author: Conley Byrd, Justice. J. Fred Jones, Justice,

text:
    Clyde Ray GLOVER v. STATE of Arkansas
    5479
    455 S. W. 2d 670
    Opinion delivered June 29, 1970

      W. B. Howard and Jack Segars, for appellant.

      Joe Purcell, Attorney General; Mike Wilson, Asst. Atty. Gen., for appellee.
   Conley Byrd, Justice.

Appellant Clyde Ray Glover was found guilty of murder in the first degree and sentenced to death for the alleged killing of Judy Evans. The gruesome facts, as related by an accomplice and as told by appellant to his own sixteen year old son, will not be reiterated because the evidence is clearly sufficient to sustain the verdict. In fact the sufficiency of the evidence is recognized in appellant’s brief as follows:

“The evidence of the state, if believed by the trier of fact, was abundantly ample to support his conviction and sentence to death by electrocution. In the prosecution of this appeal, it will not be our purpose to persuade the court that the evidence was not sufficient to sustain a conviction. As a matter of fact, the evidence of the State, if believed, reveals one of the more gruesome murders and subsequent attempt to conceal murder recorded in the annals of this State. There was and is a serious question about the credibility of each and every material witness for the State. The defendant’s defense was predicated upon an alibi and upon the lack of credibility of all material witnesses called against him.”

For reversal appellant relies upon the following points:

I. “The court erred in refusing to quash the search warrant issued on March 5, 1969, and in refusing to exclude evidence obtained pursuant to such search warrant.
II. The court erred in overruling appellant’s challenges for cause to talesmen Ralph Shoe, Glenn T. Boyd, Wayne L. Britewell and Alvin Jackson White.
III. The court erred in refusing to allow the defendant to prove on cross-examination of the state witness Peggy Pitcher that said witness had been told that the defendant and her husband had been double-dating.
IV. The court erred in commenting on the weight of the evidence by stating in effect in the presence of the jury that there was no testimony justifying the inference that witness Leorn Pitcher had assaulted the decedent with an intent to kill her.
V. The court erred in allowing the accomplice Latham to testify that after the crime he showed the officers the place where a ring, allegedly taken from the finger of the decedent, was buried and that the officers recovered the ring at the place pointed out by the witness.
VI. The court erred in allowing Deputy Prosecuting Attorney Howard Mayes to comment on defendant’s failure to take the witness stand.
VII. The court erred in refusing to give defendant’s requested instruction No. 1.”

Because we are reversing the judgment for failure of the trial court to excuse from the jury talesmen Ralph Shoe, Glenn T. Boyd, Wayne L. Britewell and Alvin Jackson White we do not discuss Points IV and VI. They are not likely to arise on a new trial.

POINT II

The record, with respect to talesmen Shoe, Boyd, Britewell and Jackson, is as follows:

Juror Ralph Shoe when interrogated by the court stated:

“I just formed my own opinion. A witness could come on the stand and change everything. I formed an opinion from what I read about it and heard talked about it. As I say, a witness could change it all around. I would disregard whatever, opinions I have formed in the past and base my verdict simply and strictly on the evidence given and the law given without regard to any opinions which I may have previously held. I did not talk to any body who purported to be a witness.”

When interrogated by defendant’s counsel the juror stated:

“My present mental state is that I would attempt to follow what the court says about the evidence and the law and consider only the evidence heard from the witness stand and the law given me by the court. But, in that connection, until I hear evidence from the witness stand that gives me grounds to believe something which would cause me to change my ideas, I would still have those ideas. . .”

Juror Glenn T. Boyd when questioned by the court said that he had formed an opinion and that he realized whatever he read in the paper was hearsay and if selected as a juror he would disregard it and try the appellant on the evidence he heard in court. But when interrogated by defendant’s counsel, he said:

“I formed some tentative opinions about the matter which I presently entertain. While I indicated to His Honor that I would be willing to set this opinion aside and try the case on the law and the evidence, until some evidence is introduced to remove that opinion, I will still have it.”

Juror Wayne L. Britewell testified as follows:

Interrogation by court:

“I recall reading about the death of the decedent. It is a little hard not to form an opinion. Regardless of the opinions I have formed and regardless of whether what I may have read or heard is true, I would try it on the evidence I hear in court to the best of my ability. I would set these opinions aside.

Interrogation by appellant’s counsel:

“In answering Judge Light, I stated that what I had read and heard was the only evidence I had, that I believe that I was supposed to go by the evidence. Until such time as I did hear evidence in this case, I would entertain my present opinion.

Interrogation by court:

“The opinions I have formed were arrived at either from hearing about it from other people who did not purport to be witnesses or from what I read in the paper. This is an opinion which I could readily disregard. I would readily disregard such an opinion and base my verdict wholly and solely on the evidence in the case.

Interrogation by counsel:

“It would take some evidence to remove my present opinion.”

Juror Alvin Jackson White after interrogation by the court finally stated to appellant’s counsel:

“Although I have indicated an answer to his Honor’s questions that I am perfectly willing to set aside my present opinions to the best of my ability and try die case on the law and the evidence, it would take evidence to remove that opinion and I would keep that opinion until I heard evidence to the contrary.”

Both the U. S. Constitution, Amendment No. 6, and the Arkansas Constitution, Art. 2, § 10, guarantee the accused in all criminal prosecutions trial “by impartial jury”. In a case involving a sensational killing and newspaper publicity it is almost impossible to find an informed citizen to serve on the jury who has not heard about the case and who has Tiot formed some opinion based upon the newspaper- accounts. In such cases it is the duty of the trial court to determine whether an opinion has been formed and whether the jurors can lay aside such opinion and give to the accused the benefit of all doubts that the law requires while trying him on the law and the evidence given to them during the trial. When a venireman states that he can lay aside such preconceived opinions and give to the accused the benefit of the doubts to which he is entitled under law, it is generally conceded that the venireman qualifies as “impartial” under the constitutional requirements. See Rowe v. State, 224 Ark. 671, 275 S. W. 2d 887 (1955), where we said:

“While it is true that some of the veniremen said that they had formed tentative opinions based upon newspaper reports or what some one had told them, all who were accepted stated that they could and would be guided solely by the testimony, giving to the defendant the benefit of all doubts that the law defines. There was no error in accepting these men. It is no longer practicable in an intelligent society to select jurors from a psychological vacuum or from a stratum where information common to the community as a whole is lacking.”

In Irvin v. Dowd, 366 U. S. 717, 6 L. Ed. 2d 751, 81 S. Ct. 1939 (1961), the U. S. Supreme Court, speaking through Mr. Justice Tom Clark, discussed the “impartial” juror requirement in this language:

“. . . In essence, the right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, ‘indifferent’ jurors. The failure to accord an accused a fair hearing violates even the minimal standards of due process. Re Oliver, 333 U. S. 257, 92 L. Ed 682, 68 S. Ct. 499; Tumey v. Ohio, 273 U. S. 510, 71 L. Ed. 749, 47 S. Ct. 437, 50 ALR 1243 ‘A fair trial in a fair tribunal is a basic requirment of due process.’ Re Murchison, 349 U. S. 133, 136, 99 L. Ed. 942, 946, 75 S. Ct. 623. In the ultimate analysis, only the jury can strip a man of his liberty or his life. In the language of Lord Coke, a juror must be as ‘indifferent as he stands unsworne.’ Co. Litt. 155b. His verdict must be based upon the evidence developed at the trial. Cf. Thompson v. Louisville, 362 U. S. 199, 4 L. Ed 2d 654, 80 S. Ct. 624. This is true, regardless of the heinousness of the crime charged, the apparent guilt of the offender or the station in life which he occupies. It was so written into our law as early as 1807 by Chief Justice Marshall in 1 Burr’s Trial 416 (1807). ‘The theory of the law is that a juror who has formed an opinion cannot be impartial.’ Reynolds v. United States, 98 U. S. 145, 155, 25 L. Ed. 244, 246.
It is not required, however, that the jurors be totally ignorant of the facts and issues involved. In these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case. This is particularly true in criminal cases. To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court. Spies v. Illinois, 123 U. S. 131, 31 L. Ed. 80, 8 S. Ct. 21, 22; Holt v. United States, 218 U. S. 245, 54 L. Ed. 1021, 31 S. Ct. 2, 20 Ann. Cas. 1138; Reynolds v. United States (U. S.) supra.
The adoption of such a rule, however, ‘cannot foreclose inquiry as to whether, in a given case, the application of that rule works a deprivation of the prisoner’s life or liberty without due process of law.’ Lisenba v. California, 314 U. S. 219, 236, 86 L. Ed. 166, 180, 62 S. Ct. 280. As stated in Reynolds, the test is ‘whether the nature and strength of the opinion formed are such as in law necessarily. . . raise the presumption of partiality. The question thus presented is one of mixed law and fact . . . .’ At p. 156. ‘The affirmative of the issue is upon the challenger. Unless he shows the actual existence of such an opinion in the mind of the juror as will raise the presumption of partiality, the juror need not necessarily be set aside. ... If a positive and decided opinion had been formed, he would have been incompetent even though it had not been expressed.’ At p. 157. As was stated in Brown v. Allen, 344 U. S. 443, 507, 97 L. Ed. 469, 515, 73 S. Ct. 397, the so-called mixed questions or the application of constitutional principles to the facts as found leave the duty of adjudication with the federal judge.’ It was, therefore, the duty of the Court of Appeals to independently evaluate the voir dire testimony of the impaneled jurors.”

