author: J. Fred Jones, Justice. Carleton Harris, Chief Justice,

text:
    Robert L. LISENBY v. STATE of Arkansas
    CR 76-47
    543 S.W. 2d 30
    Opinion delivered November 8, 1976 (In Banc)

      Reinberger, Eilbott & Smith, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Jack Lassiter, Asst. Atty. Gen., for appellee.
   J. Fred Jones, Justice.

The appellant Robert L. Lisenby was charged on information Filed by the prosecuting attorney with the crime of “assault with intent to kill by use of a firearm.” He was found guilty at a jury trial and sentenced to 27 years in the state penitentiary with at least nine years to be served before parole.

On appeal to this court Lisenby has designated eight points on which he relies for reversal, but having concluded that he was entitled to a directed verdict as contended under his third point, we Find it unnecessary to discuss the other assignments.

The information Filed against Lisenby also included a co-defendant, Barney B. Norton, and the specific charge in the information was as follows:

The said defendants on or about the 2nd day of February, 1975, in Garland County, Arkansas, did unlawfully, wilfully and with malice aforethought make an assault upon one Norman Hall and Richard James with a deadly weapon, to-wit: a handgun by then and there shooting at them, the said Norman Hail and Richard James with said gun then and there had and held in the hands of him, the said Barney B. Norton, with the unlawful and felonious intent then and there, them, the said Norman Hall and Richard James wilfully and maliciously to kill and murder, in violation of Ark. Stats. Ann. 41-606, and the use of said Firearm in the perpetration of the said assault being in violation of Ark. Stats. Ann. 43-2336.

The facts appear as follows: In the early morning hours of February 2, 1975, one Norman Hall, a security guard at the Diamondhead Resort in Garland County, discovered that the “Pro Shop” at the resort had been burglarized and a quantity of merchandise had been removed therefrom. A golf cart was also missing and the golf cart was located near the premises adjacent to Highway 290. The canvas top of the golf cart had been removed and placed on the ground near the cart and the stolen merchandise was placed on top of the canvas top.

Mr. Hall and Richard James, in charge of golf course maintenance and construction, secreted themselves where they could watch the merchandise and around 6:30 A.M. an automobile stopped near the merchandise and two men got out of the automobile. The automobile traveled a short distance where it turned around and stopped again at the same location where it had first stopped. The two men went to the golf cart cover and started back toward the automobile carrying the canvas cover with the merchandise thereon between then. Mr. Hall shouted to the two men to halt and fired a pistol shot over their heads. The appellant Lisenby stopped and fell forward to the ground and his companion ran a distance of about 360 feet where he entered the waiting automobile. Mr. Hall then approached Lisenby and ordered him to get up from the ground, which Lisenby did, and at this point three shots were fired from the direction of the automobile. The bullets struck the ground near where James, Hall and Lisenby stood and Mr. Hall placed Lisenby between himself and the direction the shots were coming from.

A crime of assault with intent to kill and the penalty provided therefor are set out in Ark. Stat. Ann. § 41-606 (Repl. 1964) as follows:

Whoever shall feloniously, wilfully and with malice aforethought, assault any person with intent to murder or kill, or shall administer or attempt to give any poison or potion with intent to kill or murder, and their counselors, aiders and abettors, shall, on conviction thereof, be imprisoned in the penitentiary not less than one [1] nor more than twenty-one [21] years.

Thus, it is seen that “feloniously, wilfully and with malice aforethought” are necessary elements of an assault with intent to murder or kill, and Lisenby was charged in the language of this statute. To sustain an indictment for an assault with intent to murder, the evidence must be such as would warrant a conviction for murder if death had ensued from the assault. McCoy v. State, 8 Ark. 451; Lacefield v. State, 34 Ark. 275; Allen v. State, 117 Ark. 432, 174 S.W. 1179; Francis v. State, 189 Ark. 288, 71 S.W. 2d 469. Of course, intent to kill may be inferred from acts and circumstances of the assault but it cannot be implied as a matter of law. Ward v. State, 208 Ark. 602, 186 S.W. 2d 950.

The above comments are especially important in the light of additional statute, Ark. Stat. Ann. § 41-2507 (Repl. 1964), which provides as follows:

If any person shall shoot at any person, with the intent to kill or wound, although he may miss or fail to hit the person aimed at, he shall be deemed guilty of an attempt to kill or maim, and on conviction shall be fined not exceeding three thousand dollars [$3,000], and imprisoned not exceeding seven [7] years.

In Lacefield v. State, supra, the distinction as to intent becomes important as between the two statutes. In Lacefield we said:

The proposition is incontrovertible that to sustain an indictment for an assault with intent to murder, the evidence must be such as to warrant a conviction for murder had death ensued from the assault.

This court has said that in order to convict for assault with intent to kill, the state must prove without a reasonable doubt that an accused committed an assault and that it was with intent to murder. Allen v. State, 117 Ark. 432, 174 S.W. 1179. It is elementary under Arkansas law that one who is present, aiding and abetting in the commission of a crime is equally guilty as reiterated in Cheeks v. State, 169 Ark. 1192, 278 S.W. 10; Woolbright v. State, 124 Ark. 197, 187 S.W. 166, and Lacy v. State, 177 Ark. 1056, 9 S.W. 2d 314. These were assault with intent to kill cases but in them the accused, unlike Lisenby, were aiding and abetting in the commission of the crime charged or at least there was evidence from which the jury could have so found.

In 23 C.J.S. § 786 (2) is found the following:

In order to be an accomplice, one must in some way be connected with the crime charged against accused. Thus, it is not sufficient that he was connected with the accused in commission of other offenses.

See State v. Walters, 209 P. 349, 105 Or. 662. See also Coleman v. State, 121 A. 2d 254; People v. Webb, 25 N.Y.S. 2d 554, reversed on other grounds, 26 N.Y.S. 2d 386; State v. Bowman, 70 P. 2d 458, 111 A.L.R. 1393; Washburn v. State, 318 S.W. 2d 627; Warren v. State, 132 S.W. 136. See also Soloman v. Commonwealth, 270 S.W. 780; People v. Cowan, 101 P. 2d 125; Warren v. Commonwealth, 333 S.W. 2d 766.

There is considerable difference in the case at bar and such cases as Bosnick v. State, 248 Ark. 846, 454 S.W. 2d 311. In Bosnick a father and son and two other young men were in the process of robbing a store when a policeman appeared on the scene and two of the robbers shot and killed the policeman. Each participant was charged with first degree murder. Bosnick, Sr., took the other defendants to the grocery store; all of them were armed and Bosnick, Sr., waited outside the store while the other three carried out the robbery with stocking masks over their faces. The defendants in Bosnick were not charged with the homicide in perpetration of robbery, but were simply charged with first degree murder. We pointed out in Bosnick that when a group plans an armed robbery, “Each one of the party would be responsible for everything done which followed directly and immediately in the execution of the common purpose as one of its probable and natural consequences.” Citing Clark v. State, 169 Ark. 717, 276 S.W. 849 (1925). Then in Bosnick we continued as follows:

[T]he jury could have attributed to the elder Bosnick a full share of responsibility for what took place inside the Gatteys store, even though the original plan did not contemplate a homicide. Henry v. State, 151 Ark. 620, 237 S.W. 454 (1922). But the jury was not required to do so. By the decided weight of authority, and by what we regard as the better rule, the jury may assign degrees of guilt among the conspirators in accordance with their respective culpability.

In the case at bar the evidence is clear that Lisenby was associated with Norton and another individual in the theft of the merchandise from the Pro Shop, but Lisenby was apprehended in the theft of the merchandise. He offered no resistance to his arrest and was under the observation and complete control of the arresting officers when the shots were fired toward him and the officers. All three participants in the attempted theft of the merchandise abandoned the merchandise when the officers appeared, Lisenby surrendered and the other two ran away. After Lisenby was completely in custody offering no resistance whatever, one of his two former companions in fleeing from the scene fired three shots in the direction of Lisenby and the officers, and that was the sole basis for the charge against Lisenby of assault with intent to murder or kill.

As already pointed out, to sustain a conviction for assault with intent to kill the evidence must be such to have sustained a conviction for murder had the homicide occurred. In Jones v. State, 89 Ark. 213, 116 S.W. 230, the appellant was convicted of the crime of assault with intent to kill. The evidence was to the effect that the appellant chased the prosecuting witness with an ax threatening to kill him, but never did get in striking distance. In reversing the judgment, this court said:

There was no evidence to show that appellant at any time had the present ability to injure Carter in the manner alleged in the indictment. It is argued that appellant might have thrown an ax at Carter and have injured him with it in that manner. But the proof does not show that appellant made any effort to injure the prosecuting witness by throwing the ax at him. Even if an injury could have been inflicted in that manner, it was not attempted. Appellant must be convicted, if at all, upon the attempt he actually made, and not upon what he might have'done had he made the attempt. So the evidence is not sufficient to sustain the verdict, and the court should have set it aside for that reason.

