the time Deborah gave her statement and the person so administered the medication would have no difficulty in understanding someone advising him of his legal rights. He acknowledged that different persons reacted differently to different drugs.

Linda Bussey, a licensed practical nurse, who was industrial nurse for Olin Kraft in Huttig was called to administer first aid to Carey Dean Little. She knew Deborah Little, Mrs. Dumas and the Murrays. About noon on the day of the crime she gave medication to the victim’s mother. The next morning she gave Brenda Little medication to calm her down by intramuscular injection. The medication was prescribed by physicians. She said that she did not leave any Valium or white tablets of any kind on either occasion. She further stated that she was not asked for administration of any kind of medication by any other member of the family and denied that Paul Murray requested any type of medication for appellant. She positively denied administering any medication, orally or intravenously, to Deborah. She said that she did not keep Valium, or any type of tranquilizer at her office. She related that Mrs. Murray had called before she came to testify and tried to make her remember giving some white tablets to Murray to give Debbie but said that she told Mrs. Murray that she did not do so and would have to say that she did not. She admitted that she had a prescription for Valium for her own use and probably had some yellow, five milligram tablets at her home on the days she went to give medication to the ladies.

Paul Murray testified that when he came home from the hospital and said that Little had died, Debbie became very upset, and that he called Mrs. Bussey," who said that she might be able to give him something for her. He said he went to her house around 7:00 a.m. and she came to the door and gave him four white pills, saying that he should give Debbie two then and two later. He said that Mrs. Bussey told him the pills were not very strong, no stronger than aspirin, and something like Tylenol. According to him, they probably were Tylenol. He had no difficulty communicating with Deborah.

Mrs. Paul Murray testified that she saw her mother give Deborah two pills. She said that Deborah seemed relaxed, but told her that she was dizzy. She testified that she had talked with Deborah after the latter had talked to the police. She said that Deborah just broke down and told her “she had done it” but that she didn’t know why, and that she also made the remark that she had pushed the screen out of the bathroom window. Mrs. Murray said that “She hates that she has done it to a certain extent.”

Deborah did not testify at the hearing on the motion to suppress the confessions. Mrs. Spells testified at the trial but not at the suppression hearing;. She said that Deborah’s statements in the automobile followed the officer’s asking Deborah if she wanted to say anything concerning what had happened. She said that Deborah first said no, then said yes. She said that Deborah was calm on the way to El Dorado. She also stated that the officers would not permit Mrs. Little or any other member of the family to accompany Deborah to El Dorado when she was arrested.

Martha June Holdredge testified at the trial. She was a house mother at the juvenile house, where Deborah stayed about four months. She sat with Deborah 24 hours a day. She said Deborah would sit and hold her hand all day and was frightened at night. Mrs. Holdredge would hold Deborah’s hand at night. Sometimes Deborah would sleep on a pallet in the house mother’s room. After the two got acquainted, Deborah told Mrs. Holdredge that she had killed her father and that she had hated him because of his drinking and because he had made sexual advances toward her and she feared a sexual attack by him. According to this witness, Deborah told of hiding the gun in her closet, of getting up, shooting him, going back to bed, getting up again, looking at him and becoming hysterical. She said that she developed a close relationship with Deborah and that Deborah was very cooperative.

Appellant not only relies upon her immaturity, but seems to view the evidence in the light most favorable to her. We find no basis for rejecting the officer’s testimony that they did not interrogate Deborah while she was in the automobile or the testimony of the psychiatrist that Deborah was capable of understanding an explanation of her rights. Mrs. Spells did not testify at the suppression hearing. The extreme care taken by the officers to avoid putting Deborah in the jail and to await her mother’s arrival before she was questioned certainly indicates that they would not be less cautious while riding in the automobile with a family friend present. Although the youth of the maker is an important consideration, we have never held that it is a sufficient basis for exclusion of an incriminating statement, even when given without the advice of a parent or counsel. Jackson v. State, 249 Ark. 653, 460 S.W. 2d 319; Tucker v. State, 261 Ark. 505, 549 S.W. 2d 285; Mosley v. State, 246 Ark. 358, 438 S.W. 2d 311. In these cases, as in others, we look to the totality of the circumstances. Tucker v. State, supra; Watson v. State, 255 Ark. 631, 501 S.W. 2d 609.

Viewing the totality of the circumstances, it appears that Deborah had a compulsion to tell anyone who would listen what she had done. It would be difficult to say whether she was motivated by the rancor of hatred, pride in her accomplishment or a sense of guilt that compelled her to confess. Whatever motivated her, she seemed ready, willing and anxious to tell of her crime. She confessed at least four time to adults and had told her two friends and schoolmates, the Dollar girls, of her intention and showed them the gun she intended using. Once she realized that her concocted version of the episode was discredited, it probably would have been difficult to have kept her from telling those in authority and impossible to keep her from telling others. Even though appellant was classified as of “dull normal” intelligence she was not even mildly mentally retarded. The very deliberate planning and careful execution of the crime, and of her first version of it were indicative of a mental capacity beyond infancy and imbecility. The statement in the automobile appears to have been spontaneous and voluntary.

Spontaneous statements are not to be excluded. See Chenault v. State, 253 Ark. 144, 484 S.W. 2d 887. The real question, especially when warnings mandated by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, 10 ALR 3d 974 (1966), are effectively communicated, is “Is the confession the product of an essentially free and unconstrained choice by its maker?” “If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of the confession offends due process.” Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973).

The taped confession was a record of the entire interview. The argument that it was inadmissible is based upon her immature age, the alleged taint of the prior statement made in the automobile, the brevity of the conversation with her mother, and the fact that Deborah was held in an atmosphere that had the appearance of a regular home and was taken by the probation officer on a tour of it during which the officer talked to her about “boys and boy friends” and “girl things.” Appellant advances the novel argument that the net effect of this treatment was to lull her into a sense of security and well being that she would not have felt had she been incarcerated in the Union County jail, so that when she was confronted with two deputy sheriffs, a deputy prosecuting attorney and the probation officers, none of whom were in uniform, her will was overborne and her confession was not the product of her free will.

Perhaps appellant’s argument would be entitled to greater weight had the interrogation been in the ordinary jail atmosphere by uniformed officers, before her mother arrived, after having been held in jail alone for some hours. We find nothing coercive in the atmosphere in which the statements were taken or in the procedures followed after Deborah was taken to the juvenile home.

It is also urged that the confession to the house mother was involuntary because the state failed to show the circumstances surrounding it. We think the uncontradicted testimony of the witness herself constitued an adequate statement of circumstances to permit admission of the testimony, unless it be inadmissible for other reasons. In advancing this argument appellant compares the juvenile home to a jail, rather than a place with a “homey” atmosphere, and the house mother to a jailer. Reliance, however, is placed upon Vault v. State, 256 Ark. 343, 507 S.W. 2d 111 where the statement of a 16-year-old youth was given to officers shortly after his lawyer had left the jail where he was incarcerated, after having been present during two lineups. In this case, the only showing that an attorney had been retained was the appearance of appellant’s counsel at a preliminary hearing. But Vault and other cases are based upon an inhibition against interviews of persons charged and held in custody, without giving retained counsel an opportunity to be present. In Vault we said that we would not go so far as to hold that a confession by a prisoner in jail can never be voluntary and admissible. The only objection offered in the trial court to this testimony was the absence of counsel. To hold that this statement was inadmissible would mean that any spontaneous statement made in custody in the absence of counsel was inadmissible.

In spite of the age of appellant, we are unable to say, when we consider the totality of the circumstances that any of the incriminating statements made by appellant were the product of an overborne will. Insofar as the effects of medication are concerned the evidence that any had been administered is far from convincing. We cannot find sufficient evidence that there was an indication of this condition which would have required further inquiry or greater caution by the officers. See Cox v. State, 240 Ark. 911, 405 S.W. 2d 937. It must be kept in mind that interviews of suspects, even minors, are normal and proper in police investigations of crime and the only purpose of the exclusionary rule is to restrain improper police action. We certainly are unable to say that the trial judge’s findings of voluntariness were clearly against the preponderance of the evidence.