Thus it appears to us that talesmen Shoe, Boyd, Britewell and White, in stating that they would keep their opinion formed from reading the newspaper until they heard evidence to the contrary, did not qualify as "impartial” jurors within the meaning of either the U. S. Constitution or the Constitution’ of Arkansas. It follows that the trial court erred in not discharging the four talesmen for cause.

The error is clearly before us because the appellant used four of his peremptory challenges on the four talesmen involved and after all of his peremptory challenges were exhausted, he caused the record to show that if he had not been required to so exhaust his challenges on these four talesmen, he would have peremptorily challenged talesman Burns who sat on the jury.

POINT I

In examining the points raised by the appellant, we find no error in the trial court’s refusal to quash the search warrant and exclude the evidence obtained thereby. Both the appellant and the state rely on our decision in Walton v. State, 245 Ark. 84, 431 S. W. 2d 462 (1968), for their respective positions on this point. In Walton we said:

“. . . While an affidavit for a search warrant may be based upon personal observations of the affiant, it may also be based, in whole or in part, on hearsay information. When it is based upon hearsay, the magistrate must be informed of some of the underlying circumstances from which an informant concluded that the object of a proposed search was where he said it was. He must also be advised of some of the circumstances from which the officer concludes that the informer (whose identity need not be then disclosed) is credible or his information reliable. An affidavit, which does not contain any affirmative allegation that affiant speaks with personal knowledge of the matters contained therein and also fails to show that information given by an unidentified source was not merely his suspicion, belief or conclusion, has been held not to show probable cause.”

It will be noted that while an affidavit for a search warrant may be based upon personal observation of the affiant, it may also be based on hearsay information. When the affidavit is based upon hearsay, the magistrate must be informed of some of the underlying circumstances from which an informant concluded that the object of the proposed search was where he said it was. The rule, as we announced it in Walton, is simply designed to eliminate issuance of search warrants on mere suspicion expressed to the issuing magistrate by affiants based on hearsay. The affiants must give the magistrate the benefit of their personal observation when the warrant is sought on that basis, and the affiant must pass on to the magistrate the facts and circumstances the affiant obtained on hearsay information, when the warrant is sought on that basis. The rule, as set out in Walton, goes no further than good common sense directs in the interest of justice and fair play. Neither this court nor any other court, insofar as we have been able to determine, has held that an affiant must prove beyond a reasonable doubt the truth of the contents of his affidavit for a search warrant before a valid search warrant may be issued by the magistrate.

The object of the search in the case at bar was a revolving red light and the affidavit states that the officers had reasonable ground for believing that “a revolving red light, DC current, was owned by Ray Glover and that said revolving red light is now located upon the property and premises of the said Ray Glover on Highway 1 North of Paragould, in Greene County, Arkansas; and that said revolving red light was used upon the highway in this county on or about March 1, 1969, to stop a vehicle driven by one Judy Evans; and the affiants have reasonable grounds for believing said Judy Evans was killed and murdered on that date by Ray Glover together with other person or persons.” Now, concerning the information furnished by the officers in their affidavit as to the underlying circumstances from which their informant concluded that the red light, was where he said it was; and as to the advice of some of the circumstances from which the officers concluded that the informer was credible or his information reliable, the officers state in their affidavit as follows:

“That affiants have been so informed by an informant known to these affiants, the informant stating that he was present with Ray Glover at the time the revolving red light was placed in a building upon the aforementioned property of Ray Glover.
That the informant is known to the affiants and that previous information supplied by said informant has proven reliable and accurate and that the affiants have reason to believe that the information herein is also reliable and dependable.
That on another occasion informant gave information that a certain ring was worn upon the person of the said Judy Evans at the time of her death; that the ring was removed by Ray Glover and in the presence of the informant buried at a certain location supplied to affiants and other investigating officers; that upon a search of the location given by the informant said ring was in fact found.
That on other occasions this informant has supplied information concerning theft of automobiles by person or persons when in fact said automobiles had been reported stolen.
That affiants further state that the said Ray Glover was at all times mentioned herein wearing a leather jacket, shirt, trousers, shoes, at the time of the killing of the said Judy Evans and upon informant’s information said clothing is believed to be located upon the premises herein described; that said clothing is believed to contain evidence of the killing.”

We simply hold that the affidavit in the case at bar furnished the magistrate all that it was necessary for him to know, and the court did not err in refusing to quash the search warrant or exclude the evidence obtained thereunder.

POINT III

As to appellant’s third point, the State’s witness, Peggy Pitcher, admitted that she was involved in civil litigation with the appellant and she readily admitted that she disliked him. Mrs. Pitcher and her husband had purchased a house trailer from appellant which he repossessed with its contents, which Mrs. Pitcher says was purchased from other parties and belonged to her. Mrs. Pitcher’s dislike for the appellant and not the reason for her dislike, might have been such cause that would affect her credibility as a witness. Perkins v. State, 168 Ark. 710, 271 S. W. 326 (1925). Mrs. Pitcher had already admitted her dislike for appellant and we find no error in the court’s refusal to permit appellant to cross-examine Peggy Pitcher concerning what she had been told about double-dating by her husband and appellant. The offer of proof on this point indicates an obvious effort to prove Peggy Pitcher’s bias against appellant. Under offer of proof, Mrs. Pitcher denied that she knew anything about her husband and appellant double-dating with one Alice Cannon and the decedent Judy Evans. We hold that the trial court was in the proper exercise of its discretion in limiting the scope of cross-examination of Peggy Pitcher as to what had been told her about double-dating.

POINT V

We find no merit in appellant’s fifth point. There was no objection to Latham’s testimony that he was present when the appellant drew a ring off decedent’s finger and when appellant subsequently wrapped the ring in masking tape and buried it at the end of a bridge near Corning. Appellant concedes that a picture of Latham, offered in evidence and depicting him showing C. I. D. men where the ring was buried, was not objectionable because its reception would have been harmless, absent the testimony to which the appellant does object. Latham’s testimony to which appellant objects appears as follows:

“Q. Where did Ray Glover wrap the ring up in that?
A. At his body shop.
Q. What did he do with the little package?
A. Put it in his pocket.
Q. Did you ever see it again after that?
A. I don’t recall seeing it again.
Q. Did you see what Ray did with it?
A. I saw him bury it at the bridge up this side of Corning.
Q. I show you here a picture, ask you to examine it?
A. Picture taken of me up at the bridge this side of Corning where I was showing the C. I. D. men where the ring was buried.
Q. Was the ring recovered there?
A. Yes. It was.
Mr. Pearson: Offer it in evidence.
Mr. Howard: I object. Extrajudicial statements made by one of the conspirators after confirmation of the conspiracy, improper.
THE COURT: Objection overruled.
Mr. Howard: Exception.
I further object on the ground of hearsay. And the defendant has the right to face the accuser, and, according to the testimony here, done outside the presence of the defendant.
THE COURT: Objection overruled.
Mr. Howard: Exception.”

We do not follow appellant’s reasoning in connection with his objection to this testimony, as we do not consider the testimony of Latham as constituting “acts and declarations after the termination of the conspiracy.” Latham simply testified as to what he himself saw and did.

POINT VII

In appellant’s seventh and last point, we find no error in the trial court’s refusal to give appellant’s requested Instruction No. 1, which was:

“In determining the truth on any issue involved in this case, mere numbers of witnesses should not be the sole criteria of your determination. Rather, you should consider the credibility or lack of credibility of the respective witnesses and the number of witnesses called to establish an alleged fact should be considered by you solely and alone in the light of probability or improbability as to the alleged fact to which the witnesses may have testified.”

Its content was sufficiently covered by other instructions, especially Instruction No. 14, as follows:

“You are the sole judges of the evidence in the case and of the weight thereof, and of the credibility of the witnesses, and in arriving at a conclusion as to what weight you shall attach to the evidence of any particular witness, you will take into consideration his or her interest in the result of the case, his or her conduct, demeanor and manner while testifying as a witness upon the stand, his or her means of ascertaining the knowing the truth of the facts concerning which he or she testified. If you find that a witness has sworn falsely as to any material point is issue, you may entirely disregard the testimony of such witness only if you believe all of his or her testimony to be false, or you may give regard to that part which you believe to be true and disregard that part which you may believe to be false. You have no right to disregard any statement you believe to be true simply because he or she may have sworn falsely as to some other fact.”

For the reasons stated in Point II, this matter is reversed and remanded.

Harris, C. J. and Jones, J. dissenting.

Fogleman, J. not participating.

J. Fred Jones, Justice,

dissenting. I am unable to agree with the results reached by the majority in this case and I respectfully dissent for two reasons. In the first place, I find nothing in the record before us nor in the decision of the United States Supreme Court in Irvin v. Dowd, 366 U. S. 717, 6 L. Ed. 2d 751, cited and relied on by the majority, which should make the case at bar immune to the rules this court followed long before the United States Supreme Court ever heard of the Indiana case of Irvin v. Dowd.