In the case styled Slim and Shorty v. State, 123 Ark. 583, 186 S.W. 308, peace officers were advised of a train robbery and attempted to arrest the appellants who had alighted from the train. Upon approaching the appellants the officers said to them: “Boys, we want you; put up your hands.” (The appellants refused to give their names and were referred to as Slim and Shorty). The evidence was to the effect that both appellants were armed when apprehended and that they “started for their guns” when the officers accosted them. Slim’s gun hung in its holster and Deputy Sheriff Pierce told another deputy to watch Slim, Pierce then told Shorty not to pull his gun. Shorty, nevertheless, pulled his gun and pointed the gun at the face of Deputy Finley. Finley and Pierce fired about the same time and Shorty fell. Pierce then immediately looked at Slim and Slim’s hands were going up and his gun fell out in front of him. Both appellants were indicted for the crime of assault with intent to kill and also jointly indicted for the crime of resisting an officer. They both were convicted on the charge of resisting an officer and Shorty was convicted of assault with intent to kill. In reversing Shorty’s conviction for assault with intent to kill, this court said:

There was testimony tending to show that when the officers approached the appellants the driver ran the motor car up within a few feet of them and the officers jumped out with their guns presented towards the appellants before anything was said by the officers. A majority of the court is of the opinion that the testimony is not legally sufficient to sustain a conviction of appellant Shorty for the crime of assault with intent to kill, and that the court erred in not granting his motion for a new trial as to this offense.

In the Kentucky case of Warren v. Commonwealth, 333 S.W. 2d 766, the appellant Warren, Everett Perry, and three other men, were jointly indicted for the murder of Woodrow Smith. Smith operated a small coal mine and the appellant and Perry were members of a local union which was on strike. The homicide grew out of an effort on the part of the appellant Warren, Perry, and other union members to force Smith and his employees to join the union and participate in the strike. Warren and Perry and other members of the union armed themselves and converged on Smith’s coal mine. As they approached the mine, Perry dropped out of the group and suggested to Warren that he do likewise but Warren insisted on going on. Smith, in an attempt to elude the group, passed by where Warren and Perry were standing and Perry warned Smith that the group was going to kill him. Smith threw his own pistol to the ground and Warren retrieved it. Perry asked for the pistol and Warren refused to surrender it but put it in his pocket and walked off. Perry walked to where Smith had stopped and advised him that they had come up to talk with him about joining the union. At this point other shooting started. Perry saw Smith fall over and saw Warren standing about six feet away with a gun in his hand. He called Warren a.“damn fool” and Warren walked away. The question on appeal was whether the court erred in not giving an instruction that if the jury believed Perry was an accomplice of the defendant, Warren could not be convicted without corroborative evidence, and in affirming the judgment the court said:

Perry certainly started out with the mass movement of the striking miners. But it is clear from his undenied testimony that when violence developed, he not only refused to participate in the intimidation of Smith, but sought to prevent Warren from harming him. The familiar definition of an accomplice is one who participates in the commission of a crime, whether as a principal aider and abettor or accessory before the fact. The usual test is whether or not the witness could be convicted of the crime with which the accused is charged. Soloman v. Commonwealth, 208 Ky. 184, 270 S.W. 780. Mountjoy v. Commonwealth, 262 Ky. 426, 90 S.W. 2d 362. Mere association with the accused or mere presence at the time of the commission of the offense does not make one an accomplice. Head v. Commonwealth, Ky., 310 S.W. 2d 285.

In the Oregon case of State v. Walters, 209 P. 349, two soldiers, Walters and Tillman, while A.W.O.L., committed several robberies in Portland. Policemen Palmer and Thorpe intercepted Walters and Tillman on a street corner and quoting from the opinion the following occurred:

When the officers met the soldiers at the corner, Thorpe said: “Boys, just a minute; I want to see you.” Tillman “stopped right there,” but Walters “walked right on — stepped off the curb.” Palmer gave his attention to Walters, and Thorpe gave his attention to Tillman. Thorpe ordered Tillman to take his hands out of his pockets, and Tillman “had just started to pull his hands out of his pockets when Walters shot Palmer.” Thorpe immediately took his “gun off of” Tillman and shot at Walters, and it is probable that this was the shot which wounded Walters in the shoulder.
Walters proceeded about 14 feet after he and Tillman were accosted by Thorpe, and Walters was only 5 or 6 feet from Palmer when he shot Palmer.

Tillman testified for the state at Walters’ trial and testified as to the robberies prior to the homicide. It appears that the statutes of Oregon contain a subdivision in § 868 “that the testimony of an accomplice ought to be viewed with distrust,” and the appellant assigned error in the trial court’s failure to give an instruction to that effect. In disposing of this contention the Supreme Court of Oregon said:

Tillman was an accomplice in the commission of the three robberies; but the record does not disclose a word of evidence having the slightest tendency to show that he participated in or was connected with the homicide. Tillman was not an accomplice in the killing of Palmer, and therefore the trial judge properly omitted to instruct the jury about viewing the testimony of an accomplice with distrust.

We conclude that the same situation exists in the case at bar. There is no evidence whatever, either circumstantial or otherwise, that Lisenby entertained any malice aforethought, or any intent to murder, or kill anyone, and there is no evidence that he counseled, aided or abetted in firing the shots toward him and the officers. There is not even any evidence that Lisenby participated in the burglary. It is true he was participating in retrieving the stolen merchandise when accosted by the officers, but he had submitted to arrest and his former companions had made good their escape when the shots were fired. Whether the shots were fired at Lisenby, the two officers, or at all three, is not in evidence. It would require the highest degree of speculation to say they were fired at the officers to effect Lisenby’s release, or fired at Lisenby to silence him. It would also be pure conjecture and speculation to say the shots were fired as a probable and natural consequence of burglary under the evidence of record in this case.

The judgment is reversed and the cause dismissed.

Harris, C.J., concurs in part, dissents in part. Fogleman, J., dissents.

Carleton Harris, Chief Justice,

concurring in part, dissenting in part. I agree with the Court that this case should be reversed, but I would not reverse and dismiss; rather, I would remand for another trial.

It is my view that the Court committed error in giving its instruction No. 5. That instruction reads as follows:

When persons combine to do an unlawful thing, if the act of one, proceeding according to common plan, terminates in a criminal result, though not the particular result meant, all are liable.
If the defendants, or either of them, drew a weapon on Norman Hall and Richard James, their victims, with the common intent to effect an unlawful theft of property belonging to the Diamondhead Pro Shop or to prevent apprehension by the victims while engaging in the commission of an unlawful theft or in furtherance of such criminal act, and, by reason of such conduct on their part, such weapon was fired at the victims, or either of them, with the present capability to kill them, then each of the defendants, being present, aiding and abetting the acts and conduct aforesaid, would be guilty of an unlawful assault and, if such acts were done with malice, then the defendants would be guilty of assault with intent to kill. Malice shall be implied when no considerable provocation appears or when all the facts and circumstances manifest an abandoned or wicked disposition. Intent to kill may be inferred from facts and circumstances tending to reveal the state of mind of the defendants. It is not necessary for the state to prove that defendants weighed in their minds the consequences of a course of conduct before they acted.
In other words, a man may be guilty of a wrong which he did not specifically intend if it came naturally, or even accidentally, from some other specific or general evil purpose.

This instruction, in my view, told the jury that if they found that either Norton or Lisenby fired a weapon at the officers under the circumstances set out in the majority opinion, then both were guilty of an unlawful assault, and if the firing was done with malice, then both would be guilty of assault with intent to kill. It was undisputed that the other party who had been with Lisenby had fired a weapon in the direction of the officers.

The instruction was specifically objected to, it being appellant’s contention that he was entitled to have the jury pass upon the question of whether his participation with Norton had terminated at the time of his surrender to the officers, and that the Court’s instruction did not afford the jury this opportunity. I agree. It is true that counsel did not offer a written instruction, but to have done so would have been futile since the Court in announcing the instructions that it intended to give stated:

Now, gentlemen, you may make your objections to the Court’s instructions into the record. And you may also make your objections because I am not giving whatever instructions you think should be given in place of the Court’s instructions. I have taken the liberty of studying this thing fairly well.

I would reverse, but remand for another trial.

John A. Fogleman, Justice, dissenting. I do not agree that there was no substantial evidence to support the jury verdict finding appellant Lisenby guilty of assault with intent to kill. The “pro shop” at Diamondhead was burglarized. The burglars Norton, Lisenby and an unidentified person were in the process of transporting the loot when surprised by Hall, the chief of security at Diamondhead, and his companion, Richard James. Lisenby did not voluntarily surrender. He dropped the canvas on which the stolen goods were being carried and fell to the ground when a pistol shot was fired over his head by the security guard. His companion ducked behind a bank, fled, and was picked up by Norton, who was driving the car from which Lisenby and this companion had alighted and which, obviously, was to be used by the three to haul away the loot. The first shots fired from the direction of the automobile rang out about the time Lisenby arose on Hall’s command to do so. The bullet struck a bank right beside Hall, who raised up and fired back. Hall commanded, “Everybody get down,” after the driver had gotten out of the automobile and fired another shot. After Hall returned the fire he saw someone, apparently the unnamed companion, running toward the car. After a third shot was fired from the direction of the automobile, the driver and this other person got into the car and left.