Appellant also contends that the instructions given relating to the burden of proof to rebut the presumption of her criminal incapacity were erroneous. This argument is first premised upon the assumption that Deborah was less than 14 years of age. Her counsel refers to her as a 13-year-old girl throughout appellant’s brief. In spite of her mother’s testimony about her birth date, it is obvious that there was a basis for submitting instructions on the question. In order to put this question in proper perspective, it is necessary that we set out the instructions given, the objections made and the instructions requested by appellant and refused. The following were given, over objections stated:

COURT INSTRUCTION NO. 13
You are instructed that our law presumes that a person between the ages of twelve and fourteen years is incapable of committing a crime or of discerning the difference between good and evil, or right from wrong, if you prefer, until the contrary be affirmatively shown by clear and convincing evidence.
*** Counsel for the defendant objects to the court’s giving of the Court’s Instruction No. 13 placing the burden of proof of insanity on the defendant and requiring that the defendant prove insanity by a preponderance of the evidence on the grounds that this instruction does not give effect to the Arkansas Statute which specifically states that a person is not considered sane until the age of fourteen, and that there is no presumption of sanity prior to that age. The evidence shows that the defendant was 13 at the time of the act; therefore, there is no presumption of sanity, no burden on the defendant to prove insanity by a preponderance of the evidence.
COURT INSTRUCTION NO. 13-A
If you are not so convinced by clear and affirmative evidence, it is your duty to acquit the defendant. However, should the State meet its burden in this regard, it would then become your duty to consider the defense offered by the defendant of insanity at the time of the commission of the crime. In that event, you are instructed that the law would then presume that she was sane and that she intended the ordinary and natural consequences of her act and the burden would then be upon her to prove by a preponderance of the evidence at the time of the commission of the killing that she was insane. If she proves to you that she was insane at the time the offense was committed, it would be your duty to find her not guilty by reason of insanity.
Counsel for the defendant objects to the giving of Court Instruction No. 13-A on the grounds that it eliminates one of the defenses in this case which is that a person between the ages of 12 and 14 is incapable of committing a crime and on the grounds that it places the burden of this defense on the defendant rather than on the State and also on the grounds that the instruction is contrary to the Court Instruction No. 13 and it is confusing to the jury. Defendant’s Requested Instruction No. 1 is not given.

The following was requested and refused:

DEFENDANT’S REQUESTED INSTRUCTION NO. 2
You are instructed that in this state the law presumes that a child under fourteen (14) years of age is incapable of committing a crime, and that such a child cannot distinguish right from wrong. The defendant in this case is entitled to the benefit of this presumption and this presumption is sufficient to justify an acquittal in this case unless and until overcome by evidence which convinces you beyond a reasonable doubt that the defendant, Deborah Lynne Little, had the mental capacity and maturity to distinguish between right and wrong and to form the criminal intent necessary to commit the crime with which she is charged.
Counsel for the defendant objects to the failure of the court to give defendant’s requested instruction No. 2 on the grounds that the court has used less than the requirement that the State must prove that the defendant knows the difference between right and wrong and good and evil beyond a reasonable doubt and has required the State to prove something less than this issue, beyond a reasonable doubt.

We have some difficulty in relating some of appellant’s arguments here to the objections made in the trial court. She relies upon our holding that, under the common law, one 13 years of age is presumed to be incapable of committing a crime and that this presumption prevails until the state shows that he had the mental capacity and intelligence to know right from wrong in reference to the offense with which he was charged. Harrison v. State, 72 Ark. 117, 78 S.W. 763. Appellant also points out that we have held that: the presumption against the capability of discerning between good and evil prevails until the contrary is shown affirmatively by the evidence, Dove v. State, 37 Ark. 261 (see also, Allenv. U.S., 150 U.S. 551, 14 S. Ct. 496, 37 L. Ed. 1179); and that this evidence must clearly establish that one aged 13 understood the nature and consequences of the offense charged, Garner v. State, 97 Ark. 63, 132 S.W. 1010, Ann. Cas. 1912C 1059. This is substantially what the jury was told by instruction No. 13.

It takes a strained reading of this instruction to find the ambiguity suggested by appellant, i.e., that the jury could believe that appellant was incapable of discerning right from wrong but capable of committing a crime. The objection made does not seem to reac h this alleged flaw because of the use of the word “or.” A specific objection along the lines now argued would have been calculated to produce a minor correction to remove it.

Instructions are to be read and construed reasonably. Arnott v. State, 109 Ark. 378, 159 S.W. 1105. It is at least as reasonable to say that instruction No. 13 as given required that the state show two independent factors, i.e., (1) that Deborah was capable of committing a crime and (2) was capable of distinguishing right from wrong or good from evil, because the presumption stated is that one of that age was presumed to be incapable of either committing a crime or distinguishing right from wrong. This interpretation would be more favorable to appellant than the law requires. See Harrison v. State, supra. But in any event, we do not think the instruction was misleading in that respect.

As appellant points out, the common law presumption that one under 14 but over 13 years of age does not have the capacity to commit a crime is rebuttable, and the burden is on the prosecution to clearly establish his capability of appreciating the nature of his acts, but the strength of the presumption varies with the actual age of the child and decreases as the upper limit is reached. To require this presumption to be rebutted beyond a reasonable doubt in a case where the minor’s age is near 14 is hardly consistent with the common law rules. The court’s instruction No. 13 requires the quantum of evidence required by the Arkansas cases. Garner v. State, supra.

Appellant also contends that she was deprived of the benefits of Ark. Stat. Ann. § 41-111 (Repl. 1964) by the court’s instructions 13 and 13-A. We do not agree. The section related to the presumption of sanity. It reads:

“A person shall be considered of sound mind who is neither an idiot nor a lunatic, or affected with insanity and hath arrived at the age of fourteen (14) years, or before that age, if such person know the distinction between good and evil.”

The single simple requirement of that section is that one under the age of 14 years is to be presumed sane if that person knows the distinction between good and evil. Thus, when and if it was shown by the state that Deborah did have the ability to distinguish between good and evil, the presumption of sanity comes into play, just as if she had been 15, 18, or 21 years of age or older, and this was recognized by instructions 13 and 13-A.

We do not agree that the essence of appellant’s requested instruction No. 2 was not covered by the court’s instructions 13 and 13-A. It, however, would have required the state to prove appellant’s capacity to commit a crime and to distinguish between right and wrong and to form the criminal intent necessary to commit the crime. But the state was only required to show that Deborah had the mental capacity to know right from wrong in reference to the offense with which she was charged or the nature of the charge and its consequences, and, for the presumption of sanity to come into play, to know the distinction between good and evil. This statute does not govern the ultimate determination of the mental capacity to commit a crime. It only affects the burden of proof by establishing a rebuttable presumption, and it is not necessary that a fact which creates a presumption be proved beyond a reasonable doubt. It is only the essential elements of the crime that go to guilt or innocence that must be proved beyond a reasonable doubt. Dillard v. State, 260 Ark. 743, 543 S.W. 2d 925. The different facts and items of evidence that go to establish guilt do not have to be shown beyond a reasonable doubt, if the evidence on the whole case convinces the jury beyond a reasonable doubt of accused’s guilt. Butt v. State, 81 Ark. 173, 98 S.W. 723, 118 Am. St. Rep. 42; Starnes v. State, 128 Ark. 302, 194 S.W. 506; Martin v. State, 163 Ark. 103, 259 S.W. 6, 33 ALR 133.