In the second place, the appellant was not tried by any juror he challenged for cause. In effect, the appellant contends that had he not wasted four of his peremptory challenges on prospective jurors who should have been excused under his challenges for cause, he would have exercised a peremptory challenge on a Mr. Burns who sat on the jury but who was not challenged by the appellant for cause.

Judy Evans was twenty years of age when the charred remains of her still smouldering body were discovered on the floor of her parents’ 1966 Pontiac automobile which was found burning in a gravel pit off a county road in Greene County, Arkansas. Automobile tire and human footprints, together with the position of the automobile and other evidence surrounding the scene, even prior to autopsy, made it perfectly clear that Judy did not die as a result of her own negligence in the operation of her automobile, as someone had obviously attempted to make it appear. The physical evidence, even prior to the multiple skull fractures revealed on autopsy, pointed unmistakenly to a stupid and thinly veiled effort to submerge the crime of murder in a crime of arson, and to destory all evidence of the former by cremation aided by an ample supply of gasoline generously applied. James Allen Latham and Clyde Ray Glover were soon apprehended and charged with the crime of murdering Judy Evans.

From the record before us the above facts are all that any prospective juror knew, or could have known, prior to the trial of this case. At the trial, Latham admitted his part in the murder and explained in gruesome detail how Glover felt that Judy knew too much about automobile thefts, as well as house burglaries and arson in which Glover and others, including the witness, were involved. Latham explained in detail how he and Glover used a revolving red light to apprehend and stop Judy on the highway; how Glover drove Judy’s automobile to a little used road while he followed in the automobile he and Glover were using; how Glover started “pecking” at Judy in her automobile and how Judy ran to the automobile occupied by Latham and sought his protection against Glover, whom she erroneously thought to be drunk. Latham then gave a blow by blow description of how Glover beat Judy unconscious with his fist and how when she revived, he beat her head with an automobile bumper jack until they thought she was dead; how then, when they noticed that her heart was still beating, Glover pulled her head over by her hair and beat her head some more with the bumper jack, remarking at the time that it didn’t bother him a bit. Latham explained how he, at Glover’s request, went for the four gallons of gasoline he had purchased several days before for the purpose of cleaning an automobile part. Latham explained how they placed Judy’s body upright in the automobile with her foot on the accelerator; how they then accelerated the automobile into the gravel pit; how they saturated the automobile and Judy’s body with gasoline and how Glover ignited the gasoline. He| related in minute detail how he and Glover disposed’, of the loot from Judy’s purse. They divided the small¡ change and he chewed the chewing gum. Latham testified as to how he helped Glover clean the blood from Glover’s black leather coat. He described how Glover prepared and buried a ring he took from Judy’s finger before they set her body on fire, and how he led the officers to the ring where he had seen Glover bury it. Latham attempts to explain his own participation in this crime by asserting his physical fear of Glover, but he denies that his testimony was prompted to any degree at all by his fear of the electric chair. Latham’s testimony was fully corroborated by circumstantial evidence and the testimony of other witnesses, including that of Randy Ray Glover, the appellant’s own sixteen year old son, who testified that on the day following the ghastly night’s work related by Latham, his father casually remarked that they had killed Judy Evans and had missed some money because she had not cashed her pay check. Such was the nature of the crime committed, and such was the nature of the testimony offered by the state.

The appellant heard all of the testimony offered against him by the state in grisly detail and he failed to deny that he said and did everything the state’s witnesses testified that he said and did. The burden was on the state to prove that Glover was guilty as charged and, of course, Glover was well within his rights in not testifying in his own defense. In failing to testify, or offer any other evidence to contradict the testimony of the state’s witnesses however, the appellant leaves the state’s evidence uncontradicted and unimpeached except as to such lack of credibility that may attend the casual commission of such a ghoulish crime by individuals who claim all the rights and privileges of civilized men; and such lack of credibility that may attend the testimony of an admitted thief and accessory to such crime.

Unlike the case of Irvin v. Dowd, supra, relied on by the majority, there is no evidence that any of the jurors, or any of the prospective jurors, heard anything at all about the details of Judy’s murder until they heard it from the witnesses at the trial of the case. In so far as the record reveals, all they knew or could have known, was that Judy had been murdered and her body burned in her automobile; but the record does not reveal that they even knew she had been murdered. Unlike Irvin v. Dowd, the record is silent in the case at bar as to what was published in the newspapers from which the jurors could have formed opinions.

I fully agree with Glover and the majority of this court that Glover was entitled to a fair and impartial trial, but I do not agree with Glover and the majority of this court that Glover did not receive a fair and impartial trial. Glover contends, and the majority agrees, that the trial court erred in overruling appellant’s challenges for cause to the talesmen Ralph Shoe, Lynn T. Boyd, Wayne L. Britewell, and Alvin Jackson White. Each of these gentlemen stated on voir dire that they had formed opinions as to the guilt or innocence of the appellant by reading newspapers and hearing the case discussed by people in general, none of whom were witnesses or purported to actually know anything about the case. The news articles and the substance of general discussion are not in the record, but under questioning by the court these gentlemen stated that they could and would lay aside the opinions they had formed and render their verdict according to the law as instructed by the court and the evidence as presented at the trial. Under examination by appellant’s counsel, these prospective jurors stated that it would take some evidence to change the opinion they had formed. They were not asked, nor did they state, what their opinions were; neither did they sit on the jury before whom the appellant was tried. These jurors were summarily discharged by the appellant through the exercise of his peremptory challenges.

The appellant’s actual contention, therefore, is that the trial court committed prejudicial error by causing him to waste four of his twelve peremptory challenges on talesmen who should have been discharged for cause. This contention is ingeniously conceived and expertly presented; it has apparently impressed the majority of this court. The majority points out that the appellant caused the record to show that if he had not been required to exhaust his peremptory challenges on the four talesmen, he would have peremptorily challenged talesman Burns who did sit on the jury. It appears to me that if the appellant had been as concerned with the qualifications of juror Burns, as he now appears, he would have at least challenged Burns for cause, if he felt that Burns was not qualified, instead of asking for additional peremptory challenges which the law does not, and the court can not, give.

In Rowe v. State, 224 Ark. 671, 275 S. W. 2d 887, the first eight assignments of error related to the court’s action in permitting jurors to serve when, from the defendant’s point of view, the answers given on their voir dire disclosed prejudice, fixed opinion as to the defendant’s guilt, or were in some position or relationship calculated to influence jury action irrespective of the evidence. In passing on the “fixed opinion” assignment in that case, this court said:

“While it is true that some of the veniremen said that they had formed tentative opinions based upon newspaper reports or what some one had told them, all who were accepted stated that they could and would be guided solely by the testimony, giving to the defendant the benefit of all doubts that the law defines. There was no error in accepting these men. It is no longer practicable in an intelligent society to select jurors from a psychological vacuum or from a stratum where information common to the community as a whole is lacking.”

In Leggett v. State, 227 Ark. 393, 299 S. W. 2d 59, the crime, as in the case at bar, was a sensational one. The assignment of error relating to the selection of the jury was so near on all fours with the case at bar, I feel justified in quoting fully from our opinion in that case on the point involved, as follows:

“It is apparent from the record that news about the crime and its investigation had been extensively reported in the press and by radio and television. Many veniremen who had formed opinions on the basis of such reports were excused by the court, but the appellant insists that four jurors whom he challenged for cause should also have been rejected. Each of these four men stated in substance that he had formed an opinion about the case and that evidence would be required to remove his opinion, but upon further questioning each man also declared he could lay aside his preconceived view and try the case impartially upon the law and the evidence.
It is settled by many decisions that a tentative opinion of this kind, based upon newspaper reports and the like, does not disqualify a prospective juror. The appellant relies chiefly upon the early case of Polk v. State, 45 Ark. 165, but that decision was disapproved in Hardin v. State, 66 Ark. 53, 48 S. W. 904, and has not been followed in any later case. Sneed v. State, 143 Ark. 178, 219 S. W. 1019; Howell v. State, 220 Ark. 278, 247 S. W. 2d 952.”

In the case of Howell v. State, 220 Ark. 278, 247 S. W. 2d 952, error was assigned in the court’s refusal to dismiss on voir dire examination one L. L. Mack as one of the jurors, and particularly in view of the fact that all peremptory challenges were exhausted by appellant before the full jury was finally selected. Mr. Mack was asked and answered questions in that case as follows:

‘Q. Mr. Mack, do you have such an opinion on your mind at this time as would take evidence to overcome it?
A. Yes, sir, I don’t know if the State supports what I have read of the thing, I have that opinion if that is true now. I am open minded on what the newspaper reported, but I have formed an opinion from that.
Q. Could you, and would you go into the trial of this matter with an open mind and discharge any preconceived notion or opinion and render your verdict on the facts and circumstances developed in evidence, applying the law given by the court, could you render a verdict and disregard any idea you might have?
A. I think I could.
Q. Would you say you know you could?
A. Yes, if the evidence warrants it.’

Counsel for appellant asked:

‘Q. Are you telling this court that you at the present time have an opinion on your mind?
A. Based on newspaper reports.
Q. And that opinion would take evidence on the part of the defendant to remove it from your mind?
A. I wouldn’t say that. I would say if the State presents evidence as outlined by the press and other things, it would take some other evidence to disprove that, I don’t know what the State is going to show.’