James testified that he had hold of Lisenby when the firing started, “like my arm around his throat or something like that” and that he was behind Lisenby, so that Lisenby was facing in the direction of the gunfire. He said he, Lisenby and Hall all were seeking to get up a bank and over a fence seeking cover, but that he held on to Lisenby all the while. James said that he pushed Lisenby to the ground during the firing. Some of the shots struck near James and Lisenby. Lisenby was not armed when arrested. He offered no “actual resistance” to Hall and James. He was in the custody of Hall and James throughout the shooting. Hall said he cooperated.

These facts are stated in the light most favorable to the state, as we are required to view them, but they are not disputed or in substantial conflict. It is obvious that Norton, Lisenby and their companion were apprehended while their crimé of burglary and larceny was in progress. Asportation of the stolen property was an integral part of the crimes. The majority’s statement that there is no evidence that Lisenby participated in the burglary is unwarranted. His possession of the stolen property is itself sufficient evidence to have sustained Lisenby’s conviction of that offense, in the absence of an explanation satisfactory to the jury. Gatewood v. State, 259 Ark. 325, 532 S.W. 2d 749; Williams v. State, 258 Ark. 207, 523 S.W. 2d 377; Kelly v. State, 191 Ark. 674, 87 S.W. 2d 400; Duty v. State, 212 Ark. 890, 208 S.W. 2d 162.

There was never a time when Lisenby voluntarily disassociated himself from the criminal activities of his co-conspirators and accomplices or communicated any withdrawal from the criminal enterprise (if indeed he did withdraw) to his confederates, or either of them. A reasonable inference that the jury might draw from the testimony is that Norton and the third man, who could have made good their escape without returning to a place on the road from which they could shoot at Hall and James, were endeavoring to recapture the loot and free Lisenby, who was unarmed. The original criminal venture was not terminated before Norton and the third person fled, or at least the jury had the right to so find, and Lisenby was fully responsible for all their acts.

Our law as to the responsibility of one conspirator for the acts of his co-conspirator is well settled. In Caton v. State, 252 Ark. 420, 479 S.W. 2d 537, we said:

A conspiracy is a combination between two or more persons to do something unlawful, and it may be established by circumstantial evidence as well as by direct evidence. *** When the combination of persons to do an unlawful act is shown, each of them is liable for the act of one proceeding according to the common plan, if it terminates in a criminal result. ***

In Johnson v. State, 252 Ark. 1113, 482 S.W. 2d 600, we said:

*** Each conspirator or participant is responsible for everything done which followed directly and immediately in the execution of the common purpose as one of its probable and natural consequences. Bosnick v. State, 248 Ark. 846, 454 S.W. 2d 311. The burglary and larceny, if committed, or the scheme to commit these crimes, if it existed, did not terminate until the perpetrators had left the scene. Clark v. State, 169 Ark. 717, 276 S.W. 849. The acts of the participants in an effort to escape are a part of the continuous scheme or conspiracy and the act of one is the act of all. Wilson v. State [188 Ark. 846, 68 S.W. 2d 100]; Clark v. State, supra; Maxwell v. State, 188 Ark. 111, 64 S.W. 2d 79. In the cases cited in Wilson from other jurisdictions, it is clearly recognized that the law holds a participant in a crime responsible for the acts of another acting in concert with him or in the furtherance of a common object, design or purpose. ***

It is also clear that under our law the acts of one co-conspirator in furtherance of the common design may be shown in evidence against his associates. Local Union No. 858 v. Jiannas, 211 Ark. 352, 200 S.W. 2d 763; Gurein v. State, 209 Ark. 1082, 193 S.W. 2d 997; Butt v. State, 81 Ark. 173, 98 S.W. 723. “ [I]t is well settled that each conspirator is responsible in any place where any overt act by any of his co-conspirators is done.” Wilkin v. State, 121 Ark. 219, 180 S.W. 512.

We have spoken clearly on the matter of accomplice liability for a criminal act where a specific intent is an element of that offense. In Carr v. State, 43 Ark. 99, we said:

The law upon this subject is, that “a man may be guilty of a wrong which he did not specifically intend, if it came naturally or even accidentally from some other specific, or a general, evil purpose. When, therefore, persons combine to do an unlawful thing, if the act of one, proceeding according to the common plan, terminate in a criminal result, though not the particular result meant, all are liable.” Bishop Cr. Law, Sec. 636, and authorities there cited.

In Spear v. State, 184 Ark. 1047, 44 S.W. 2d 663, a case involving a charge of murder, with malice aforethought and after premeditation and deliberation, in common law form, and not as a felony-murder, the court instructed the jury as follows:

*** Court instructs the jury that if you find from the evidence beyond a reasonable doubt that the defendant, Percy Spear, in Crawford County, Arkansas, and within three years from the finding of this indictment, entered into a conspiracy with any other person or persons to rob the Reynolds Drug Store in the city of Van Burén, Arkansas, and that the defendant with such other person or persons with common intent to rob same did rob said Reynolds Drug Store with a common purpose and you further find from the testimony beyond a reasonable doubt that by reason of such common conduct on their part and while carrying out such common purpose and intent, an altercation arose on account of the carrying out of such common conduct in which Elmore Brown was shot and killed by either one of the persons so engaged, the defendant, Percy Spear, being present aiding and abetting in the acts and conduct aforesaid of his companion or companions, then each would be guilty of an unlawful homicide in some degree, and if the fatal injury was inflicted upon Elmore Brown with malice aforethought but without premeditation or deliberation, then the defendant would be guilty of murder in the second degree, and if the fatal injury was inflicted on Elmore Brown with malice aforethought and after premeditation and deliberation by either one of the three, then the defendant Percy Spear would be guilty of murder in the first degree, and if the fatal injury was inflicted without malice and without deliberation, but upon a sudden heat of passion caused by provocation apparently sufficient to make the passion irresistible, then the defendant would be guilty of manslaughter.

The instruction was challenged on the ground that felony-murder had not been charged. It was held to be correct for the following reason:

*** The general rule is that all who join in a common design to commit an unlawful act, the natural and probable consequence of which involves the contingency of taking life, are responsible for a homicide committed by one of them while acting in pursuance or furtherance of the common design, although the homicide might not have been in contemplation of the parties when they conspired to commit the unlawful act, and although the actual perpetrator is not identified.

The court relied upon Carr v. State, supra, and elaborated upon the authority supporting the Carr rule. It was an Ohio case, Stephens v. State, 42 Ohio St. 150, in which it was held that each of several associated to commit the crime of robbery was presumed to have intended to authorize the other to kill if it became a necessary means to the consummation of the crime. We said that the instruction, held correct under the indictment, made the crime charged murder in the first degree as to the three participants in the robbery, if the homicide was committed with malice aforethought, deliberation and premeditation by either one of the three. In that case the circumstantial evidence clearly indicated that the accused was inside the store where the robbery was committed at the time of the shooting and that the shot which killed the victim was fired outside the store by a participant who never entered the store, that the accused did not actually participate in the shooting and that the victim of the shooting was not the victim of the robbery. Under the rationale of that case, Spear would have been as much responsible for the assault upon the victim of the shooting if death had not ensued as he was for the killing. See also, Turnage v. State, 182 Ark. 74, 30 S.W. 2d 865.

The holding in Boone v. State, 176 Ark. 1003, 5 S.W. 2d 322 is to the same effect. Citing Carr as authority, we said:

The general rule is that, where persons combine to do an unlawful thing, if the act of one, proceeding according to the common plan, terminated in a criminal result, though not the particular result meant, all are liable.***

It should be noted that a specific intent to kill was a necessary element of first degree murder with malice aforethought and after premeditation and deliberation, but not of felony-murder. Tippett v. State, 224 Ark. 981, 278 S.W. 2d 110; Clark v. State, 169 Ark. 717, 276 S.W. 849 (on rehearing). It is significant, however, that we have embraced the concept that an accomplice may be found guilty of first degree murder where specific intent is a required element, even though he did not intend to take life. This is a clear acceptance of the principle that the intent of the actor who commits an assault while engaged in the execution of a crime according to a common design may be imputed to his accomplices who entered into that design.