It should be noted that the trial court gave the usual instructions on presumption of innocence, the necessity for the state to prove her guilt beyond a reasonable doubt, the requirement of a specific intent to take life and insanity as a defense. Because of its close relationship to the matter of presumption of sanity, we quote the last named instruction, viz:

COURT INSTRUCTION NO. 14
You are instructed that before insanity can be a defense, it is necessary for you to believe, by a preponderance of the evidence, first, that at the time of the alleged crime the defendant was under such a defect of reason from disease of the mind as not to know the nature and quality of the act she was doing, or, second, if she did know it, that she did not know that she was doing what was wrong, or, third, if she knew the nature and quality of the act and knew that it was wrong, that she was under such duress of mental disease as to be incapable of choosing between right and wrong as to the act done and unable, because of the disease, to resist the doing of the wrong act which was the result solely of her mental disease.

Appellant is in no position to complain of the failure of the trial court to give her requested instruction No. 2, particularly in view of the instructions given, because it was not a correct declaration of the law, as we have pointed out. State v. State, 194 Ark. 497, 108 S.W. 2d 474.

Appellant argues that the court erred in permitting witnesses for the state to testify about her ability to distinguish right from wrong. Specifically, she points out the testimony of City Marshal Ronnie Tucker and of Mrs. Adrian Spells, Darlene Dollar and Martha June Holdredge.

Tucker stated that he had known Deborah all her life, that he had occasion to personally observe, watch, and see and talk to Deborah, that he watched her as a kid in a small town in different situations, that he had occasion to be in the Little home in more than one instance in the line of duty, and that he arrived at the opinion that she knew right from wrong from seeing her playing around the street.

Mrs. Adrian Spells had been a next-door neighbor of the Littles for three years and was a “real good” friend of the family, her children were playmates and friends of Deborah and she saw Deborah every day and talked with her sometimes. She had moved away about a year prior to the death of Little, but Deborah would come to her house and the children would play. She had the opportunity to observe Deborah’s general nature, habits and disposition and said that the girl “acted normal” and that she thought Debbie knew right from wrong.

Darlene Dollar went to school with Deborah and they were close friends. She noticed Deborah’s behavior in classes and formed an opinion as to whether Deborah knew right from wrong or good from evil. She expressed that opinion by saying, “It looks like she would have known right from wrong. She didn’t get into too much trouble in school.”

The close association and relationship of Martha June Holdredge over a total of four months has already been related. She thought Deborah could discern good from evil.

We cannot say that the court erred in holding that each of these witnesses had sufficient opportunity to associate with and observe Deborah to form an opinion as to her ability in this regard. These opinions did not relate to Deborah’s overall sanity or to her capacity to resist a propensity or temptation to commit the crime, but simply to her ability to distinguish between right and wrong or good and evil. Still, the rules governing admissibility of testimony of these analogous issues should be similar. Carr v. State, 24 Tex. App. 562, 7 S.W. 328 (1888). But appellant made her sanity an issue. Non-expert testimony is admissible on the ability of an accused to distinguish between right and wrong, if the proper foundation is laid. Hill v. State, 249 Ark. 42, 458 S.W. 2d 45.

The admissibility of testimony of non-expert witnesses on such subjects lies within the sound judicial discretion of the trial court, and its decision will not be reversed unless it is clearly wrong. Raprich v. State, 192 Ark. 1130, 97 S.W. 2d 429; Davis v. State, 182 Ark. 123, 30 S.W. 2d 830. In Raprich we said:

While the testimony is not entirely satisfactory, we are unable to say that the trial court abused the discretion he was required to exercise in passing upon the preliminary question of the competency of the testimony.
‘ff Iff iff Iff Iff
*** Such witness must show that he possesses such qualifications as to be of some assistance, and when that showing is made the decision of the trial court will not be reversed unless it clearly appears to be wrong. ifc jf{ iff ]|(
In Smoot on Insanity (section 597), in discussing the question of the competency oí nonexperts, it is said: “Just what amount of knowledge and acquaintance is necessary to qualify such a witness is largely governed by the facts of each case, and within the sound discretion of the trial judge, who may declare the witness incompetent where the preliminary examination shows the facts are insufficient to qualify the witness to express an opinion. But where such witness shows any reasonable opportunity to acquire knowledge of the subject’s sanity through observation and association, and is able to state any facts upon which to predicate an opinion, the meagerness of such facts goes rather to the weight to be given the opinion than to its admissibility; and the opinion formed at the time, with the facts upon which it is based, should go to the jury for what it is worth. The weight to be given to such testimony is exclusively within the province of the jury, if the facts upon which the opinion is founded themselves tend to show sanity or insanity.” See, also, Vol. II Wharton’s Criminal Evidence (11th Ed.) p. 1746.

We cannot say that there was an abuse of the trial court’s discretion here. We do not think that Shaeffer v. State, 61 Ark. 241, 32 S.W. 679, relied upon by appellant is applicable here. In Shaeffer, the witnesses were asked whether, from their observation and the acts they detailed, the defendant would have sufficient mental power to keep from committing the crime, assuming that he could distinguish between right and wrong as to the crime charged. The evidence was held inadmissible because none of the witnesses showed any opportunity to know the defendant’s capacity to resist the propensity or temptation to commit the crime. The witnesses had stated their opinions as to the capacity of the accused to distinguish between right and wrong and this testimony was not held inadmissible.

Appellant asserts that the court erred in denying her motion for a directed verdict because there was no substantial evidence that she was able to distinguish right from wrong with respect to the offense with which she was charged. It is conceded that a psychiatrist stated the opinion of the state hospital that this young lady did know right from wrong and was able to conduct herself to adhere to the right. But appellant points out that the burden was on the state to prove that Deborah knew right from wrong in reference to the offense with which she was charged. The requisite capacity, however, can be determined from the facts and circumstances of the killing and the conduct of the defendant with reference thereto. Kear v. State, 84 Ark. 146, 104 S.W. 1097. The circumstances here and the conduct of appellant afforded substantial evidence on this score.

Appellant also contends that the trial court abused its discretion by failing to transfer this case to juvenile court. The basis of the argument is her age and evidence qf emotional and mental immaturity. Because of this and the liberal construction to be accorded to the act of which Ark. Stat. Ann. §§ 45-420 (Supp. 1975) [Acts 1975, no. 451; § 20, eff. July 1, 1975] and 45-241 (Rep!. 1964) are a part, she says that the trial court abused its discretion. There is a great emotional appeal in this sort of argument and decisions that trial judges must make are difficult ones. In order to say that there was an abuse of discretion we would have to say that the trial judge acted arbitrarily and capriciously. This we cannot do. At the time the motion to transfer was denied, the trial judge had conducted an extensive Denno hearing, which gave him a basis for the exercise of sound judicial discretion.

Appellant suggests that somehow an abuse of the court’s discretion is indicated by the fact that only a few weeks after her trial, a statute was enacted which would have placed exclusive jurisdiction of the offense, committed by a minor under the age of 15 years, in the juvenile court. Ark. Stat. Ann. § 41-617 (Grim. Code 1976). It is admitted the act did not apply. It is not indicative to us of an abuse of discretion. This argument would better be advanced to the executive branch.

Lastly, appellant argues that in the instruction on circumstantial evidence, the court used the word “should” instead of “must” in telling the jury that the circumstances should point to and be consistent with her guilt but should be inconsistent with any other reasonable hypothesis. Use of the word “must” would have been preferable, but we do not see how the jury could have been misled. The words are often synonymous. Rodale, The Synonym Finder, Special DeLuxe Edition, p. 780. It is also significant that there was both circumstantial and direct evidence in this case and the choice of the word used was really less significant than it would be if the State relied solely upon circumstantial evidence. Appellant’s argument, that the effect of the direct evidence cannot be considered in viewing the instruction because the jury was not told that it could convict on circumstantial and positive evidence, although it was made clear that it could convict on circumstantial or direct evidence, is not persuasive.

Although we do not take the instructions given to be inconsistent or inharmonious, we have not treated this argument in this opinion, because no such objection was made in the trial court.

The judgment is affirmed.