The Court then asked:

‘Q. In other words, it would be what the State develops the evidence?
A. Yes, sir.
Q. You could go into the jury box with a free and open mind?
A. I don’t see how I could keep from forming an opinion if the facts áre as reported by the press.
Q. But still you are open to discharge th^t from your mind and render a verdict as the State presents its case, also taking into consideration all the evidence, which would include the defense, you could do that?
A. Yes, sir.’ ”

In that case this court said:

“It was not error for the court to refuse to dismiss the juror for cause under the many decisions of this court, such as: Dolan v. State, 40 Ark. 454; Daughtry v. State, 80 Ark. 13, 96 S. W. 748; Dewein v. State, 114 Ark. 472, 170 S. W. 582; and Borland v. State, 158 Ark. 37, 249 S. W. 591.”

Presumptions may attend the source of information from which a juror may form an opinion as was clearly set out in the case of Rush v. State, 238 Ark. 149, 379 S. W. 2d 29. In that case Fred Rush was being tried for the murder of his stepfather, Paul Rush, who owned “and operated a furniture company in Fort Smith. On voir dire examination one of the veniremen stated that he rented a building to the furniture company' and had discussed the case with an employee of the company who was also listed as a witness in the case, and that he (the venireman) had an opinion which would take evidence to remove. He also stated that he could set aside his opinion and try the case on the law and on the evidence introduced at the trial. The defendant challenged the qualification of the venireman but the trial court held that he was qualified. In holding that the trial court erred, this court distinguished between opinions formed by reading newspaper accounts and hearing the case discussed generally, and opinions formed as a result of discussing the case with a prospective witness, in the following language:

“In numerous cases this court has held that although a venireman has formed an opinion, from rumor and the reading of newspapers, that would take evidence to remove, he is qualified if he can go into the jury box and give both the State and the defendant a fair and impartial trial and base his verdict on the evidence introduced in the case and instructions of the court. Hardin v. State, 66 Ark. 53, 48 S. W. 904; Ham v. State, 179 Ark. 20, 13 S. W. 2d 805; West v. State, 150 Ark. 555, 234 S. W. 997; Niven v. State, 190 Ark. 514, 80 S. W. 2d 644. There it was pointed out that the veniremen had not talked with any witness; Howell v. State, 220 Ark. 278, 247 S. W. 2d 952; Leggett v. State, 227 Ark. 393, 299 S. W. 2d 59. In Lauderdale v. State, 233 Ark. 96, 342 S. W. 2d 422, it was pointed out that the venireman had not talked to a witness.
But we have been cited to no case, and we have found none, holding that one is qualified to serve on a jury who has talked with a witness in the case and has formed an opinion that would take evidence to remove. We have at least two cases holding to the contrary. Caldwell v. State, 69 Ark. 322, 63 S. W. 59; Lane v. State, 168 Ark. 528, 270 S. W. 974. The court erred in holding the venireman, Laws, to be qualified to serve as a juror.”

As we said in Stout v. State, 247 Ark. 948, 448 S. W. 2d 636, and later in Pointer v. State, 248 Ark. 710, 454 S. W. 2d 91, an accused does not have the right to have a jury of his choice from the panel selected, but an accused only has the right to a competent, fair and impartial jury. As stated in Stout, the privilege of peremptory challenge in selecting a jury is not a right of selection, it is a privilege of rejection. 47 Am. Jur. 2d, Jury, § 233.

I recognize, as I think everyone must, that intelligent inquiring minds acquire ideas and form opinions from what is read and heard, and that practically every law-abiding citizen is prejudiced to varying degrees against crime and criminals. Consequently, in the selection of a jury to try a criminal case, the important question is not so much whether a juror has formed an opinion or is prejudiced; the important question is whether the citizen, when carrying out his duties as a juror, can lay aside his opinions and prejudices and give the accused a fair trial. An accused is not entitled to a trial before a jury of robots, he is entitled to a trial before honest jurors who are intelligent enough to recognize their own opinions and prejudices and honest enough to say so if they are unable to fairly and impartially try the accused.

I feel that the. majority have overreacted to the United States Supreme Court decision in Irvin y. Dowd, supra, and have let the results reached by the court on the facts in that case stand as a solemn mandate and rigid rule of law to be applied and followed in the case at bar under an entirely different set of facts. In other words, it appears to me that the majority are reading more into the decision in Irvin v. Dowd, than I am able to read out of it. In the Irvin case it is perfectly clear that the news media had fanned the flames of normal prejudice against crime and criminals to the point where mere opinions were converted into fixed and established facts, and reason was consumed, lost or abandoned in the process; even the reason of prospective jurors. In other words, the newspapers had successfully kindled a fire of public opinion against Irvin and then fanned and fed the flame until no amount of cold reason could cool its searing effect, and nothing less than the life of Irvin could extinguish it. Such was the situation in the Irvin case, but such was not the situation in the case at bar.

As I view the decision in the Irvin case, it is actually a scorching, and well deserved indictment of the news media, aided and abetted by a sheriff and a prosecuting attorney, in pre-trying Irvin to the extent that he stood convicted before trial, not only for the crimes with which he was charged in Indiana, but for all the crimes and misdemeanors ever committed by him or of which he was ever accused. The syllabus alone in Irvin v. Dowd, sets it poles apart from the case at bar for it contains the following statement:

“At the trial, the jury panel consisted of 4S0 persons; 268 of these were excused for cause as having fixed opinions as to the guilt of petitioner; and 8 of the 12 who finally served on the jury admitted that they thought petitioner was guilty, but each indicated that, notwithstanding his opinion, he could render an impartial verdict.” (Emphasis added).

Irvin was accused of murdering six people; he was tried and convicted in Indiana and his case reached the United States Supreme Court by certiorari. The build up of prejudice through the newspapers in Irvin v. Dowd, went much further than the average person would conceive that responsible news media would go. As pointed out by Mr. Justice Clark, it was alleged, in the motion for a new trial, that curbstone opinions were solicited and recorded by the newspapers on the public streets and not only as to the appellant’s guilt, but even to what punishment he should receive. A barrage of newspaper headlines, articles, cartoons and pictures were unleashed against the appellant during six or seven months preceding his trial. The news stories revealed the details of the appellant’s background including reference to crimes committed when he was a juvenile, his convictions for arson almost 20 years previously, for burglary and by a court martial on AWOL charges during the war. He was accused of being a parole violator. The headlines announced his police lineup identification; that he faced a lie detector test, had been placed at the scene of the crime, and that the six murders were solved but petitioner refused to confess. The newspapers later announced his confession to the six murders and the fact of his indictment for four of them in Indiana. They reported petitioner’s offer to plead guilty if promised a 99-year sentence, but also the determination on the other hand of the prosecutor to secure the death penalty, and that petitioner had confessed to 24 burglaries (the modus operandi of these robberies was compared to that of the murders and the similarity noted). One story dramatically relayed the promise of a sheriff to devote his life to securing petitioner’s execution by the state of Kentucky, where the petitioner was alleged to have committed one of the six murders, if Indiana failed to do so. Another article characterized petitioner as remorseless and without conscience but also as having been found sane by a court-appointed panel of doctors. In many of the stories petitioner was described as “the confessed slayer of six,” a parole violator and fraudulent-check artist. Petitioner’s court-appointed counsel was quoted as having received “much criticism over being Irvin’s counsel” and it was pointed out, by way of excusing the attorney, that he would be subject to disbarment should he refuse to represent Irvin. On the day before the trial the newspapers carried the story that Irvin had orally admitted the murder of Kerr (the victim in the case) as well as “the robbery-murder of Mrs. Mary Holland; the murder of Mrs. Wilhelmina Sailer in Posey County, and the slaughter of three members of the Duncan family in Henderson County, Kentucky.” On the second day of Irvin’s trial, which was devoted to the selection of the jury, the newspapers reported that “strong feelings, often bitter and angry, rumbled to the surface,” and that “the extent to which the multiple murders — three in one family —have aroused feelings throughout the area was emphasized Friday when 27 of the 35 prospective jurors questioned, were excused for holding biásed pretrial opinions. . .” A few days later the feelings were described as “a pattern of deep and bitter prejudice against the former pipe fitter.” Spectator comments, as printed by the newspapers, were “my mind is made up”; “I think he is guilty”; and “he should be hanged.”

The news reporting in Irvin v. Douid was almost as revolting as the crime itself in the case at bar, and certainly I have no quarrel with the result reached in Irvin under the facts of that case. In Irvin we have only the facts as reported through the news media, and in the case at bar we have only the facts as testified by witnesses at the trial of the case. An additional important distinction stands out in Irvin in the following language:

“An examination of the 2,783 page voir dire record shows that 370 prospective jurors or almost 90% of those examined on the point (10 members of the panel were never asked whether or not they had any opinion) entertained some opinion as to guilt —ranging in intensity from mere suspicion to absolute certainty. A number admitted that, if they were in the accused’s place in the dock and he in theirs on the jury with their opinions, they would not want him on a jury.”