More importantly we have actually applied the principle of accomplice liability to a charge of assault with intent to kill. In Lacy v. State, 177 Ark. 1056, 9 S.W. 2d 314, the court refused to instruct the jury that the accused would not be guilty of assault with intent to kill unless he and his accomplice went to the place the victim was for the purpose of injuring or doing bodily harm to him. We affirmed, saying:

*** If appellant and Sexton entered into a conspiracy to go to the Barnes home on an unlawful mission, which is conceded, and the act of one of them, proceeding according to the common plan, terminated in a criminal result, both would be liable, although not the particular result intended. Boone v. State, 176 Ark. 1003, 5 S.W. 2d 322. Therefore the above instruction did not correctly state the law in requiring the jury to find that they went to the Barnes home for the purpose of doing Davidson bodily harm or injuring him.

There was certainly sufficient evidence that the crime in which all three of the persons involved participated had not been terminated at the time the shooting took place. There is a unity of criminal action between the execution or attempted execution of a crime and the flight from the scene. Commonwealth v. Kelly, 337 Pa. 171, 10 A. 2d 431 (1940). Both the securing of the plunder and escape, where there are unities of time, manner and place, may be so immediately connected with a crime as to be a part of its commission. People v. Walsh, 262 N.Y. 140, 186 N.E. 422 (1933); People v. Jackson, 20 N.Y. 2d 440, 231 N.E. 2d 722 (1967), cert. den. 391 U.S. 928, 88 S. Ct. 1815, 20 L. Ed. 2d 668. The crime was still in progress so long as the essential ingredient of asportation continued. Carter v. U.S., 96 U.S. App. D.C. 40, 223 F. 2d 332 (1955), cert. den. 350 U.S. 949, 76 S. Ct. 324, 100 L. Ed. 827. Any effort to escape with the loot was a furtherance of the common purpose of the participants here. People v. Anthony, 90 Cal. App. 2d 122, 202 P. 2d 776 (1949); People v. Goree, 30 Mich. App. 490, 186 N.W. 2d 872 (1971). The underlying crime is not complete when some of the joint conspirators are in possession, but not in absolute control, of the stolen property. Commonwealth Heinlein, 256 Mass. 387, 152 N.E. 380 (1926). The crime continues until the thief has unmolested dominion over the stolen property and not before. State v. McCarthy, 160 Or. 196, 83 P. 2d 801.

On the question of termination of a crime, the Pennsylvania Supreme Court, in Commonwealth v. Kelly, supra, has aptly said:

It is a legitimate assumption that one who. plans a robbery or burglary and by an overt act attempts to carry it out has also planned to escape from the scene of his crime. He must intend to make his felonious venture successful and it cannot be successful until he has made his escape. Even though, as here, the felon was frightened away before obtaining any plunder, his escape remains as part of his felonious design. His commission or attempted commission of the felony and his flight are but integrated parts of a single campaign in his war against society. The same malice that motivated his commission or attempted commission of the felony attended him in his flight. ***

Even if it could be said that the crimes of burglary and larceny were both complete in the sense that all three of the persons who participated could have been prosecuted and convicted of both crimes at the time Lisenby was arrested, the criminal enterprise was not terminated so that each conspirator was no longer responsible for the acts of his confederates. Commonwealth v. Dellelo, 349 Mass. 525, 209 N.E. 2d 303 (1965); State v. Turco, 99 N.J. Law 96, 122 A. 844 (1923). It has been held that a shooting done two minutes after a robbery, which was apparently done for the purpose of preventing detection, was part of a continuous assault lasting from the robbery to the shooting. State v. Williams, 28 Nev. 395, 82 Pac. 353 (1905). There must be an appreciable interval between the termination of the crime and the shooting and it must show a detachment from criminal enterprise. Commonwealth v. Dellelo, supra. See also, Commonwealth v. Kelly, supra. Whether the crime or attempted crime has been completely terminated is usually a question of fact for the jury to be viewed objectively, and its end is marked by what is done, rather than what is thought. Commonwealth v. Dellelo, supra; People v. Walsh, supra; Payne v. State, 81 Nev. 503, 406 P. 2d 922 (1965), cert. den. 391 U.S. 927, 88 S. Ct. 1826, 20 L. Ed. 2d 666; Carter v. U.S., supra; People v. Jackson, supra. The authorities from other jurisdictions on the question of termination of the crime are completely harmonious with our own decisions cited and quoted earlier.

In treating the problem of determining when the underlying felony has been terminated, in applying the felony-murder doctrine, the courts have generally spoken in terms of the res gestae of the crime. Payne v. State, supra; State v. Turco, supra. The res gestae of the crime begins when an indictable attempt is reached and ends where the chain of events between the attempted crime or completed felony is broken with that question usually being a fact determination for the jury. Payne v. State, supra. There is no distinction to be made between a case where the charge is assault with intent to kill and a felony-murder case insofar as questions pertaining to termination of the crime and the withdrawal of a participant are concerned. The only room for distinction, other than death of the victim, is the requirement of specific intent on the part of someone when the charge is assault with intent to kill.

There was ample evidence that the shooting by appellant’s accomplices was an integral part, the res gestae and a continuation of the crime of burglary and larceny.

A principal in the crime is responsible for all the natural or probable consequences that flow from the common purpose. Johnson v. State, 9 Md. App. 37, 262 A. 2d 325. See also, Turnage v. State, 182 Ark. 74, 30 S.W. 2d 865; Johnson v. State, 252 Ark. 1113, 482 S.W. 2d 60; Bosnick v. State, 248 Ark. 846, 454 S.W. 2d 311. Our own cases clearly indicate that an accomplice is criminally responsible for acts of his confederate in the execution of the crime which follow directly and immediately in the execution of the common design as one of its natural and probable consequences.

Co-conspirators in a dangerous criminal enterprise, such as larceny, should expect that in the event they are detected in the theft, violence endangering life or limb may ensue and, in contemplation of law, whatever is done by one, is done by all and all are equally responsible. Hamilton v. People, 113 Ill. 34 (1885). One who enters into such a design must be presumed to have understood the consequences which might reasonably be expected to flow from carrying it into effect and to have assented to the doing of whatever would reasonably or probably be necessary to the accomplishment of the objects of the conspiracy. McMahon v. People, 189 Ill. 222, 59 N.E. 584 (1901). It is not essential to the criminal liability of one who confederates or combines with others for the acts of all those who participate with him in the execution of the unlawful design that the acts be a part of the original plan, if the act on which liability is asserted is one of the probable consequences of the illegal purpose in which they did join. Commonwealth v. Dellelo, 349 Mass. 525, 209 N.E. 2d 303 (1965). Certainly the jury was justified in believing that what did happen was a natural and probable consequence of the burglary and larceny.

The question whether one of the participants in a crime has withdrawn from the criminal enterprise so that he is no longer responsible for the acts of other participants is usually a question of fact. See Commonwealth v. Dellelo, supra. There can be no effective withdrawal by one of multiple participants in a crime unless it is shown, not only that he determined that he would go no further with the criminal enterprise, but that he also communicated that decision to his confederates in sufficient time that they, too., might abandon the undertaking. Commonwealth v. Dellelo, supra; Commonwealth v. Green, 302 Mass. 547, 20 N.E. 2d 417 (1930). We have held that a conspirator cannot withdraw from the crime planned by a mere mental process of which one perpetrating the crime is unaware, but that he must communicate his withdrawal to the perpetrator. Karnes v. State, 159 Ark. 240, 252 S.W. 1. There is no evidence that Lisenby either withdrew from the criminal enterprise or that he communicated or attempted to communicate, any withdrawal or attempt to withdraw from the crime.

The mere fact that a participant in a crime has been arrested does not relieve him of responsibility for the acts of others associated with him in the criminal enterprise. See People v. Walsh, 262 N.Y. 140, 186 N.E. 422 (1933). Such an act is far from being voluntary. In a case involving a robbery and a kidnapping for the purpose of robbery, the conviction of one of the participants of assault with intent to commit murder was sustained, even though he fired no shots at the police officer assaulted, and was lying on the ground during the firing and remained there until he was handcuffed. People v. Beaumaster, 17 Cal. App. 3rd 996, 95 Cal. Rptr. 360 (1971). The court said:

*** Beaumaster claims that he withdrew from any conspiracy by submitting to a search and by his general cooperation with the police when stopped. A defendant ’s failure to continue previously active participation in a conspiracy is not enough to constitute withdrawal; there must be an affirmative and bona fide rejection or repudiation of the conspiracy communicated to the co-conspirator. *** A failure to complete a crime because of threatened arrest or the appearance of the police is not such a free and voluntary act as to constitute an abandonment. *** Each member of the conspiracy is liable as such for the acts of any of the others in carrying out the common purpose, i.e., all acts within the reasonable and probable consequences of the common unlawful design. Liability extends to acts unintended or even actually forbidden by a co-conspirator. *** Defendant did not communicate any withdrawal to his partner in crime. He was apprehended by the police, and his “abandonment” (if it can be so classed) was not voluntary. He, in fact, handed the gun to Chapman, and the probable consequences of this act are chargeable to Beaumaster. We cannot find that there was insufficient evidence to sustain Beaumaster’s conviction of assault with intent to commit murder (omitting citations only).