We agree. Harris, C.J., and George Rose Smith and Byrd, JJ.


source: Caselaw Access Project

author: John A. Fogleman, Justice.

license: Public Domain

text:
    Ronald Erwin GOLF v. STATE of Arkansas
    CR 77-15
    552 S.W. 2d 236
    Opinion delivered June 27, 1977
    (In Banc)

      Harold L. Hall, Public Defender, by: John W. Achor, Chief Dep. Public Defender, for appellant.

      Bill Clinton, Atty. Gen., by. Joseph H. Purvis, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

This case was submitted as a “no-merit” appeal pursuant to Rule 11 (h) and the doctrine of Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). After the submission of the case, we requested that counsel submit briefs on the question whether the trial court committed reversible error in declining to answer the jury’s questions about specific testimony, in view of Ark. Stat. Ann. § 43-2139 (Repl. 1964), without inquiring as to the purpose of the jury’s request. The briefs have been submitted and the case has been considered on that point only. We find reversible error.

Appellant was sentenced to ten years in the penitentiary for the crime of sodomy. He was represented at the trial by employed counsel. The Public Defender for the Sixth Judicial District was appointed to represent appellant on appeal. After the jury had deliberated for nearly three hours, it returned into open court at 4:30 p.m. and reported that it was unable to reach a unanimous verdict. The jury was then excused with instructions to return at 9:30 a.m. the following day. At that time the record shows that the defendant was present but his attorney was not. The record discloses the following proceedings at that time:

THE COURT:
There are questions that need to be asked?

MR. THOMASON, FOREMAN:

Yes sir. One specific question is some of the jurors would like a definition of reasonable doubt and some of the other jurors have specific questions about testimony that they would like to ask.
THE COURT:
Now, the questions about the testimony, the time for hearing that has come and gone and you will recall the testimony collectively and we can’t go back and emphasize certain testimony because we can’t run it by you again in the same manner it was run by you the first time.
(At this time, Mr. Wilson entered the courtroom.)
THE COURT:
Mr. Wilson, they have asked about reasonable doubt. Would you object to my giving them the instruction again on reasonable doubt?
MR. WILSON:
No, your Honor, I wouldn’t.
THE COURT:
All right. And then I have, I don’t know whether I should give them this other instruction at this time or not.
MR. WILSON:
I would request that you do not at this time.
After giving the instruction defining reasonable doubt, the court directed the jury to continue its deliberations. The jury retired at 9:38 a.m. and returned with its verdict at 10:15 a.m. There is nothing to indicate that appellant’s attorney ever knew of the jury’s inquiry about testimony or the trial court’s ruling or that appellant had any idea of the significance of these proceedings.
The applicable statute reads as follows:
After the jury retires for deliberation, if there is a disagreement between them as to any part of the evidence, or if they desire to be informed on a point of law, they must require the officer to conduct them into court. Upon their being brought into court, the information required must be given in the presence of, or after notice to, the counsel of the parties.

We have held that the provisions of the statute are mandatory, and that, where the facts call for an application of its provisions, unless the rulings of the court comply with the statute, they will constitute prejudicial error, but such a manifest error may be corrected by repetition of the communication in the presence of the entire jury and counsel in the court room before the verdict is received to such an extent that counsel knows what had taken place and has the opportunity to object. Rollie v. State, 236 Ark. 853, 370 S.W. 2d 188; Aydelotte v. State, 177 Ark. 595, 281 S.W. 369. The importance of the presence of counsel during such proceedings has been emphasized. See Hinson v. State, 133 Ark. 149, 201 S.W. 811. in Rollie, we said:

This statute requires in unambiguous language that the entire jury and no less a number thereof must be present before the Court and counsel for the parties, or notice given to counsel, upon any proceeding affecting the rights of the defendant or the State as defined in this statute. Its provisions are mandatory. ***

In Aydelotle, we said:

*** The design of the lawmakers in the enactment of this statute was to protect defendants on trial as well as the state, after causes have been finally submitted to the jury for its deliberation and verdict, against any further steps being taken in the case in regard to the evidence or the law, unless in open court and after notice to the counsel of the respective parties. ***

It is unnecessary for us to decide on this appeal whether the court’s answer to the inquiry could have been correct under the circumstances because appellant’s counsel had no opportunity to object and there is no indication that appellant had the slightest idea he had any right to make an objection. Hopkins v. State, 174 Ark. 391, 295 S.W. 361; Hinson v. State, supra; Durham v. State, 179 Ark. 507, 16 S.W. 2d 991. Furthermore, the failure to object to the procedure or ruling of the court is not a waiver except when it is clear that the erroneous proceeding is discovered in time to correct any error, especially when the court’s action is correct. Rollie v. State, supra; Wawak v. State, 170 Ark. 329, 279 S.W. 997.

It is sufficient to say that the presence of counsel was mandatory and there is no basis for holding that there was a waiver of defendant’s right to have his attorney present or to object to the ruling of the court. We need not say, in this case, whether the trial court has some latitude of discretion in the matter or whether, when there is a disagreement among the jurors, the court must allow the testimony in question to be read to the jury, because the matter is not likely to arise on a new trial. It is sufficient to say that it can be done at the request of the jury, and to that extent the statement made by the judge was incorrect on its face. Bradshaw v. State, 211 Ark. 189, 199 S.W. 2d 747; Bennefield v. State, 62 Ark. 365, 35 S.W. 790 (overruled on another point), Tallman v. State, 151 Ark. 108, 235 S.W. 389, dissenting opinion, 236 S.W. 281). We cannot say that the court, in this case, exercised any discretion in the matter, because no inquiry was made as to the specific questions the jurors had about the testimony and further inquiry by the jurors was effectively foreclosed by the court’s ruling. If counsel had been present or had known that the question had been raised, he could have at least asked the trial court to pursue the matter.

Since prejudice is to be presumed when the statute is not followed and there is nothing to indicate any waiver on the part of the defendant or his attorney, we must, with regret, reverse the judgment and remand the case for a new trial.

       It should be noted that the matter of additional instructions is now covered by Rule 33.4, Rules of Criminal Procedure. Otherwise, this statute remains in full force and effect.


author: Frank Holt, Justice.

text:
    Myrtle RICHARDS v. WORTHEN BANK & TRUST COMPANY
    77-40
    552 S.W. 2d 228
    Opinion delivered June 27, 1977
    (Division I)

      Guy H. Jones, Phil Stratton, Guy H. Jones Jr. and Casey Jones, by: Phil Stratton, for appellant.

      Rose, Mash, Williamson, Carroll, Clay & Giroir, by: Stanley E. Price, for appellee.
   Frank Holt, Justice.

This appeal involves the validity of an inter vivos trust created by Garland Richards (deceased) for the benefit of his wife, the appellant. After Garland’s death in 1973, his will, which predated the inter vivos trust, was filed for probate and appellant filed an election to take against the will. Appellant then sought a declaratory judgment to the effect that the inter vivos trust was invalid. The chancellor upheld the trust. For reversal appellant first argues that the chancellor erred in refusing to sustain her allegations that the inter vivos trust was testamentary in character or was an illusory scheme or device to defeat the appellant’s marital rights. The chancellor was correct.

On September 30, 1970, Richards created the inter vivos trust, naming appellee as trustee and provided $10,440 funding for the trust out of a checking account held jointly with his wife and her sister. Additional funding totaling $7,000 also originated from their joint account. Other funding of the trust came from Garland’s own property, bringing the total value of the trust res to $43,439.51. According to the pertinent terms of the trust, the trustee would distribute the net income from the trust res to the settlor, Garland Richards, during his life. After Garland’s death, the net income would be distributed to appellant, his wife, together with as much of the corpus as might be necessary for her care and comfort. Any assets remaining at appellant’s death would then go to certain of their named relatives in equal shares. Appellant argues that, by Garland reserving the income to himself for life and reserving the power to revoke the trust or withdraw the trust property, the trust is rendered testamentary in nature.