The important and decisive point in Irvin v. Dowd, as well as further distinction from the case at bar, is stated in Irvin v. Dowd, as follows:

“Here the ‘pattern of deep and bitter prejudice’ shown to be present throughout the community, cf. Stroble v. California, 343 U. S. 181, was clearly reflected in the sum total of the voir dire examination of a majority of the jurors placed in the jury box. Eight out of the 12 thought petitioner was guilty. . . . Where one’s life is at stake — and accounting for the frailties of human nature — we can only say that in the light of the circumstances here the finding of impartiality does not meet constitutional standards. Two-thirds of the jurors had an opinion that petitioner was guilty and were familiar with the material facts and circumstances involved, including the fact that other murders were attributed to him, some going so far as to say that it would take evidence to overcome their belief. One said that he ‘could not . . . give, the defendant the benefit of the doubt that he is innocent.’ Another stated that he had a ‘somewhat’ certain fixed opinion as to petitioner’s guilt. No doubt each juror was sincere when he said that he would be fair and impartial to petitioner, but the phychological impact requiring such a declaration before one’s fellows is often its father. Where so many, so many times, admitted prejudice, such a statement of impartiality can be given little weight.” (Emphasis added).

In my opinion the court in Irvin v. Dowd, indicates it would probably have reached a different result had the facts in that case been such as we have in the case at bar. Quoting from Reynolds v. United States, 98 U. S. 145, 155, the court in Irvin v. Dowd, states:

“It is not required, however, that the jurors be totally ignorant of the facts and issues involved. In these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case.
This is particularly true in criminal cases. To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court. Spies v. Illinois, 123 U. S. 131; Holt v. United States, 218 U. S. 245; Reynolds v. United States, supra.
The adoption of such a rule, however, ‘cannot foreclose inquiry as to whether, in a given case, the application of that rule works a deprivation of the prisoner’s life or liberty without due process of law.’ Lisenba v. California, 314 U. S. 219, 236. As stated in Reynolds, the test is ‘whether the nature and strength of the opinion formed are such as in law necessarily . . . raise the presumption of partiality. The question thus presented is one of mixed law and fact. . .’ At p. 156. ‘The affirmative of the issue is upon the challenger. Unless he shows the actual existence of such an opinion in the mind of the juror as will raise the presumption of partiality, the juror need not necessarily be set aside. . . If a positive and decided opinion had been formed, he would have been incompetent even though it had not been expressed.’ At p. 157. As was stated in Brown v. Allen, 344 U. S. 443, 507, the ‘so-called mixed questions or the application of constitutional principles to the facts as found leave the duty of adjudication with the federal judge.’ It was, therefore, the duty of the Court of Appeals to independently evaluate the voir dire testimony of the impaneled jurors.”

I fail to find authority, or even a suggestion in Irvin v. Dowd, that would justify us, on the facts in the case at bar, in abandoning the procedure we have followed in our own cases, supra, and adopting as a procedural rule of law, the results reached by the United States Supreme Court on the bizarre facts of an Indiana case completely different and foreign to the facts in the case at bar. I would continue to follow the rules we have heretofore followed, and continue to inquire in each given case, whether the application of the rule works a deprivation of the prisoner’s life or liberty without due process of law. In the case at bar, I am convinced that it did not.

I would affirm the trial court on all points.


source: Caselaw Access Project

author: Conley Byrd, Justice. Carleton Harris, Chief Justice, John A. Fogleman, Justice, J. Fred Jones, Justice,

license: Public Domain

text:
    Franklin David BOSNICK, Jr. v. The STATE of Arkansas
    5485
    455 S. W. 2d 688
    Opinion delivered June 29, 1970

      Harold Sharpe, for appellant.

      Joe Purcell, Attorney General; Mike Wilson, Asst. Atty. Gen., for appellee.
   Conley Byrd, Justice.

Appellant Franklin David Bosnick, Jr., was found guilty of first degree murder and sentenced to death. For reversal he relies upon the following points:

1. The lower court erred in its refusal to instruct the jury on second degree murder and the other degrees of homicide.
2. The information charging appellant with first degree murder was fatally defective and will not support a conviction of the crime of first degree murder with the evidence presented.
3: The lower court erred in instructing the jury on Ark. Stat. Ann. § 41-2246 (Repl. 1964), said statute being violative of the 14th Amendment to the U. S. Constitution.
4. The lower court erred in allowing testimony that indicated that appellant had committed another crime not related to the crime of murder.
5. The lower court erred in allowing the introduction of inflammatory photographs of the deceased when the cause of death was admitted.

The testimony in this case is essentially the same as in Bosnick v. State, 248 Ark. 846, 454 S. W. 2d 311, except that in this case Bosnick, Jr., a son of the appellant in the former case, took the witness stand in his own behalf. His mother, Mary Evelyn Tucker, also testified.

Appellant’s testimony shows that he was 17 years old at date of trial. When he was 15, he stole a truck and went to reform school. Before leaving his mother’s home in Louisiana, his father had called and asked him to steal a vehicle and bring it to Arkansas. Instead, appellant, Dewey Ray Murray and Danny McKay came to Arkansas in Dewey Ray Murray’s car. In Arkansas, after drinking beer and whisky furnished by the father, they burglarized a filling station where they obtained some tires, while appellant’s father drove up and down the road outside the station. The tires were put on Dewey Ray Murray’s car. On the date of the killing, appellant, Dewey Ray Murray and Danny McKay again had been drinking beer and whisky supplied by Bosnick, Sr. During the afternoon, appellant entered Gatteys’ store to look for guns and see how many people were in the store. Appellant testified that he told his father that he didn’t want anything to do with robbing Gatteys’ store and that they should call it off. However, appellant stated that his father told him that if he backed out, he, Bosnick, Sr., would whip appellant. He stated that when he went into the store the second time he fired a shot into the shelves and later fired a shot by Mrs. Gatteys’ foot, which scared her so that she could not walk. Appellant then heard a knock at the door and tried to open it, thinking it was his father. After the door was opened, he told whoever was outside to come in but the person fired first and when he felt the fire hit him in the face he started shooting. He said that he was scared of his father and thought his father was shooting at him. Appellant denied having shot over Mrs. Gatteys’ shoulder and denied having heard anyone or anything other than a knock on the door. On cross-examination he stated that after the person who fired at him turned and ran, appellant ran outside and fired. Other testimony by appellant shows that he did not know that it was not his father he was firing at until after he saw his father get in the car after the robbery was over.^

The testimony of Mrs. Tucker shows that appellant was not a bright boy, that while not low enough to go to a mentally retarded class he was always the lowest in his class. He repeated the first and third grades. Promotion from the third grade was on a physical promotion. It was during his third year in the eighth grade that he got into trouble and was put in the reform school. Mrs. Tucker says that Bosnick, Sr., kept calling appellant over her objection. Mrs. Tucker was cross-examined by the prosecuting attorney about assistance or aid she gave appellant during an escape following his original arrest and prior to trial. This was over appellant’s objections.

POINT 1. Under the information here filed against appellant which alleges that he “unlawfully, wilfully and feloniously after premeditation and deliberation and of their malice aforethought did assault, kill and murder Jessie J. Morgan by shooting him with a fire arm,” we hold that appellant’s version of the shooting, if believed, is sufficient to sustain a finding of second degree murder. Consequently the trial court erred in failing to instruct the jury on second degree murder. See King v. State, 117 Ark. 82, 173 S. W. 852 (1915); Montague v. State, 240 Ark. 162, 398 S. W. 2d 524 (1966).

It is suggested that the appellant may not urge the error of the trial court in failing to instruct on second degree murder because appellant offered no instruction on that issue. The record with respect thereto is as follows:

“MR. SHARPE: The defendant would request that you give the jury the contents of Section 43-2152: The jury shall, in all cases of murder, on conviction of the accused, find by their verdict whether he be guilty of murder in the first or second degree; but if the accused confess his guilt, the Court shall impanel a jury and examine testimony, and the degree of crime shall be found by such jury.’
THE COURT: In other words, as I understand it, Mr. Sharpe, you are asking the Court to instruct the jury that they may find the defendant guilty of murder in the first degree, or murder in the second degree, or manslaughter.
MR. SHARPE: Yes, Your Honor.
THE COURT: That request will be refused, because the Court is of the opinion that this is a case where murder was perpetrated, or the murder happened while perpetrating the crime of robbery in which this defendant participated, and therefore can only be murder in the first degree, or nothing, and that is the way the Court will instruct the jury.
MR. SHARPE: Then, as I understand, you will not read 43-2152, which the defendant has requested?
THE COURT: That’s right.
MR. SHARPE: Note our objection to the Court’s ruling.”

Ark. Stat. Ann; § 43-2723, (Repl. Í964), with reference to capital cases, provides:

“In all cases appealed from the circuit courts of this State to the Supreme Court, or prosecuted in the Supreme Court upon writs of error, where the appellant has been convicted in the lower court of a capital offense, all errors of the lower court prejudicial to the rights of the appellant shall be heard and considered by the Supreme Court whether exceptions were saved in the lower court or not; and if the Supreme Court finds that any prejudicial error was committed by the trial court in the trial of any case in which a conviction of a capital offense resulted, such cause shall be reversed and remanded for a new trial, or the judgment modified at the discretion of the court.”

In Maxwell v. State, 236 Ark. 694, 370 S. W. 2d 113 (1963), we pointed out that by virtue of this statute it was not necessary in capital cases for the appellant to formally save exceptions to adverse rulings of the court. To require a defendant to submit an instruction after the court had ruled as it did, above, would be virtually requiring a formal exception to an adverse ruling. For this error we reverse and remand to the trial court.