The fact that an accomplice actually fired the shot does not make the evidence insufficient to support an assault with intent to kill conviction of an accused who participated in the underlying crime. Johnson v. State, 9 Md. App. 37, 262 A. 2d 325 (1970); People v. Anthony, supra; McMahon v. People, supra. See also, Hamilton v. People, supra.

Upon the rationale of rules governing accomplice liability, a participant may be found guilty of an assault with intent to kill when his armed accomplice seeks to take the life of a victim of the crime or an officer when the crime is discovered or in an attempt to escape, even though the assault was not a part of the original plan and there is no evidence that the participant charged had the intent to kill the officer or victim. McMahon v. People, supra.

It seems to me that the majority has erroneously concluded that the original crimes of burglary and grand larceny had come to an end. Otherwise, they could not distinguish Bosnick v. State, 248 Ark. 846, 454 S.W. 2d 311. This might be done by a jury, but it cannot be sustained as a matter of law. I daresay not one of my brethren of the majority would hesitate to say the evidence was sufficient if Lisenby had been arrested with the loot in the “pro” shop, his companion had taken flight and the shooting had commenced immediately. Yet, there really is no difference in that situation and this.

Cases cited in the majority opinion afford no basis for distinction. Neither accomplice liability nor res gestae arose in Jones v. State, 89 Ark. 213, 116 S.W. 230. In Warren v. Commonwealth, 333 S.W. 2d 766 (Ky., 1960), the accused actively took steps to protect the victim. In Slim & Shorty v. State, 123 Ark. 583, 186 S.W. 308, the assault was committed in resisting an arrest for crimes committed at a different time and place and the evidence showed that the arresting officers had not sufficiently identified themselves before presenting their weapons, making an issue as to self-defense. State v. Walters, 105 Or. 662, 209 P. 349 (1922) falls into the same category. A homicide or assault in resisting arrest for crimes committed at other times and places is hardly the natural and probable consequence of those crimes.

I cannot agree with the Chief Justice that the judgment should be reversed because of the court’s instruction No. 5.

Appellant admits that the first paragraph of the instruction given is correct. He then argues that the words “their victim” in the first sentence of the second paragraph constituted a prohibited comment on the evidence. If this was so, it could easily have been corrected if the court’s attention had been called to the matter. The question cannot be considered for the first time on appeal. Appellant also argues here that the words, “then each of the defendants, being present, aiding and abetting the acts and conduct aforesaid, would be guilty of an unlawful assault” constituted a comment on the evidence. I simply do not see how this can be so considered. Appellant theorizes that because Norton was a principal, not an accessory, and the court told the jury by this language that Lisenby was an accessory, it was a comment on the evidence. This the instruction does not do and it is difficult for me to see how it can possibly be so read. Nowhere did the court tell the jury that Lisenby was present, aiding and abetting the acts and conduct of Norton. Here again, this objection is made for the first time on appeal. No party was in anywise prevented from offering any objection he wanted to make to any instruction. The trial judge specifically afforded an opportunity to the parties to make objections to the instructions.

The only other argument made here goes to an objection that was made, i.e., that Lisenby personally must have had the specific intent to kill at the time the assault was made. In my view, this is a fallacious argument as set out in the first part of this opinion and the instruction was not erroneous in that respect. The only remaining objection made in the trial court, aside from a general objection which we do not consider, was to the omission of a requirement that the jury find a specific intent to kill and to the denial of a verbal request that the jury be instructed,

.....that when two persons are proceeding according to a common plan, that if they detour or terminate, if they detour from their original plan and a specific intent crime is committed by one of the other parties, the second party must have some knowledge of that intent or knowledge that the other defendant is capable, has the capacity to develop that intent.

The ground upon which the Chief Justice bases his finding of error was not argued by the appellant on appeal. Objections not argued on appeal are waived. Roach v. State, 255 Ark. 773, 503 S.W. 2d 467. See In re Briefing of Criminal Cases, 234 Ark. 846, 354 S.W. 2d 740.

I should note that the court’s instructions did include the following:

*** Before the defendants can be convicted of assault with intent to kill, you must find that the defendants committed a willful assault with malice aforethought upon another with the specific intent to murder or kill that person. Malice and intent to kill may be inferred from acts and circumstances of the assault such as the use of a deadly weapon in a manner indicating an intention to kill or an act of violence which ordinarily would be calculated to produce death. You may properly consider the character of the weapon employed, the way it was used, the manner of the assault, the violence attendant thereon, and all other facts and circumstances tending to reveal the state of mind of the defendants.
In considering these instructions and in deliberating and voting on your findings, you will bear in mind that these defendants are charged here as individuals and you must determine the guilt or innocence of each separately. Accordingly, you must make separate findings as to each defendant.
In this connection, you are also charged that it is not necessary that you reach the same verdict for each defendant. You may find one or more innocent while at the same time finding the other guilty, your verdict being controlled only by the evidence and these instructions.

Thus, even assuming that appellant’s request is a correct statement of law, the jury, in the light of the instructions given was not totally deprived of guidance on the fact issues presented. In any event, this was not such an error as would justify our treating the case, on appellate review, as we do those cases wherein the death penalty or life imprisonment is the punishment imposed. In order to reverse this case for the failure of the circuit judge to instruct the jury as appellant requested, we would have to do so.

I would add that the fact that appellant’s requested instruction was not made in writing is of no significance whatever. The request was made and denied. There was still a waiver here.

I recognize that other points for reversal have been asserted but time and space limitations make it inadvisable that I treat them. Suffice it to say that I find no reversible error and would affirm the judgment.

      Subsequently, Barney Norton was convicted of assault with intent to kill, and his conviction affirmed by this Court on September 20, 1976. See Norton v. State, 260 Ark. 412.

      The sort of liability the state asserts against Lisenby, i.e., responsibility as an accomplice for the acts of another participant in a criminal design, has been referred to by some writers as “accomplice liability.”


source: Caselaw Access Project

author: Conley Byrd, Justice.

license: Public Domain

text:
    G. L. GLOVER et al v. Maxine RUSSELL et al
    76-312
    542 S.W. 2d 751
    Opinion delivered November 8, 1976 (In Banc)

      Lee A. Munson, Pros. Atty., 6th Judicial Circuit, by: William H. Trice HI, for appellants.

      John T. Harmon, for appellees and cross-appellants.
   Conley Byrd, Justice.

This election litigation arises as a result of a local option petition filed with the Pulaski County Clerk on September 8, 1976, for a wet or dry election in Precinct 18QA at the general election to be held on November 2, 1976. The Special Chancellor invalidated the petitions because they were not filed more than 60 days before the election. Appellants G. L. Glover, Sharon Cissell and Dr. Joel Anderson, as members of the Board of Election Commissioners of Pulaski County and Charles F. Jackson as Clerk of Pulaski County appeal contending that there is no mandatory filing deadline for local option petitions filed pursuant to Ark. Stat. Ann. § 48-801. Appellees Maxine Russell, Russell’s Liquor, Inc., M. C. Garrison and N. G. Mitchell cross-appeal contending that the Special Chancellor erred in holding that Precinct 180A was a valid, legal and established precinct of Pulaski County.

Both the appellants and appellees recognize that a local option election is not an initiative petition under the initiative and referendum provisions of Amendment No. 7 to the Arkansas Constitution. Yet both the appellants and appellees rely upon dictum from our decision in Armstrong v. Sturch, 235 Ark. 571, 361 S.W. 2d 77 (1962), to support their respective positions on the direct appeal issue. The sole issue involved in Armstrong v. Sturch, supra, was whether local option petitions Filed on July 23, 1962, prior to the general election on November 6, 1962, had been Filed too early. In construing Acts 1955, No. 15, we held that the petitions had been filed within the time prescribed by law. Here, however, the issue on the direct appeal is whether the petitions filed on September 8, 1976, were filed too late for the general election to be held 55 days later on November 2, 1976.

To understand how this problem arises, we must first consider Init. Meas. 1942, No. 1, § 1, Acts 1943 [Ark. Stat. Ann. § 48-801 (Repl. 1964)], which permitted 15% of the qualified voters to petition the county court for a wet or dry election. That act required the county court to hold a public hearing within 10 days to determine the sufficiency of the petitions. That provision directed the county court to order a special election not earlier than 20 days nor later than 30 days following the public hearing. Provision was also made for the time of taking an appeal from the county court to the circuit court, Ark. Stat. Ann. § 48-804.

After some experience with the provision for special local option elections, the General Assembly by a two-thirds vote adopted Acts 1955, No. 15 [Ark. Stat. Ann. §§ 48-824 and 48-825 (Repl. 1964)]. Section 1, thereof, required local option elections to be held only on the regular biennial November general election days. Section 2 of the Acts 1955, No. 15 [Ark. Stat. Ann. § 48-825] provides:

“Every petition for a local option election shall be prepared in accordance with Initiated Act No. 1 of 1942, and it shall be filed, and the. subsequent proceedings thereupon shall be had and conducted, in the manner provided for county initiative measures by Initiative and Referendum Amendment No. 7 to the Constitution of Arkansas and enabling acts pertaining thereto.” [Emphasis ours].