In the absence of a statute to the contrary, a settlor may create a trust for any lawful purpose and the trust may be created for his own benefit as well as the benefit of another. Gall v. Union National Bank, 203 Ark. 1000, 159 S.W. 2d 757 (1942); Murry v. Hale, 203 F. Supp. 583 (1962). A settlor has the power to reserve the right to consume the principal of the trust res or to revoke the trust in whole or in part. Cribbs v. Walker, 74 Ark. 104, 85 S.W. 244 (1905); United Building & Loan Association v. Garrett, 64 F. Supp. 460 (1946); and see also 164 A.L.R. 881.

The general rule is stated in 1 Restatement of Trusts 2d, § 57:

Where an interest is created in a beneficiary other than the settlor, the disposition is not testamentary and invalid for failure to comply with the requirement of the Statute of Wills merely because the settlor reserves a beneficial life interest or because he reserves in addition a power to revoke the trust in whole or in part, and a power to modify the trust, and a power to control the trustee as to the administration of the trust.

See also 76 Am. Jur. 2d, Trusts, § 25. In United Building & Loan Association v. Garrett, supra, the settlor named himself trustee, reserved the income from the trust to himself for life, retained the power to revoke the trust or to withdraw the trust properties. One year after the settlor’s death, the assets were to be distributed to named beneficiaries. The trust was attacked on the ground that it was testamentary and therefore void for noncompliance with the Statute of Wills. The court upheld the validity of the trust stating the test to be:

If by terms of the instrument, an interest passes to the beneficiaries during the life of the settlor, even though possession or enjoyment thereof is postponed until the death of the settlor, the trust is not testamentary.

Here, the trust was created over two years before Garland’s death. At that time an interest was vested in the settlor, the appellant and other named beneficiaries of the trust res. Only the enjoyment of the interests of appellant and the other beneficiaries was delayed until the death of Garland. The settlor was within his legal rights in his reservation of powers and rights. Therefore, we hold that the chancellor was correct in ruling that the inter vivos trust was not testamentary in nature.

Appellant also argues that the inter vivos trust is an illusory scheme or device to defeat the appellant’s marital rights even though no “evil” intent existed. It is true that appellant will immediately receive less from the trust proceeds than if the trust were ruled invalid. However, this is not the test to be applied in determining if a trust is a fraud as to appellant’s marital rights. The important consideration is the settlor’s intent. Potter v. Winter, 280 S.W. 2d 27 (Mo. 1955); Sherill v. Mallicote, 57 Tenn. App. 241, 417 S.W. 2d 798 (1968); Rose v. St. Louis Union Trust Co., 43 Ill. 2d 312, 253 N.E. 2d 417 (1969); and In re Steck’s Estate, 275 Wis. 290, 81 N.W. 2d 729 (1957). Here the settlor was attempting to make adequate arrangements for the care of his wife, whose health was apparently failing. In addition to the provisions of the inter vivos trust, previously recited, Garland’s will left his home to his wife for her life with the remainder to her sister provided she lived with appellant and cared for her for a certain length of time following his demise. The residue of his property went into a testamentary trust from which, after one year, appellant was to receive $300 per month income and additional funds from the principal and earnings of the trust were to be distributed to appellant if necessary for her care. Any assets left in the trust following appellant’s death would be distributed to certain named relatives of each of them. Here it is apparent that Garland’s inter vivos trust was not a scheme or device to defeat his wife’s marital rights. To the contrary, it appears to be an additional provident method of assuring her future care and support. The chancellor was correct in ruling that the trust was not a scheme to defraud appellant of any property rights.

Appellant finally argues that the chancellor erred in approving the transfer of personalty by one tenant by the entirety (her deceased husband) into the inter vivos trust without the consent or knowledge of the other tenant by the entirety (appellant Myrtle). The parties stipulated that $17,440 of the trust res had its origin in a husband-wife joint checking account. A third person, appellant’s sister, was also listed on the account. Any one of the three persons listed on the joint account could have withdrawn all or any part of the funds. Ark. Stat. Ann. § 67-521 (Repl. 1966). As indicated, the funds were not withdrawn for the purpose of defrauding appellant but rather for the beneficient purpose of funding a trust for the assurance of her care and support. There is no evidence that appellant contributed anything to the joint account. The withdrawals were over a period of approximately two and one-half years. Appellant, as a party to the account, had access to the bank’s record or status of the account and is charged with notice of the withdrawals. Porter v. Trainor, 243 Ark. 550, 420 S.W. 2d 860 (1967). Here we agree with the chancellor that the transfer of funds by Garland to the inter vivos trust from a joint banking account was legal and proper.

Affirmed.

We agree: Harris, C.J., and George Rose Smith and Roy, JJ.

       A guardian was appointed for Myrtle eight months after her husband’s death.


author: Elsijane T. Roy, Justice.

text:
    Billy WOODARD v. STATE of Arkansas
    CR 76-50
    553 S.W. 2d 259
    Opinion delivered June 27, 1977
    (In Banc)

      M. Burk Dabney, Jr., for appellant.

      Bill Clinton, Atty. Gen., by: Robert A. Newcomb, Asst. Atty. Gen., for appellee.
   Elsijane T. Roy, Justice.

Appellant Billy Woodard was charged with capital felony murder in violation of Ark. Stat. Ann. § 41-4702 (Supp. 1973). The information charged that appellant on September 3, 1975, while robbing C. M. Baker shot the victim, causing his death. The jury returned a verdict of guilty as charged and after further deliberation determined appellant should be sentenced to death. The court entered judgment accordingly. This appeal is from that judgment and sentence.

The record reflects Baker was a resident of Craighead County, Arkansas. The last day he was seen alive was September 3, 1975. Some hunters discovered his body in the floodway area near Payneway on September 7, and notified the Poinsett County sheriff’s office. An investigation revealed appellant had been at the Baker home on the last day that Baker had been seen there by his wife.

After the body was found appellant was brought to the Craighead County sheriff’s office for questioning on September 7, 1975; a statement was taken from him at that time and he signed a consent for the officers to search his mobile home. A search was conducted and appellant gave the officers a 12 gauge shotgun they found there. He was then released.

More than a month later the crime had not been solved, and on October 10, 1975, appellant again was picked up by the Craighead County sheriff’s department and taken to the sheriff’s office in Jonesboro, where he was fingerprinted and photographed. Craighead County Deputy Sheriff Findley and State Police Investigator Odom drove appellant to the scene where the body was found, and, after being questioned and shown photographs of the deceased, appellant gave a statement to the police officers admitting he had shot and killed the deceased and had taken his billfold which contained about SI60. Officers Odom and Findley, after placing appellant under arrest and charging him with capital felony murder, delivered him to the Poinsett County jail.

On the same day appellant gave another statement to the Poinsett County sheriff’s office which was essentially the same statement as that given to the State Police. On October 11, appellant also made a tape recorded statement which was almost identical to the first two statements. All these statements were admitted over objections at the trial. Appellant took the stand and repudiated all three statements and denied having killed or robbed the deceased.

For reversal appellant first contends the court erred in admitting appellant’s confession taken by officers Odom and Findley on October 10, 1975.

Appellant testified that Findley had contacted him following discovery of Baker’s body and had taken him to the sheriff’s office for questioning around 10:30 a.m. on September 7. He stated he did not fully understand at that time that he either had a right to give a statement or not give a statement as he desired; that, although the sheriff’s department knew he was a diabetic he was refused an insulin shot; and that he arrived at the sheriff’s office about 10:30 a.m. and that he did not have anything to eat or have an insulin shot from that time until a little after 4 p.m. (It is noted appellant made no self-incriminating statement at this time.)

Appellant also testified that on the 10th day of October he was arrested at 7 a.m. and was detained in the Craighead County Sheriff’s office until shortly before noon; that he was photographed and fingerprinted; that he was taken to the place where the victim’s body was discovered and was shown a number of photographs of the victim; that he was also told he might have to stay at the scene all night; and that he was physically abused before*he gave the statement.