POINT 2. Appellant’s argument under point 2 really goes to the trial court’s action in submitting an instruction to the jury that murder committed in the perpetration of/or in an attempt to perpetrate arson, rape, robbery, burglary or larceny is murder in the first degree. Appellant made no objection in the trial court to the giving of the instruction. The evidence is certainly sufficient to sustain a conviction on premeditation.

POINT 3. Ark. Stat. Ann. Section 41-2246 (Repl. 1964), provides:

“The killing being proved, the burden of proving circumstances of mitigation that justify or excuse the homicide, shall devolve on the accused, . . .”

There was no error in the trial court’s instructing the jury with reference to this statute under the defense here interposed. See Bagley v. State, 247 Ark. 113, 444 S. W. 2d 567.

POINT 4. We find no merit in appellant’s contention that his mother could not be cross-examined about her conduct in aiding or assisting in his escape. Such evidence was admissible to attack Mrs. Tucker’s credibility and the fact that it implicated appellant in another crime did not make it inadmissible to inquire about on cross-examination.

POINT 5. We find no merit in appellant’s contention with reference to admission of photographs of the deceased. See Bosnick v. State, 248 Ark. 846, 454 S. W. ed 3 811.

Reversed.

Harris, C. J., and Fogleman and Jones, JJ., dissent.

Carleton Harris, Chief Justice,

dissenting. I dissented in Bosnick v. State, 248 Ark. 846, 454 S. W. 2d 311, and everything said in that dissent, applies with equal .force to my feelings in the case now before us.

The more I have contemplated the effect of that decision, the more distressed I have become at the position the court has taken.

The reversal in both cases is based on the fact that the prosecuting attorney charged these defendants with “unlawfully, wilfully and feloniously after premeditation and deliberation and of their malice aforethought did assault, kill and murder Jessie J. Morgan by shooting him with a fire arm”, rather than charging murder committed in the perpetration of robbery. This, said the court, in the opinion handed down on June 1, entitled the elder Bosnick to instructions on the lesser degrees of homicide, and likewise entitles the son to an instruction on second degree murder in "the present case.

I pointed out in the first dissent that under §43-1006 and 43-1007 Ark. Stat. (1964 Repl.), it is not necessary to include a statement of the acts constituting the offense, and it is only necessary to accuse “John Doe” of the crime of murder by setting out the date on which the offense occurred (not absolutely essential) and the county in which the offense occurred, and the person alleged to be murdered. In Thompson v. State, 205, 1040, 172 S. W. 2d 234, we sustained the validity of an information which followed that simple form.

I do not like to reiterate what I have said in a previous dissent, but I cannot refrain from quoting from Clark v. State, 169 Ark. 717, 276 S. W. 849, the case and language being so pertinent to the question at issue today. There, we said:

“In the discussion of hpmicide by poison or in the perpetration of felony, the annotator there said: ‘The courts have frequently decided that where the only evidence of a homicide tends to show that it was committed by poison or in the perpetration of, or an attempt to perpetrate, one of the felonies enumerated in the statute defining murder in the first degree, no instruction on any grade of homicide less than murder in the first degree is necessary, and that one convicted of murder in the first degree on such evidence is not entitled to a new trial because of a failure to charge the law on a lower grade of homicide, or because of an instruction that no conviction of a lower degree can be had.’ ” [My emphasis]

In reviewing the present case, it seems to me that this court has gone even further than in the case involving the elder Bosnick, (handed down June 1), for here, Franklin David Bosnick, Jr. actuálly fired some of the shots that struck Morgan.

The majority relate appellant’s version of the shooting as follows:

“He [appellant] stated that when he went into the store the second time he fired a shot into the shelves and later fired a shot by Mrs. Gatteys’ foot, which scared her so that she could not walk. Appellant then heard a knock at the door and tried to open it, thinking it was his father. After the door was opened, he told whoever was outside to come in but the person fired first and when he felt the fire hit him in the face he started shooting. He said that he was scared of his father and thought his father was shooting at him. Appellant denied having shot over Mrs. Gatteys’ shoulder and denied having heard anyone or anything other than a knock on the door. On cross-examination he. stated that after the person who fired at him turned' and ran, and that he, appellant, ran outside and fired. Other testimony by appellant shows that he did not know that it was not his father he was firing at until after he saw his father get in the car after the robbery was over.”

It is then stated that his version of the shooting “if believed, is sufficient to sustain a finding of second degree murder. Consequently the trial court erred in failing to instruct the jury in second degree murder”.

I completely disagree. Here, a robber killed a person during a holdup; for this court to hold that Bosnick is entitled to consideration on this theory of accidental homicide (and that based on some sort of theory of self-defense), is unthinkable. The fact that he thought somebody was shooting at him, and he fired back, killing the wrong man, would not, even if believed by the jury, justify a reduction to second degree murder. We have held that a defendant may not rely upon the fact that he unintentionally killed the wrong man. In Brooks v. State, 141 Ark. 57, 216 S. W. 705, quoting from Volume 1, Section 17, of Michie on Homicide, we said:

“The thing done follows the nature of the thing intended to be done, and the guilt or innocence of the slayer depends upon the same considerations that would have governed had the blow killed the person against whom it was directed. In determining the criminality of the act of killing it is immaterial whether the intent was to kill the person killed or whether the death of such person .was the accidental or otherwise unintentional result of the intent to kill some one else. * * * The general rule is that when one person is killed by mistake or accident, the character of the offense is the same that it would have been if the person intended had been killed.”

Mr. Morgan, an officer of the law, in endeavoring to protect the property of the Gatteys, knocked at the door, stating that he was "the law”. According to the state’s evidence, appellant directed Mrs. Gatteys to open the door while he stood behind her and fired over her shoulder. He then went outside and she heard additional shots. Morgan was subsequently found dead with both .22 bullets (Bosnick was firing a .22 pistol) and rifle bullets (fired by another person) in his chest. Thus, an officer gave his life in the line of duty while trying to prevent a robbery, and whether the robber, Bosnick, Jr., shot him intentionally or accidentally, is immaterial under my view. To my way of thinking, he was still guilty of first degree murder and was not entitled to any instruction relating to a lesser degree of homicide.

I respectfully dissent.

John A. Fogleman, Justice,

dissenting. I respectfully dissent. Appellant did not at any time offer any instruction defining second degree murder or manslaughter, either voluntary or involuntary. He only requested the reading of Ark. Stat. Ann. § 43-2152 (Repl. 1964), which was not a correct instruction on any degree of homicide, or any jury instruction at all for that matter. It certainly would give a jury no guideline by way of distinction of the degrees of homicide or of punishment. Furthermore, appellant did not object to any instruction given, or to the omission of any issue in the instructions given.

If appellant desired an instruction upon any issue, phase or theory of the case, he should have submitted one to the court embodying a proper statement of the law in that particular, and, not having done so, he cannot complain of the court’s failure to give the instruction.. McKinney v. State, 215 Ark. 712, 223 S. W. 2d 185; Cellars v. State, 214 Ark. 326, 216 S. W. 2d 47; Lucius v. State, 116 Ark. 260, 170 S. W. 1016; Jackson v. State, 92 Ark. 71, 122 S. W. 101; Lowmack v. State, 178 Ark. 928, 12 S. W. 2d 909. See also, Stevens v. State, 231 Ark. 734, 332 S. W. 2d 482. In a case where this court found that a defendant was entitled to a manslaughter instruction, it was held that the failure to give an instruction on that degree of homicide was not reversible error because the defendant’s request was made by an offered instruction which was not proper because it was misleading. Allison v. State, 74 Ark. 444, 86 S. W. 409.

In Cooley v. State, 213 Ark. 503, 211 S. W. 2d 114, the accused was prosecuted on a charge of second degree murder and convicted of voluntary manslaughter. On appeal, he complained because no instruction defining involuntary manslaughter was given. The assignment of error recited:

“The court erred in failing and refusing to instruct the jury as to the law regarding involuntary manslaughter, as requested by the defendant, to which action of the court the defendant at the time objected and saved his exceptions.”

A search of the transcript revealed that no requested instruction was ever presented to the circuit judge. There is no indication that the court was not made aware of the issue by means other than the offer of an instruction stating the law. Rather, the opinion equated the situation to that prevailing in Pate v. State, 206 Ark. 693, 177 S. W. 2d 933, and stated:

* * * if appellant desired an instruction, he should have submitted one to the court “setting forth a proper statement of the law in that particular, and, not having done this, he cannot complain of the court’s failure to give such instruction.”

In Pate v. State, supra, we stated that it was well settled that it is not the duty ,of a trial court to give an instruction on any point unless a correct instruction on that point is asked, quoting from Atkinson v. State, 133 Ark. 341, 202 S. W. 709. There is also a very close parallel between Pate and the case now before us. Pate was charged with, and convicted of, maiming. The similarity of the proceedings is best demonstrated by quoting from the opinion:

Appellant complains that the trial court erred in not granting his request for an instruction on aggravated assault and assault and battery, because these misdemeanors were included in the crime of maiming charged in the information. The record as to this request is as follows: “Mr. Gean: ‘I ask the court to instruct the jury on aggravated assault and assault and battery.’ The court refused this request and the defendant excepted. Counsel did not submit written requests.” Counsel for appellant did submit numerous written instructions which the court was requested to give.