The time table for the filing and processing of petitions on county initiative measures is controlled by Amendment No. 7, to the Constitution of Arkansas and the enabling legislation pertaining thereto, Acts 1935, No. 4 [Ark. Stat. Ann. §§ 2-301 — 2-314 (Repl. 1976)]. Amendment No. 7 provides that “ ... In municipalities and counties the time for filing an initiative petition shall not be fixed at less than sixty days . . . before the election at which it is to be voted upon.” After the filing of the petitions Ark. Stat. Ann. § 2-303 gives the county clerk 10 days to certify the sufficiency or insufficiency of the petitions. If the clerk certifies the petitions insufficient, the petitioners pursuant to Ark. Stat. Ann. § 2-309 are given 10 days to obtain additional signatures or to submit proof to the clerk on rejected signatures and the clerk thereafter has another 5 days to certify as to the sufficiency or insufficiency of the petitions. Ark. Stat. Ann. § 2-310 thereafter gives to any taxpayer 15 days to petition the chancery court for review of the clerk’s certification. Ark. Stat. Ann. § 2-311 then requires the chancery court to hold a hearing within 10 days. When viewed from the perspective of handling the requirements for certifying and contesting of petitions filed pursuant to the Enabling Act for initiative measures, one can readily understand that the process is expected to take as much as 50 days.

If we should accept the appellants’ position that Ark. Stat. Ann. § 48-825 does not fix a deadline for local options, then of course there is no reason why petitions filed only 30 days before the election would not also be filed within the time allowed by law, yet there would not be sufficient time for the county clerk after making his certification to give his notice of publication for two consecutive weeks as required by Ark. Stat. Ann. § 2-307, not to say anything about the rights of aggrieved taxpayers to review the clerk’s findings. Of course, if the clerk should certify the petitions insufficient, then under the appellants’ contention the chancery court would not be required to act until the election would be over. We do not believe the General Assembly intended any such absurd procedural results. Rather we interpret Ark. Stat. Ann. § 48-825, supra, in its grammatical sense as providing that every petition for a local option election “ . .. shall be filed ... in the manner provided for county initiative measures . . . ” — i.e. at least 60 days before the general election. It follows that the Special Chancellor properly invalidated the petitions here filed 55 days before the general election.

With reference to the validity of the establishment of Precinct 180A we must consult Acts 1969, No. 465, Art. 6, § 1 [Ark. Stat. Ann. § 3-601 (Repl. 1976)], which after empowering the County Election Commissioners to alter and establish election precincts, provides:

“The action of said commissioners ... in altering the boundaries of any precinct, or in establishing any new one, shall be entered in the record to be kept by them, and a copy of said order shall set out intelligently and accurately the boundaries of said precincts as so altered or established, shall be filed with the Clerk of the County Court who shall record the same at full length on the record book on which the minutes of the proceedings of the County Court are recorded. ...”

The only record for the establishment of Precinct 180A is shown by the minutes of the meeting of the Pulaski County Election Commission under date of October 8, 1974. Those minutes which were not filed for record with the county court until just immediately before the trial of this case provide:

“Commission Attorney Tom Tanner read the court order from Judge Warren Wood ordering the placing of both the Sherwood Annexation and North Little Rock Annexation proposals on the November 5, 1974 General Election Ballot and ordering County Clerk Charles Jackson to notify the affected voters. There were to be no precinct boundary changes, but to set up provisions to allow the proper voters to vote on the questions. A copy of the court order attached.
Chairman Mears made the motion to set up the precincts in question; draw a hypothetical and geographical line to accommodate the Sherwood Annexation Proposal. One part of the line will remain its presently designated number, the other part will have the designation ‘A’ added. Those voters in Precincts 180A, 204A, 205A and 215A are to be notified by the County Clerk that the designation is for the November 5, 1974 Election only, Those areas designated ‘A’ are the parts of Hill Township proposal to be annexed to Sherwood. ”

The circuit court order signed by Judge Warren Wood and attached to the minutes of the County Election Commission does not contain a description.

Obviously the foregoing minutes of the Board of Election Commissioners do not intelligently and accurately set out the boundaries of Precinct 180A in the manner required by Ark. Stat. Ann. § 3-601 (Repl. 1976). Furthermore, the Precinct 180A by the minutes of the Board of Election Commissioners existed only for the 1974 election. Consequently, it follows that the Special Chancellor erred in holding that Precinct 180A was a valid, legal and established precinct of Pulaski County.

Affirmed on direct-appeal and reversed on cross-appeal.


author: Frank Holt, Justice.

text:
    Willard JOHNSON and Judith ROSENKRANTZ v. Robert MUNGER
    76-321
    542 S.W. 2d 753
    Opinion delivered November 8, 1976 (In Banc)

      Kenneth L. Schorr, for appellants.

      Rose, Nash, Williamson, Carroll, Clay & Giroir, for appellee.
   Frank Holt, Justice.

The only issue on appeal is whether there was sufficient compliance with the notice requirement of § 19.2 of the Little Rock City Code to allow a proposed initiated measure, Lifeline Electric Rates Ordinance, to be placed on the November 2, 1976, ballot. The chancellor held there was a substantial compliance with the publication requirements. However, the court felt constrained to hold the publication was insufficient because, when enforcement of election laws is sought befpre the election, a strict compliance is mandatory. Consequently, the measure should be removed from the ballot. Appellants contend for reversal that a substantial compliance is sufficient.

It is true that in some election contests we have held all provisions of the election laws are mandatory if enforcement is sought before election in a direct proceeding for that purpose and, generally, after election all should be held directory only in support of the result. McKenzie v. City of Dewitt, 196 Ark. 1115, 121 S.W. 2d 71 (1938); Phillips v. Rothrock, 194 Ark. 945, 110 S.W. 2d 26 (1937); Cowling v. City of Foreman, 238 Ark. 677, 384 S.W. 2d 251 (1964). However, strict compliance of the notice of publication has never been required where to do so would place it in the power of a ministerial officer to prevent the holding of a legal election. Hildreth v. Taylor, 117 Ark. 465, 175 S.W. 40 (1915); and Wheat v. Smith, 50 Ark. 266, 7 S.W. 161 (1887).

§ 19.2 supra, provides, in pertinent part, that after the city clerk determines the sufficiency of any initiative petition filed with that official “[t]hen the city clerk shall report his final finding to the board of directors, and if it be ascertained that such petition is signed by the requisite number of electors, said directors shall direct the city clerk to publish for one time, not less than thirty (30) days prior to the municipal election, in some newspaper having a general circulation in the municipality the full text of the proposed measure to be submitted to a vote of the people. ...”

Here, it appears undisputed that appellants filed their initiated petition with the city clerk on September 1, 1976, or 62 days before the November election. Amendment No. 7, Arkansas Constitution (1874), prescribes the time frame for filing the petition as being not more than 90 nor less than 60 days. The provisions of § 19.2, supra, are derivative of our Amendment No. 7, our Initiative and Referendum Amendment.

The proposed measure here was published by appellants themselves on October 2, 1976, which was within the required 30 day limitation. However, the publication by the city clerk, as required by § 19.2, supra, was October 8, 1976, or 25 days before the election. With respect to Amendment No. 7, we have long accorded a liberal interpretation to that Amendment. In Coleman v. Sherill, 189 Ark. 843, 75 S.W. 2d 248 (1934), the sufficiency of the ballot title of a local initiated act was questioned before the election. In ordering the proposed measure placed on the ballot, we said “ .. . Amendment No. 7 contemplates a liberal construction and, if substantially complied with, the proposition should be submitted to the vote of the electors.” In Reeves v. Smith, 190 Ark. 213, 78 S.W. 2d 72 (1935), an action challenging the sufficiency of the initiative petitions was instituted before the election. In upholding the sufficiency of the petitions, we said:

Amendment No. 7 necessarily must be construed with some degree of liberality, in order that its purposes may be well effectuated. Strict construction might defeat the very purposes, in some instances, of the amendment.

In Leigh v. Hall, 232 Ark. 558, 339 S.W. 2d 104 (1960), there was an action brought before the election alleging the publication of an initiative proposal was not within the time frame. The petitions were filed on various dates. We found the publication sufficient by selecting a filing date that would validate the measure. We said:

This court is definitely committed to the proposition that Amendment Seven should be liberally construed to effectuate its purpose.

There we again recognized:

Strict construction might defeat the very purposes, in some instances, of the amendment. **** ‘A realization that behavior and conduct in all affairs of life is never perfect, requires due allowances must be made for human frailties. Therefore only a substantial compliance is required.’

Accordingly, in the case at bar, we apply the rule of liberal construction since this is an initiated measure.