The trial court, pursuant to Ark. Stat. Ann. § 43-2105 (Supp. 1975), held the required Denno hearing to consider the circumstances surrounding the giving of appellant’s confessions. Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964). Under this statute it is the duty of the court “ . . . before admitting said confession into evidence to determine by a preponderance of the evidence that the same has been made voluntarily.” Appellee contends the record clearly supports the court’s finding that all these confessions were voluntary.

This Court, in Neal v. State, 259 Ark. 27, 531 S.W. 2d 17 (1975), rehearing denied January 26, 1976, has stated that:

* * * Whenever the voluntariness of a defendant’s confession is disputed on federal constitutional grounds, we make an independent determination from a review of the entire record. Degler v. State, 257 Ark. 388, 517 S.W. 2d 515 (1974); Davis v. North Carolina, 384 U.S. 737, 86 S. Ct. 1761; 16 L. Ed. 2d 895 (1966); and Harris v. State, 244 Ark. 314, 425 S.W. 2d 293 (1968). In doing so, however, we do not set aside a trial court’s finding of voluntariness unless the finding is “clearly erroneous.” Degler v. State, supra. This standard of review is in accord with that of the federal courts. United States v. United States Gypsum Co., 333 U.S. 364 (1948), and Maple Island Farm v. Bitterling, 209 F. 2d 867 (8th Cir. 1954).

At the Demo hearing Officer Odom, the State Police investigator who actually took appellant’s confession on October 10, 1975, testified that by the use of a rights form he advised appellant of all his rights. Odom also testified that appellant then signed the waiver of rights form. Appellant had received an insulin shot about ten o’clock that morning. After fingerprinting appellant, Odom took him and Findley to a restaurant for lunch. After lunch appellant, Findley and Odom left Jonesboro and traveled to the scene of the crime. Appellant had stated he did not object. On arriving at the crime scene appellant was again advised of his rights. After more questioning from the officers Woodard made his first statement. Odom denied he told appellant they were going to question him until he confessed and that to his knowledge no one coerced appellant, promised him anything, intimidated him or beat him to obtain the confession.

Appellant’s confession was very detailed, consisting of ten handwritten pages. It was written by Officer Odom, but each page was signed by appellant and the statement concluded as follows: “All of this statement is true and correct to the best of my knowledge. I make this statement without threats or promises being made to me. ” In the margin of the last page and followed by appellant’s initials is the following statement: “Before making this statement I had been informed of my constitutional rights and understood them.” Odom testified further that he then read the entire statement to appellant and appellant signed each page after some corrections were made. Appellant also read the confession and made some changes in it himself according to Odom.

Deputy Findley testified that on October 10 he stopped appellant’s truck and asked him if he would come to the sheriff’s office, and appellant complied with the request. According to Findley, Odom read appellant his constitutional rights and appellant indicated he understood them. Findley further testified there were no threats, coercion or promises of lenient treatment made to appellant. In addition, Findley denied he or Odom told appellant it would be best for him to make a statement. According to Findley when he, Odom and appellant arrived at the crime scene Odom again advised appellant of his constitutional rights. Contrary to the claims of appellant, Findley denied he physically mistreated appellant. In response to questions by the trial court, Findley denied he or Odom told appellant “if he would sign a confession that he had the easiest out in the world and that [they] would see that he got medical help.”

The trial court found appellant was informed of his constitutional rights, that he knowingly and intelligently waived his right against self-incrimination and that the statement was made voluntarily. We find that the trial court’s determination of voluntariness was not “clearly erroneous. ” Neal, supra, and Degler, supra.

Appellant next urges that the statement given to Sheriff Crawford and Deputy Sheriff Walker later on October 10 and the taped statement given the next day were illegally admitted as evidence. Appellant contends the earlier October 10th statement was involuntary and that consequently the subsequent confessions were also tainted by the same influences and therefore inadmissible.

In Payne v. State, 231 Ark. 727, 332 S.W. 2d 233 (1960), as to the admissibility of confessions we adhered to the rule announced in Love v. State, 22 Ark. 336 (1860), that when the original confession has been made under illegal influence, such influence will be presumed to continue and color all subsequent confessions, unless the contrary is clearly shown.

However, appellant’s reliance upon Payne and other similar citations is misplaced because, as heretofore pointed out, we do not find the first confession was procured by illegal means. Even if we assume the statement given Officers Odom and Findley was involuntary, it does not automatically follow that the subsequent confessions are as a matter of law involuntary.

In Matthews v. State, 261 Ark. 532, 549 S.W. 2d 492 (1977), this Court held:

* * * Whether a confession subsequent to one obtained by unlawful pressure is voluntary depends upon whether an inference as to the continuing effect of the coercive practices may fairly be drawn from the surrounding circumstances and is determined by a conclusion as to whether the accused, at the time of the second confession, was in possession of mental freedom to confess or deny his suspected participation in a crime. The effect of earlier abuse may be so clear as to forbid any inference other than that the later confession is involuntary. On the other hand, one making a confession which is involuntary is not perpetually disabled from making a voluntary confession after the conditions of abuse have been removed. Lapse of time is an important consideration. (Italics supplied.)

In the present case the incriminating statements given by appellant to Sheriff Crawford and Deputy Sheriff Walker were made while he was in possession of the mental freedom to confess or deny his participation in the crime. There had been a lapse of time and change of circumstances since the earlier statement had been given.

After Officers Odom and Findley had taken the confession of appellant at the crime scene they took him to Harrisburg (Poinsett County) and released him into the custody of Sheriff Gerald Crawford of Poinsett County.

Crawford testified at the Denno hearing that after appellant was delivered to the sheriff’s office all of his rights were read to him by either Crawford or his deputy, James Walker. He further testified he did not know appellant had given the previous statement to Craighead County officials when his confession was taken by Poinsett County officers.

Sheriff Crawford testified appellant told him Officers Odom and Findley “were kind of mean to him” and that he (appellant) had rather be locked up in Sheriff Crawford’s jail than in Craighead County; that appellant did not tell him specifically what Odom and Findley allegedly had done but that he saw no bruises on appellant’s face or body.

Deputy Walker stated appellant did not raise any questions about, not Understanding his rights at the time the statement was given; that he appeared to understand his rights; that he had all of his faculties and appeared to be intelligent; that he answered the questions clearly and concisely; and that he freely and voluntarily made the statement. This second statement was almost identical with the earlier statement except it contained even more details.

The testimony of appellant himself at the Demo hearing constituted strong evidence that the confession appellant made to the Poinsett County officers was not made while he was under duress and was not tainted by any previous coercive influences. He testified he was not afraid of Deputy Walker, that he trusted him and that he was not threatened or mistreated by him. He also testified Sheriff Crawford treated him kindly and he was not afraid of Crawford but wanted to get away from the Craighead County officers.

The following morning, October 11, 1975, appellant gave Deputy Walker another statement, which was recorded. Before the statement was given appellant was again advised of his rights. According to Walker, appellant had no objection to making the statement, appeared rested and comfortable and was not threatened, abused or mistreated in any way. At trial appellant objected because the taped statement had not been in Walker’s custody, but Walker testified he had heard the play-back of the tape and that it had not been edited, tampered with or altered in any manner from the time it was made to him until the time of the introduction of the tape in evidence.

For the foregoing reasons we find the trial court did not err in admitting all three of the statements challenged by appellant.

Since the rule excluding witnesses from the courtroom was in effect during the trial, appellant urges the trial court erred in permitting a witness who had been in the courtroom during the proceedings to testify as a rebuttal witness.

At trial appellant took the stand and repudiated all three statements. Also on cross-examination when asked what he told the newspaperman who was taking pictures at the floodway area in Poinsett County appellant stated, “I didn’t tell him nothing.”