We held:

Appellant, if he desired an instruction of this kind, should have submitted to the court an instruction as to aggravated assault and assault and battery setting forth a proper statement of the law in that particular, and, not having done this, he cannot complain of the court’s failure to give such instruction.

To distinguish these authorities from the record before us would require hairsplitting in the ultimate degree. I respectfully submit that the detour attempted to avoid this obvious obstacle has not circumvented it, because it leads to a dead end via a blind alley. We are required by the statute quoted in the majority opinion to review alleged errors in a case where capital punishment has been imposed whether or not exceptions were saved after an adverse ruling on an objection properly made. The taking of human life, even of one who has actively participated in the brutal assassination of an officer of die law who was only making a conscientious effort to afford the protection, of the law to persons entitled thereto, is a serious matter, and great caution and circumspection should be exercised to see that due process of law has been observed. The statute is accordingly appropriate, and we should, and do, carefully examine rulings on questions properly presented to the trial court. The statute has never been stretched to the point it is now said to reach by the majority, and I submit that it is not that elastic. The requirement of a request for a specific instruction on a specific issue simply cannot be equated with the saving of exceptions. The former serves to clearly present a question for a ruling by the court, as does an objection. An exception simply indicates to the trial judge and the adversary that the exceptor does not acquiesce in the court’s ruling. Clearly the making of a proper record of objections, even in matters pertaining to instructions is not excused by this statute. Fields v. State, 235 Ark. 986, 363 S. W. 2d 905; Jenkins v. State, 222 Ark. 511, 261 S. W. 2d 784.

I would affirm the judgment.

J. Fred Jones, Justice,

dissenting. I respectfully dissent from the majority opinion in this case. Certainly there is no evidence in the record that young Bosnick and his father went to the Gattey’s store with the intention and for the purpose of murdering Deputy Sheriff Morgan, who wasn’t even there. The evidence is clear that the Bosnicks armed themselves for any contingency and went to the store with the intention and for the purpose of robbing the owners of the store. They went prepared to use whatever force was necessary in carrying out their intention and in accomplishing their purpose.

It is obvious from the record that Mr. Morgan was murdered in the perpetration of, or attempt to perpetrate, the robbery, and it is obvious from Ark. Stat. Ann. § 41-2205 (Repl. 1964) that the murder of Mr. Morgan constituted murder in the first degree. Section 41-2205 reads as follows:

"All murder which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of wilful, deliberate, malicious and premeditated killing, or which shall be committed in the perpetration of or in the attempt to perpetrate, arson, rape, robbery, burglary or larceny, shall be deemed murder in the first degree.”

It is my opinion that this statute was specifically designed for the exact situation in the case at bar. Common sense dictates that in armed robbery by outlaw gangs it may be difficult indeed to prove who shot whom and with what weapon.

The appellant contends that he is not guilty of homicide in any degree. According to his version, he only intended to rob and didn’t intend to kill anybody. He only fired his gun in order to paralyze his victim with fear. When he shot the deceased, he did not intend to shoot him at all. He thought he was only firing at his father in self-defense.

It is my opinion in this case, as it was in the case of the appellant’s father, Bosnick v. State, 248 Ark. 846, 454 S. W. 2d 311 that when the state proved the murder of Mr. Morgan in the perpetration of robbery by young Bosnick and his father, the state proved both Bosnicks guilty of murder in the first degree. The allegation in the information that the killing was willful, deliberate, malicious and premeditated, only goes to the charge and not to the crime. If a killing is already first degree murder, the allegation or proof that it was willful, deliberate, malicious and premeditated adds nothing to the degree and a failure to prove the allegation that the murder was willful, deliberate, malicious and premeditated would subtract nothing from the degree. Murder committed in the perpetration of robbery was proved in the case at bar and degree was fixed at first degree by statute.

In my opinion the proof should take precedent over the allegation. This is not a case of alleging the commission of one degree of homicide and proving another; this is a case of alleging first degree murder because of willful intent, and proving first degree murder whether it was willful and intentional or not.

I would affirm the judgment of the trial court.

      This improvement in criminal procedure was made by the people of the State of Arkansas in 1936 when they adopted initiated Act No. 3.

      For civil cases applying the rule see: Wallace v. Riales, 218 Ark. 70, 234 S. W. 2d 199; Sternberg Dredging Co. v. Dawson, 171 Ark. 604, 285 S. W. 32; Missouri Pac. R. Co. v. L. B. Stone Grocery Co., 163 Ark. 247, 259 S. W. 728; St. Louis, I. M. & S. Ry. Co. v. Dupree, 84 Ark. 377, 105 S. W. 878; Choctaw & O. G. R. Co. v. Baskins, 78 Ark. 355, 93 S. W. 757.


author: Frank Holt, Justice. John A. Fogleman, Justice,

text:
    AMERICAN FAMILY LIFE ASSURANCE COMPANY OF COLUMBUS v. George W. REEVES
    5-5286
    455 S. W. 2d 932
    Opinion delivered June 29, 1970

      Pope, Pratt, Shamburger, Buffalo ir Ross, for appellant.

      Paul F. Henson, for appellee.
   Frank Holt, Justice.

This is a suit by appellee to recover benefits provided by a Franchise Group Cancer Policy issued by appellant.

On August 17, 1966, appellee signed an application for a policy of insurance covering both himself and his wife which provided benefits for hospital services and other expenses caused by cancer. Appellant issued this policy, dated September 1, 1966, to appellee for which the premium was paid. According to the terms of the policy, it was issued solely and entirely upon the written answers to the questions contained in the application. The questions, and portions thereof pertinent to the present suit, are as follows:

1. To the best of your knowledge, does any member of the family group to be insured now have or ever had cancer?
2. To the best of your knowledge, has any member of the family group to be insured ever had:
(a) lumps, growths, or swellings;
(b) sores that have not healed;
(c) coughed or vomited blood;
* * *
3. To the best of your knowledge, has any member of the family group to be insured, been under medical treatment during the past six (6) months?
4. If the answer to Question 1, 2 or 3 is “yes ”> use this space to indicate the name of the person treated, date treated,, name and address of the attending physician, cause for hospitalization or treatment.

Appellee answered questions 1, 2 and 3 in the negative, leaving question 4 blank.

Approximately ten months subsequent to the issuance of the policy, it was discovered that appellee’s wife, Mrs. Reeves, was suffering from what appeared to be cancer. Appellee filed a claim which was promptly denied by appellant. On June 26, 1968, appellee filed suit against appellant and prayed damages in the amount of $5,070.00, 12% penalty, reasonable attorney’s fee, and costs. Appellant answered with a general denial. Mrs. Reeves died from cancer on November 19, 1968, and thereafter appellee amended his complaint to allege damages of $7,020.00, 12% penalty, attorney’s fee, and costs. Appellant filed an answer to this amended complaint, asserting by way of affirmative defense that appellee had made misrepresentations in his application for the policy which were fraudulent and material to the risk and that if the true facts were known, the certificate of insurance would not have been issued to insure appellee’s wife. Also, it was pleaded in. the alternative that sufficient diagnosis was not furnished and, further, that the benefits claimed exceeded the benefits payable. The case was submitted to the court sitting as a jury; and the court granted judgment for appellee in the amount of $2,064.00, plus 12% penalty of $247.68, plus attorney’s fee of $500.00. From that judgment appellant brings this appeal.

We discuss in inverse order the first two points which appellant asserts for reversal, namely:

I
The court erred in excluding the testimony of Pekar [a soliciting agent] concerning the underwriting rules of appellant.
II
The uncontroverted evidence shows that there was a misrepresentation in the application which was material to the risk and that if the true facts had been made known, the policy would not have been issued and judgment should therefore have been for appellant.

A determination of these two points requires an examination of Ark. Stat. Ann. § 66-3208 (Repl. 1966). This statute provides:

(1) All statements in any application for a life or disability insurance policy or annuity contract, or in negotiations therefor, by or in behalf of the insured or annuitant, shall be deemed to be representations and not warranties. Misrepresentations, omissions, concealment of facts, and incorrect statements shall not prevent a recovery under the policy or contract unless either:
(a) Fraudulent; or
(b) Material either to the acceptance of the risk, or to the hazard assumed by the insurer; or
(c) The insurer in good faith would either not have issued the policy or contract, or would not have issued a policy or contract in as large an amount or at the same premium or rate, or would not have provided coverage with respect to the hazard resulting in the loss, if the true facts had been made known to the insurer as required either by the application for the policy or contract or otherwise.

Subsections (a), (b) and (c) constitute affirmative defenses which the insurer must plead and prove by a preponderance of the evidence if it is to prevail. Continental Cas. Co. v. Campbell, 242 Ark. 654, 414 S. W 2d 872 (1967).

Appellant contended at trial and argues here on appeal that there were two misrepresentations perpetuated by appellee in that he answered “no” to questions 1 and 2 in the application for insurance. To support its position, appellant introduced evidence tending to show that Mrs. Reeves had had her left eye removed because of a malignant tumor or growth some seven or eight years prior to the effective date of the policy. Appellee, however, testified that neither he nor his wife had ever been informed that the eye was removed as a result of a cancerous condition. In the application form provided by the appellant, the pertinent questions relative to the alleged misrepresentations are qualified by the prefacing words: “To the best of your knowledge * * *.” Ark. Stat. Ann. § 66-3208 provides that answers to the questions in an application are representations and not warranties; therefore, in view of the above quoted prefacing words to the questions in the application, a misrepresentation could occur only if the applicant answered those questions contrary to his knowledge of the true facts.