Here, on the record presented, it appears that the initiated petition was filed 62 days before the election date or within the permissible time frame. Thirty days before the election the appellants themselves published “the full text of the proposed measure” for the adoption or rejection by the voters on November 2, 1976. Five days later, or 25 days before the election, the city board of directors published exactly the same proposed ordinance to be voted upon November 2, 1976. We note, however, that it is conceded the city clerk was not at fault nor derelict in her duties in any manner. The substance of the two publications is substantially identical even to the extent that both indicate that the voters would have an opportunity to approve or reject the measure at the general election. We hold there was substantial compliance with the publication requirement.

The decree is reversed and the cause remanded for proceedings not inconsistent with this opinion.

Reversed and remanded.


text:
    Bobby HOLLAND v. STATE of Arkansas
    CR 76-95
    542 S.W. 2d 761
    Opinion delivered November 8, 1976 (In Banc)

      Wilson & Wilson, by: Ralph Wilson Jr., for appellant.

      Jim Guy Tucker, Atty. Gen., by: Gary Isbell, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

Appellant was convicted by a jury of the sale of marijuana in violation of Ark. Stat. Ann. § 82-2617 (Supp. 1975). This was the third trial of a marijuana sale by the same jury panel within three days. Each case involved different defendants. However, the same prosecuting witness, Richard Lott, an undercover officer, was the principal state witness in each case. Immediately before appellant’s trial, he moved for a continuance on the grounds that some of the jurors, because of the guilty verdicts in the two previous trials, had prejudged the credibility of the prosecuting witness. The motion was denied. Appellant then challenged for cause those persons who had served on the two preceding cases. These challenges were denied by the court whereupon appellant exhausted his peremptory challenges. Appellant contends on appeal that the trial court erred in its refusal to grant him a continuance and in not granting his challenges for cause.

The thrust of appellant’s argument is that since several jurors in his case had previously sat on juries which convicted defendants based on the testimony of Lott, the state’s main witness in all three cases, he was denied his constitutional rights of an impartial jury and due process of law because appellant’s jury had prejudged Lott’s credibility. Defendants in the two previous cases were assessed $2,000 fines and five year prison sentences. Here, the jury assessed appellant’s punishment at seven years’ imprisonment and a $1,000 fine.

Appellant first invokes Ark. Stat. Ann. § 43-1920 (Repl. 1964), which provides that a challenge for implied bias is proper when it is shown that a prospective juror has “served on a trial jury, which has tried another person for the offense charged in the indictment.” We have held adversely to appellant’s argument that this statute is applicable in the case at bar. Hall v. State, 125 Ark. 263, 188 S.W. 801 (1916); and Sorrentino v. State, 214 Ark. 115, 214 S.W. 2d 517 (1948). See also 47 Am. Jur. 2d Jury § 309. In Hall we held:

The mere fact that the jurors had served in another case in which the defendant and others had been indicted would not disqualify them as jurors in the present case; and in order to sustain the exception, it devolved upon the defendant to show affirmatively that the jurors had served in another case which disqualified them from serving in the present case. **** The presumption is, until the contrary appears, that they were not disqualified by prejudice or otherwise.

In Sorrentino we said:

The juror was not incompetent merely because he had served at the trial of some other defendant charged with an offense of the same character as that charged against appellant.

However, appellant vigorously argues the better view is that a defendant is denied an impartial jury whenever a jury, which convicts him, is selected from the same jury panel which has decided cases involving the same government witness or witnesses in a similar, although separate, transaction. As persuasive authority, appellant relies upon Priestly v. State, 19 Ariz. 371, 171 P. 137 (1918); State v. Hammon, 84 Kan. 137, 113 P. 418 (1911); Temple v. State, 15 Okl. Cr. 176, 175 P. 733 (1918); Scrivener v. State, 63 Okl. Cr. 418, 75 P. 2d 1154 (1938). See also 3 A.L.R. 1201 and 160 A.L.R. 732 and the dissenting view at p. 619 in Casias v. United States, 315 F. 2d 614 (10th Cir. 1963), cert. denied 374 U.S. 845.

However, our U.S. 8th Circuit Court of Appeals has addressed itself to this subject. In U.S. v. Williams, 484 F. 2d 176 (1973), it was held that the two defendants there were not denied an impartial jury merely because it was the seventh consecutive jury that had been selected from the same jury panel involving the same government witnesses. There, as here, the court conducted an extensive voir dire of the jury and no juror indicated that he could not serve as an unbiased and impartial juror. Further, here appellant’s counsel addressed the jury on the subject of impartiality after exhausting his challenges and no juror indicated actual or implied bias. In Williams the court said:

At the most the challenge must rest entirely on a per se theory of implied bias. This Court rejected a like argument in Johnson v. United States, 484 F. 2d 309 (8th Cir. 1973), and prior federal cases are uniformly to the same effect. **** As this Court stated in Johnson, supra, we do not endorse the procedure followed here as being preferred or the most desirable. Still we cannot say that its use is reversible error in the absence of some showing of actual prejudice.

Here, as indicated, according to the record, neither the voir dire by the court nor the defense counsel’s query to the jury established any bias or prejudice on the part of any member of the jury. Furthermore, it is well established that our constitutional guarantee of an impartial jury is a judicial question which is addressed to the sound discretion of the trial court. Lane v. State, 168 Ark. 528, 270 S.W. 974 (1925); and Montaque v. State, 219 Ark. 385, 242 S.W. 2d 697 (1951). Also the refusal of a motion for a continuance is within the sound discretion of the trial court. Perez v. State, 236 Ark. 921, 370 S.W. 2d 613 (1963). In the case at bar appellant has not demonstrated a manifest abuse of the discretionary authority which is accorded the trial court. However, as aptly said in Williams, supra, “[A]s this Court stated in Johnson, supra, we do not endorse the procedure followed here as being preferred or the most desirable.” Consequently, we do not foreclose the possibility that an abuse of discretion could be shown in other cases.

Neither can we agree with appellant that the credibility of the government witness is a question of fact within the meaning of Ark. Stat. Ann. § 39-105 (Supp. 1975), which disqualifies a petit juror who has served in a previous case “involving any of the same questions of fact.” Here it was for the jury at each trial to determine Lott’s credibility in the separate transactions which involved different defendants. Therefore, his credibility was not the “same” question of fact in each case.

Affirmed.

Byrd, J., dissents.


author: ElsijaneT. Roy, Justice.

text:
    John BAKOS, Kenneth BAKOS and Ronald BAKOS, Heirs at Law of Mayme (May) Bakos GAFFNEY, Deceased v. William Howard KRYDER and Raymon LEDWIDGE, Co-executors of the Estate of Mayme (May) Bakos GAFFNEY, Deceased
    76-103
    543 S.W. 2d 216
    Opinion delivered November 8, 1976
    [Rehearing denied December 13, 1976.]

      Harry E. Cook Jr. and Ray S. Smith Jr., for appellants.

      Evans, Farrar, Patterson & Farrar, for appellees.
   ElsijaneT. Roy, Justice.

Mayme (May) Bakos Gaffney, a resident of Garland County, died testate on July 16, 1972. Her will, dated January 31, 1972, and an instrument purporting to be a holographic codicil were duly admitted to probate, and William Howard Kryder and Raymon Ledwidge, the designated co-executors, qualified and were duly appointed.

The will provided for numerous charitable dispositions and the establishment of a fund, known as the Bakos Fund, for the benefit of certain children in the Hot Springs Children’s Home. Appellants, the sole heirs at law of decedent, filed a petition for construction of the will alleging for various reasons the Bakos Fund and bequests were illegal and that consequently a large part of the estate must pass by intestacy to them. The probate court held the bequests involved were, valid and that the fund established by decedent constituted a charitable trust for the benefit of the intended recipients.

As to the bequests appellants contend there is no language in the will signifying that the testatrix intended that any portion of her estate should be paid to the named organizations. This contention is answered by a mere reading of pertinent parts of the will.

I. I hereby constitute Rev. Wm. Kyrder and Raymon Ledwidge to be co-executors of this my Last Will and Testament directing my said co-executors to pay all my just debts and funeral expenses, and the legacies hereinafter given, out of my estate [italics supplied].
II. Hot Springs Children’s Home:-5%
III. Good Shepherd’s Children’s Home, Hot Springs, Arkansas :-5%
IV. Hillcrest Children’s Home, Hot Springs, Arkansas:-5%
V. Little Rock Crippled Children’s Home, Little Rock, Arkansas :-5%
VI. Shriners Crippled Children’s Home:-5%
VII. Salvation Army, Hot Springs:-2%
VIII. Abilities Unlimited:-2%
IX. Heart Fund:-2%
X. Cancer Fund:-2%
XI. United Fund:-2%

As is evident the testatrix in Article I of the will directed that the “legacies hereinafter given” be paid out of the estate and then indicated the percentage each named organization was to receive.