The trial judge, in holding Larry Fugate, the reporter, could testify in rebuttal, stated:

it will be the ruling of the Court that the State will be permitted to call the witnesses Larry Fugate and Paul Holmes in rebuttal testimony, the State not having used these witnesses in its case in chief, having presented not one but three separate and independent confessions purportedly made by the defendant. The defendant having taken the stand and testified in his own behalf. I believe the State could not know or anticipate in advance or during its case in chief, the defense did call both of these witnesses in their pre-trial motion in this case and was aware of these witnesses having reported this case extensively at the time of its occurrence. So the defense could hardly be surprised by any knowledge that these witnesses might have. And they being called for the purpose of rebuttal, the necessity of that rebuttal having developed during the cross-examination of the defendant, the objection will be overruled.

We find the trial judge did not abuse his discretion in allowing Fugate to testify. In Williams v. State, 258 Ark. 207, 523 S.W. 2d 377 (1975), this Court stated:

The rule consistently applied by this court is that a violation by a witness of the rule of sequestration of witnesses, through no fault of, or complicity with, the party calling him, should go to the credibility, rather than the competency of the witness. Harris v. State, 171 Ark. 658, 285 S.W. 367; Hellems v. State, 22 Ark. 207; Golden v. State, 19 Ark. 590; Pleasant v. State, 15 Ark. 624. The power to exclude the testimony of a witness who has violated the rule should be rarely exercised. We have been unable to find any case in which this court has sustained the action of a trial court excluding the testimony of such a witness. While the witness is subject to punishment for contempt and the adverse party is free, in argument to the jury, to raise an issue as to his credibility by reason of his conduct, the party, who is innocent of the rule’s violation, should not ordinarily be deprived of his testimony. Harris v. State, supra; Aden v. State, 237 Ark. 789, 376 S.W. 2d 277; Mobley v. State, 251 Ark. 448, 473 S.W. 2d 176.

This Court in Morris v. State, 259 Ark. 755, 536 S.W. 2d 298 (1976), reaffirmed the principle enunciated in Williams, supra.

Fugate testified appellant told “Sheriff Crawford, in my presence, that he threw a billfold, a pair of shoes, and three expended shotgun shells into the water.” His testimony continued:

* * * He said that after he threw the shotgun shells and the shoes and the billfold into the water, he went up on a little hill or clump up north of the cut and slightly west of it and sat there for a while saying something to the effect of what have I done.

Appellant next argues that the trial court erred in including as an aggravating circumstance the question as to whether the capital murder was committed for pecuniary gain after the jury had returned a verdict of guilty to capital felony murder committed in perpetration of robbery.

We find it is within legislative prerogative to determine the factors to be considered by a jury when it decides whether the crime justifies the imposition of death as a sentence or life imprisonment without parole. Guidelines are necessary to enactment of a valid statute. In Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976), in his plurality opinion Justice Stewart stated:

We have long recognized that “[f]or the determination of sentences, justice generally requires . . . that there be taken into account the circumstances of the offense together with the character and propensities of the offender. ” Pennsylvania v. Ashe, 302 U.S. 51, 55, 82 L. Ed. 2d 43, 58 S. Ct. 59 (1937). * * *
* * *
. . . [T]he concerns expressed in Furman that the penalty of death not be imposed in an arbitrary or capricious manner can be met by a carefully drafted statute that insures that the sentencing authority is given adequate information and guidance.

Certainly whether the crime was committed for pecuniary gain is a pertinent and proper factor for the jury’s consideration in determining whether the death sentence should be imposed.

The last point urged by appellant is that the court erred in failing to instruct the jury that it was not necessary to find mitigating circumstances in order to return a verdict of life imprisonment without parole.

Appellant’s position is based on the following episode in the trial. The jury, having found appellant guilty as charged, retired again to determine the imposition of punishment issue and subsequently returned to the courtroom.

JUROR KNIGHT: We have a question.
THE COURT: What is your question, Mr. Foreman?
JUROR KNIGHT: We have answered Form A and B and we have come down to section II-C.
THE COURT: Form C, number one?
JUROR KNIGHT: We are down to section II.
THE COURT: And what is your question?
JUROR KNIGHT: Your Honor, the way we have answered Forms A and B, section one, we have come down to section two where according to the law we have only one place to mark, and we can’t agree upon that now.
THE COURT: Without stating — how are you divided numerically? I take it you have answered all of the questions on Form A and B and all questions on Form C, part one, which is A, B, C, and D?
JUROR KNIGHT: Right.

Continuing the discussion concerning Form C:

THE COURT: Are you down to part two, A and B?
JUROR KNIGHT: Right.
THE COURT: And you cannot agree as between A and B?
JUROR KNIGHT: Yes, sir.
THE COURT: How are you numerically divided on that question?
JUROR KNIGHT: Seven and five.
THE COURT: Ladies and Gentlemen, it is now only twenty minutes until four. You have not been deliberating over a very long period of time. Without further instructions, I am going to require you to retire and deliberate and see if you cannot reconcile your differences by further deliberations and discussion among yourselves permitting everyone to be heard, to express their views and their opinions. Those opinions should prevail which appear most reasonable, logical, and sound.
You may now retire and deliberate, and if you are unable after a reasonable period of time, notify the bailiff.

Thereafter within a short period of time the jury returned with the unanimous verdict imposing the death sentence.

Appellant contends that the exchange between the judge and jury indicates “that the jury had the honest, though erroneous belief that since they had found aggravating circumstances existed, but found no mitigating circumstances, they had no choice but to render a verdict of death by electrocution. ” It is impossible now to ascertain the thinking of the jury, but we do not find the facts support this assumption made by appellant.

In order to determine if this point has merit we must review the events which transpired in light of the pertinent provisions of our statutes, Ark. Stat. Ann. §§ 41-4701 et seq. (Supp. 1973).

§ 41-4710. Trial procedure-Verdict in writing. A person charged with a capital felony shall be given a jury trial and sentenced pursuant to the following procedure:
(a) After presentation of all evidence and witnesses to be offered by the State and/or the defendant as to the guilt or innocence of the defendant, instructions to the jury, and argument by counsel, the jury shall retire and consider the case.
(b) If the jury finds the defendant guilty of a capital felony, the same jury shall sit again to determine whether the defendant shall be sentenced to death or life imprisonment without parole.
(c) In the proceeding to determine sentence, evidence may be presented as to any matters relevant to sentence and shall include matters relating to any of the aggravating or mitigating circumstances enumerated in Sections 11 [§ 41-4711] and 12 [§ 41-4712] of this act. The State and the defendant or his counsel shall be permitted to present argument for or against the sentence of death.
(d) After hearing all the evidence as to sentence, the jury shall again retire and render a sentence based upon the following:
(i) whether beyond a reasonable doubt sufficient aggravating circumstances, as enumerated in Section 11 [§ 41-4711] of this act, exist to justify a sentence of death;
(ii) whether sufficient mitigating circumstances as enumerated in Section 12 [§ 41-4712] of this act exist to justify a sentence of life imprisonment without parole.
(e) The jury in rendering its verdict shall set forth in writing its findings as to each of the aggravating or mitigating circumstances enumerated in Sections 11 [§ 41-4711] and 12 [§ 41-4712] hereof and sliall set forth in writing its conclusion:
(i) that sufficient aggravating circumstances (do or do not) exist beyond a reasonable doubt to justify a sentence of death;
(ii) that there are (or are not) sufficient mitigating circumstances to outweigh the aggravating circumstances.
(f) if the jury does not make the findings requiring the death sentence by unanimous verdict, the court shall impose sentence of life imprisonment without parole [Acts 1973, No. 438, § 10, p__].

Section 41-4711 denominates the aggravating circumstances, and § 41-4712 the mitigating circumstances to be considered by the jury.