We have had previous occasion to state:

“The questions propounded in the application * * * call for answers founded on the knowledge or belief of the applicant, and in such cases a misrepresentation * * * will not avoid the policy unless willfully or knowingly made with an attempt to deceive.”

Metropolitan Life Ins. Co. v. Johnson, 105 Ark. 101, 150 S. W. 393 (1912). Although this case, since it was decided long before the enactment of § 66-3208, distinguishes the effect of representations from that of warranties, its rationale is, nonetheless, cogent to the case at bar where the application for insurance expressly required answers only to the best of the applicant’s knowledge. The trial court here, in granting judgment for appellee, necessarily found that the questions were not fraudulently answered; and certainly we cannot say, as a matter of law, that this finding was against the weight of the evidence. Aetna Life Ins. Co. v. Mahaffy, 215 Ark. 892, 224 S. W. 2d 21 (1949).

The appellant, however, pleaded at trial and asserts on appeal its affirmative defense, pursuant to subsection (c) of § 66-3208 that had the true facts been known, the certificate of insurance would not have been issued to insure Mrs. Reeves. As noted above, subsection (c) provides that recovery may be prevented if “[t]he insurer in good faith would * * * not have issued the policy * * * if the true facts had been made known to the insurer as required either by the application for the policy or contract or otherwise.” Logically, in the circumstances of the case at bar, this affirmative defense cannot be construed to be affected by the “[t]o the best of your knowledge” qualifying phrase in the questions of the application. The “true facts” referred to in subsection (c) relate to whether or not there was a pre-existing malignant growth, as contended by appellant, and not to whether the appellee had actual knowledge of this condition.

Appellee, on cross-examination, stated that he was aware that the removal of his wife’s left eye was required because of a growth, although “no one ever told me” it was cancerous. Appellant argues that this prior knowledge of the growth established a fraudulent misrepresentation since appellee answered “no” to ques tion 2 in the application — i. e.\ “To the best of your knowledge, has any member of the family group to be insured ever had: (a) lumps, growths, or swellings; * * * .” Appellee, however, gave this explanation for his answer: “* * * It didn’t show. As far as being a lump or anything else, I don’t know whether it was or not.” The total context of question 2 (i. e., “(a) lumps, growths, or swellings; (b) sores that have not healed;” etc.), must be considered, and apparently the trial court believed the appellee’s version that the question referred to external or visible growths. We cannot say that there was substantial evidence from which the trial court could have found that appellee gave a fraudulent opinion. See Continental Cas. Co. v. Campbell, supra. Nonetheless, appellee appears to have had firsthand knowledge of a growth; and his testimony, therefore, was sufficient to establish the fact that Mrs. Reeves had a growth prior to the application for insurance. From this, appellant could have properly asserted its subsection (c) affirmative defense.

We now come to appellant’s assertion that the exclusion of the testimony of its former soliciting agent, Herbert Pekar, was error. We must agree this requires reversal. In an effort to prove that it would not in good faith have issued its policy if the true facts were known, appellant attempted to introduce evidence regarding its practice of accepting or rejecting applications through the testimony of Pekar, one of the two agents who presented the Franchise Group Cancer Policy to the group which included Reeves and who were responsible for forwarding any applications to the appellant. Appellee objected to Pekar’s testimony in that as a mere soliciting agent, he was not competent to state appellant’s underwriting procedure for accepting or rejecting applications. The objection was sustained, and appellant made an offer of proof by Pekar that he was directed not to send any application into the home office wherein either question 1 or 2 was answered in the affirmative. We think this proffered testimony was admissible. See Lin Mfg. Co. of Arkansas, Inc., et al v. Courson, 246 Ark. 5, 436 S. W. 2d 472. It was prejudicial error to exclude Pekar’s testimony since appellant had the burden of proving its subsection (c) affirmative defense that its agent would not have forwarded the application. Of course, Pekar, if allowed to testify in this regard, would have been subject to cross-examination as would any other witness, or appellee might have produced witnesses to refute his testimony. Further the fact that he was an employee of appellant can be said to touch upon his credibility. See Old Republic Ins. Co. v. Alexander, 245 Ark. 1029, 436 S. W. 2d 829.

The offer of proof by Pekar as to question no. 2 in the application appears deficient as to materiality. In order to prevail in its subsection (c) defense, appellant must show that the growth was material to its risk. In Life & Cas. Ins. Co. v. Smith, 245 Ark. 934, 436 S. W. 2d 97, we said:

“If the matter omitted or incorrectly stated could logically have no bearing on the assumption of the risk then it could not be successfully argued that the insurer’s ‘good faith’ defense should prevail.”

Finally, if the appellee should again be successful at a retrial of this cause, his recovery must be limited to the expenses incurred subsequent to the time that Mrs. Reeves’ condition was first sufficiently diagnosed in 1968 as cancer as required by the terms of the insurance contract.

Reversed and remanded.

Fogleman, J., dissents.

John A. Fogleman, Justice,

dissenting. I do not agree that subsection (c) of Ark. Stat. Ann. § 66-3208 (Repl. 1966) may be invoked on the basis of the true facts, without regard to the qualifying words “[t]o the best of your knowledge” prefacing the questions in the application. By its own words, this subsection relates only to risks which would have been refused, or which would have been accepted only on a conditional or limited basis, or at a higher premium, if the true facts had been made known to the insurer “as required either by the application for the policy or contract or otherwise.” The application for the policy or contract required a good faith answer to the best of appellee’s knowledge only. As pointed out in the majority opinion, there was substantial evidence that the answer of appellee as to his lack of knowledge of his wife’s previous cancer was not a misrepresentation, omission, concealment or incorrect statement.

At least as to the answer to question 1, this makes the premise of the majority opinion that the “true facts” that there was an earlier malignancy dependent upon the words “or otherwise.” If these words are to be given their broadest general meaning so that the insurance company could use this section as a defense in any case where the “true facts” with reference to an increased hazard have been disclosed by any means from any source, then the drafters of the code have been guilty of a shameful waste of verbiage. They should have put a period in subsection (c) after “known to the insurer.” They could also have economized on words by eliminating the word “made” immediately preceding. They should not be given such a broad general meaning. The words “or otherwise” obviously relate to the words “as required by the application,” so that the alternatives are:

* .* * if the true facts had been known to the insurer (1) as required by the application for the policy or contract, or
(2) as required otherwise.

This construction is mandatory because all of §66-3208(1) relates to statements by an insured or annuitant in an application for a policy or a contract,, or in negotiations for a policy or a contract. If there were not negotiations other than through application the statutory provision would have ended with the words “application for the policy or contract” omitting the alternative provided by the words “either” and “or otherwise.”

Consequently, the true facts do relate to appellee’s knowledge of conditions because of the wording of the questions in the application, in keeping with the language “as required * * * by the application * * * or [as required by appellant] otherwise.” Since there was substantial evidence that Reeves did not know his wife had previously had cancer, the judgment should stand insofar as that question is concerned because Pekar’s proffered testimony would have had no bearing at all, in view of the finding that Reeves’ answer to question 1 was neither a misrepresentation, concealment nor incorrect statement.

I realize that the majority opinion is hinged partially upon the evidence showing clearly that appellee did know that his wife had previously had a growth. Whatever misrepresentations, concealment or incorrect statement was involved here did not entitle appellant to cancel the policy or constitute a defense to appellee’s claim. No evidence was offered by appellant, through Pekar or anyone else, to show that the company would reject the application, that the agent would not be permitted to accept it or send it into the home office, that the company would not have issued the policy or that the premium would have been increased, that the policy would have been limited in amount or coverage, or that the statement was material to acceptance of the risk or the hazard assumed, if the answer to question 2 was in the affirmative. Pekar’s testimony in this regard was significantly limited to the effect of an affirmative answer to question 1. He only stated that, in case of an affirmative answer to question 1 or 2, the applicant would have been required to indicate the name of the person treated, the name and address of the attending physician, and the cause for hospitalization or treatment. Weirdly enough, the question with reference to lumps, growths or swellings is not limited to those for which a member of the family had been treated, attended or hospitalized. Perhaps the failure of appellant to pursue this facet of the case was deliberate and significant. We certainly should not say that the fact that a member of the family once had a lump, growth or swelling was, as a matter of law, material to the acceptance of the risk or that the company would necessarily have rejected the application or limited the policy.

I would, however, modify the judgment because I feel that the the policy limits benefits to a period beginning 10 days before diagnosis. Under the evidence here, only $920 in benefits accrued after the earliest possible beginning date. I would reduce the judgment from $2,064 to $920. This would automatically eliminate penalties and attorney’s fees. Even if the full judgment were affirmed, there was never a time when appellee claimed, or when appellant could have confessed judgment to, an amount that small, so I agree that the award of penalty and attorney’s fees was error.

      For an application of the words in a statute, see Monroe v. Monroe, 226 Ark. 805, 294 S. W. 2d 338.

      I agree that Pekar’s testimony was admissible, but the court’s later finding made its exclusion harmless error.