The court in accordance with our statutes instructed the jury as follows:

* * *

The aggravating circumstances set forth on Form A, which will be given to you, are the only circumstances that you may consider as aggravating circumstances. If you find that one or more of these aggravating circumstances existed beyond a reasonable doubt at the time of the commission of capital felony murder, you shall indicate your findings by checking the appropriate circumstance or circumstances on Form A, entitled Aggravating Circumstances, which shall be furnished to you before retiring.
A mitigating circumstance is one which does not justify or excuse the offense in question but may be considered as reducing the degree of the defendant’s punishment. The circumstances set forth on Form B, entitled Mitigating Circumstances, which will be given to you before you retire, are not the only circumstances which you may consider as mitigating circumstances. If you find that one or more of these mitigating circumstances existed at the time of the commission of capital felony murder, you shall likewise indicate your findings by checking the appropriate circumstance or circumstances on Form B, entitled Mitigating Circumstances.
If you find that any other mitigating circumstance or circumstances existed which are not set out in Form B, you shall indicate this finding in the appropriate space on Form B and write in such circumstance or circumstances on the back side of that form.
After making the determination required to complete Forms A and B, you shall then set forth in writing your conclusions on Form C, entitled Conclusions and Verdict, which will also be provided to you before you retire.
You may not return a verdict imposing the sentence of death unless you make written findings and conclusions first that beyond a reasonable doubt one or more of the aggravating circumstances indicated on Form A existed at the time of the commission of capital felony murder; second, that beyond a reasonable doubt no mitigating circumstance or circumstances which you may find to exist outweighs or equals in weight the aggravated circumstance or circumstances. And third, you must find that the aggravating circumstance or circumstances found to have existed are sufficient to justify beyond a reasonable doubt a sentence of death. Finally, the findings, conclusions and verdict form must be signed by each member of the jury. A copy of these instructions will be provided for you. You will be permitted to take them to the jury room with you for your deliberations for use during your deliberations.

When the jury returned to the courtroom the foreman advised the court that the jury had already completed Part 1 of Form C. The conclusions reached under Part 1 were that:

(a) (v) One or more aggravating circumstances existed, beyond a reasonable doubt, at the time of the commission of the capital felony murder.
(b) ( s/) One or more mitigating circumstances does not exist.
(c) (J) The mitigating circumstances are not sufficient to outweight the aggravating circumstances.
(d) (>/) The aggravating circumstances are sufficient to justify beyond a reasonable doubt, the imposition of sentence of death.

By answering the questions under Part 1 of Form C, as the jury did, the members had already decided the aggravating circumstances warranted beyond a reasonable doubt the imposition of the death sentence. As indicated by the foregoing steps, the jury complied with the required statutory procedure before finding the death penalty should be imposed.

We also find the judge had fully complied with the requirements of the statute in initially instructing the jury, and since the jury had answered all questions on Forms A and B and Part 1 of Form C no additional instructions were necessary for the jury to arrive at its decision as to imposition of sentence.

Pursuant to Ark. Stat. Ann. § 43-2725 (Supp. 1975), we have reviewed the entire record for possible error not raised by appellant and find no reversible error.

At the circuit court level appellant challenged the constitutionality of §§ 41-4701, et seq. but did not question their validity on appeal. This Court in Collins v. Stale, 261 Ark. 195, 548 S.W. 2d 106 (1977), upheld the constitutionality of §§ 41-4701, et seq.; therefore, any question as to the constitutionality of the statute has been resolved against appellant.

We find the facts of this case support the sentence of death by electrocution. At appellant’s trial the jury found that the capital felony murder was, beyond a reasonable doubt, committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody and that the capita! felony murder was, beyond a reasonable doubt, committed for pecuniary gain. The jury further found that one or more of the mitigating circumstances did not exist.

According to appellant’s confession he went to the victim’s house on September 3, 1975, to work on the victim’s Chevrolet pickup truck. After appellant fixed the truck the victim asked him if he knew where a house trailer might be for sale. Appellant replied in the affirmative and, riding in appellant’s automobile, they started to look for it. During the ride appellant saw that Baker had a roll of bills and at that time decided he would rob him. After appellant’s car ran out of gas Baker got out of the car and started walking away to rest under a shade tree while appellant put ifi Some gas from a container he had in the car. According to appellant, as the victim walked away from him he “reached in the car and got my Revelation 12 gauge pump shotgun, I got 3 shotgun shells out of the door pocket of my car and loaded the gun. I figured he had at least a couple hundred dollars judging from the money I’d seen in his billfold earlier over near Harrisburg. I walked up to the front of my car, Mr. Baker was walking away from me, I put the shotgun to my right shoulder and shot him one time in the left back. He was about 22 yards away from me, he fell to his stomach, then he got up on his hands and knees, he was moaning, he started crawling away from me. Then I walked or ran up close to him, he was still on his hands and knees, still crawling, still moaning. I pumped the empty shell out of the gun and shot him in the back again, he fell on his stomach. He kept on making them moaning sounds, I pumped the shotgun and shot him again in the side of the head. He quit moaning then, he’d rolled over on his back before I shot him the 3rd time. I layed my gun down in the road, then I got him by the feet and was turning him around, his shoes come off as I was doing this, I dragged him by his feet down the road a little ways and then I drug him out in the woods. I left the body in the woods, about 6 foot from the side of the road.”

The report of the State Medical Examiner verified appellant’s confessions as to the nature of the gunshot wounds and the pictures introduced as exhibits depicted the extent of the impact of the bullets particularly the last shot which was fired at a distance of approximately one foot from the victim’s head.

Appellant was 22 years of age at the time he committed the murder, and his confession shows that no other person was involved in the crime. There was no testimony from a psychiatrist or psychologist that appellant was suffering from any mental disease or defect at the time of the murder.

We find no error in imposition of the death penalty under the facts of this case.

The judgment is affirmed.

George Rose Smith, Holt and Hickman, JJ., concur in the result but adhere to the views expressed in Collins v. State, 261 Ark. 195, 548 S.W. 2d 106 (1977).

appendix

FORM "C"

CONCLUSIONS AND VERDICT

The Jury, having reached its final conslusions, will so indicate by having its Foreman place a check mark (f'J in the appropriate space in the sentence in accordance with the Jury's findings. Your conslusions must be unanimous. Each member of the Jury will then sign at the bottom of this form.

I.

WE THE JURY CONCLUDE:

(a) (v") One or more aggravating circumstances existed, beyond a reasonable doubt, at the'time of the commission of the capital felony murder.

(b) ( ) One or more mitigating circumstances does exist.

(c) ( ) The mitigating circumstances are sufficient to outweigh the aggravating circumstances.

( ) One or more aggravating circumstances did not exist at the time of the commission of the capital felony murder.

(If answer here is that aggravating circumstances "did not exist," ship (b), (c) and (d) and check II A below*)

Kv’f One or more mitigating circumstances does not exist.

i.\Sf The mitigating circumstances are not sufficient to outweigh the aggravating circumstances. .

(d) ( ) The aggravating circumstances are not sufficient to justify the imposition of the sentence of death.

((^ The aggravating circumstances are sufficient to justify, beyond a reasonable doubt, the imposition of the sentence of death.

II.

WE THE JURY, after careful deliberation, have determined that the defendant shall be sentenced to:

A. ( ) LIFE IMPRISONMENT WITHOUT PAROLE.

B. DEATH BY ELECTROCUTION.

(In order to have checked "B" above, you must have answered number I (a) above in the affirmative, number I (c) above in the negative, and number I (d) above in the affirmative.)

       At trial appellant testified the entire statement was made up by the officers and he signed it because he was afraid. It is not surprising that the jury did not attach any credibility to this testimony since appellant in all three statements gave a myriad of details which would have been unknown to anyone else, such as being invited to eat watermelon with the deceased, what was done with the body and items in the possession of the deceased, etc. Testimony from other witnesses proved the accuracy of appellant’s' statements.

       Ark. Stat. Ann. § 43-2021 (Repl. 1964).

       Holmes was not called to testify.

         Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972).

       As an appendix we attach hereto a copy of Form C as returned by the jury.

       All three statements are in accord on all the essential elements of the crime. The last two confessions contained a few more details than the first.