The instruction to an executor to pay a legacy is indicative of a donative intent; the exact words “give and bequeath” are not necessary. See Hamel v. Springle, Adm’r, 237 Ark. 356, 372 S.W. 2d 822 (1963).

Furthermore, in construing a will we are mindful that:

. . . [A] will should be given that construction which accomplishes the purposes and objectives of the testator and, further, that consideration must be given to every part of the will in ascertaining the testator’s intentions. Walt v. Bevis, 242 Ark. 644, 414 S.W. 2d 863 (1967).

Carroll v. Robinson, Executor, 248 Ark. 904, 454 S.W. 2d 329 (1970). Thus there is no merit to this contention.

Appellants next contend the lower court erred in holding that the will created a valid charitable trust. Pertinent provisions of the will read as follows:

XII. I hereby establish a fund to be called “The Bakos Fund.” The co-executors of this Will are to pay each child, who departs from the Hot Springs Children’s Home, $100.00 upon such, departure when the child reaches the age of eighteen (18). This age of eighteen is to be flexible depending upon the recommendation of the manager of the children’s home and the agreement of my co-executors. The departing child must be of good character. If the departing child, in his struggle to improve himself and to find a proper place for himself in society, is in need of an additional $100.00, then the co-executors shall pay the $100.00 to the said child if, in their judgment, it would be a prudent step to take.
XIII. The last hereinabovementioned procedures shall be continued until all of the funds of my estate have been depleted or until the estate must be closed in accordance with the laws of Arkansas regarding the number of years that an estate is permitted to be kept open [italics supplied]. If it does become necessary to close the estate, while there are still funds therein, Rev. Wm. Kyrder and Raymon Ledwidge shall become co-trustees of my savings account at First Federal Savings and the disbursements to the children departing the Hot Springs Children’s Home shall be continued until the Bakos Fund, in the form of a savings account at First Federal Savings is depleted. * * *

Appellants argue as to these foregoing provisions that the class of recipients created is so indeterminable that none of the class members can be ascertained with the legal certainty necessary to create a valid trust. We cannot agree. The fact that the class is indefinite in the sense that it lacks specifically designated beneficiaries does not invalidate a charitable trust. As long ago as McDonald v. Shaw, 81 Ark. 235, 98 S.W. 952 (1906), this Court in speaking of charitable trusts, quoting from the case of Russell v. Allen, 107 U.S. 163, 2 S. Ct. 327, 27 L. Ed. 397 (1882), said:

. . . “They may, and indeed, must, be for the benefit of an indefinite number of persons; for, if all the beneficiaries are designated, the trust lacks the essential elements of indefiniteness, which is one characteristic of a legal charity.”

Continuing the Court quoted 2 Perry on Trusts, § 732, as follows:

“. . . Uncertainty as to the individual beneficiaries is characteristic of a charitable use.”

See also Restatement (Second) of Trusts, § 364 (1959) and 15 Am. Jur. 2d Charities, § 93 (1964). Here no uncertainty inheres in the class designated by the Fund. The discretion left to the appellees, co-trustees of the Fund, is confined to selecting qualified recipients from within a class certain, and we conclude that the class defined by the Fund does not fail for lack of specificity.

Appellants also contend, under this same argument, that the Fund lacks a charitable purpose, that there is no guarantee the children in the Home are all impoverished, and that it contravenes the rule against perpetuities. The record reflects most of the children are from homes that are impoverished and all are there because of unfortunate circumstances. Furthermore, as heretofore indicated, disbursements are left in part to the discretion of the co-trustees.

Restatement (Second) of Trusts, § 374 (1959), provides:

A trust for the promotion of purposes which are of a character sufficiently beneficial to the community to justify permitting property to be devoted forever to their accomplishment is charitable.

Continuing in this section we find:

A trust to assist young men or women to establish themselves in life is charitable; ....

Relief of poverty is also a charitable purpose. See McDonald v. Shaw, supra. The Bakos Fund was established to pay $100 and possibly another $100 to the departing 18 year old resident as he left the home and to aid “... in his struggle to improve himself and find a proper place for himself in society, . . . . ” This purpose is unquestionably beneficial to the community since society has a valid interest in the productive integration of its citizenry.

As to the rule against perpetuities, in Garrett v. Mendenhall, Executor, 209 Ark. 898, 192 S.W. 2d 972 (1946), the Court held that a devise to the trustees of a certain church is a devise creating a trust for charitable use for the benefit of an indefinite number of persons and does not fall within the rule against perpetuities. See also Bisco v. Thweatt, 74 Ark. 545, 86 S.W. 432 (1905).

The decedent’s will instructed appellees that the payments therefrom were to be distributed “until the funds of my estate have been depleted or until the estate must be closed in accordance with the laws of Arkansas regarding the number of years an estate may remain open. ” Appellants insist that since there is no law in Arkansas specifying the number of years an estate may remain open, a condition precedent to the trust is not met. Ark. Stat. Ann. § 62-2802 (Repl. 1971) requires the personal representative to close the estate as promptly as practicable. Thus the provision of the will is in complete harmony with the statute. Restatement (Second) of Trusts, § 365 (1959) states:

A charitable trust is not invalid although by the terms of the trust it is to continue for an indefinite or an unlimited period.

Accordingly, we find the trial court was correct in holding that the will creates a valid trust.

The court then found the trust was funded by the residuary estate of the testatrix after deduction of debts, expenses and the charitable bequests totaling 35% of the estate. Appellants argue this conclusion is erroneous and that the residuary estate must pass to them as heirs since no funding was provided by the will for the Bakos Fund.

In Rufty v. Brantly, 204 Ark. 32, 161 S.W. 2d 11 (1942), we noted a strong presumption against partial intestacy unless the language of the instrument compels a different result. See also Bradshaw v. Pennington, Administrator, 225 Ark. 410, 283 S.W. 2d 351 (1955).

Appellants contend that if the alleged charitable trust is found valid the funding must be restricted to the savings account in the First Federal Savings. We view the reference to a savings account at First Federal Savings as not being so restrictive. The intention of the testatrix is evidenced by the statement in Article XIII that the trust shall “continue until all of the funds of my estate have been depleted. ” Also, the testatrix directed that if funds remained in the estate when it was closed, the Bakos Fund was to be continued “in the form of a savings account” with appellees to be co-trustees to handle disbursements therefrom. Thus it is evident the intention of the testatrix was that the First Federal Savings account was to serve as a depository for the residue of the estate pending distribution to the youth at the Children’s Home.

As further indication of the testatrix’s intent that residuary sums go to the Bakos Fund and not to any of her heirs we note the following provisions of the will:

XVIII. I bequeath to my brother John and his daughter, Ellen Poat, share and share alike, as joint tenants with right of survivorship and not as tenants in common, all of my share in my sister’s home provided the home has not been sold and the proceeds divided prior to my demise [italics supplied].
XIX. I bequeath to each of my relatives, with my thanks, the sum of five and no/100 ($5.00) Dollars, when as and if they make claims [italics supplied].
XX. My sincerest thanks and God’s blessings to you two gentlemen whom I have named as my co-executors of this Will and my co-trustees of my savings account at First Federal Savings which, after my death, and after the closing of my estate, is to be used for the benefit of the children departing from the Hot Springs Children’s Home [italics supplied]. You both have made my rough road here a little smoother and a little brighter and I know you both will try to make the road brighter for the aforementioned children who may be in need of a friend, as I was.

These provisions clearly reflect that the testatrix, contrary to appellants’ assertions, did not intend that any part of her estate should pass intestate, but meant for all funds except the specific legacies to become a part of the charitable trust, as determined by the trial court.

Affirmed.

We agree. Fogleman, Byrd and Holt, JJ.

      The codicil is not at issue herein.


author: Elsijane T. Roy, Justice.

text:
    Henry ZGLESZEWSKI v. Carol ZGLESZEWSKI and Peter T. HORNE
    76-120
    542 S.W. 2d 765
    Opinion delivered November 8, 1976

      Lawson E. Glover and David M. Glover, of Glover Law Office, for appellant.

      Legal Aid Bureau of Pulaski County, by: Robert H. Wood Jr. and Gilbert L. Glover, for appellees.
   Elsijane T. Roy, Justice.

Appellant Henry Zgleszewski and co-appellee Carol Zgleszewski married in 1971. Coappellee Peter Horne was formerly married to Carol Zgleszewski, the marriage having been terminated by divorce in Pennsylvania in 1970.-- At -that time she was awarded custody of the two children born during her marriage to Horne. Appellant filed a petition for adoption in July, 1975, requesting that he be allowed to adopt the issue of coappellee’s earlier marriage.

In the petition appellant alleged that under Ark. Stat. Ann. § 56-106 (Repl. 1971) appellee Horne should be found to have abandoned his children. Appellee Carol Zgleszewski consented to her present husband’s adoption of the children, but appellee Horne refused to give consent. Horne is presently imprisoned in the Pennsylvania State Prison as he was at the time of the filing of the adoption petition. The probate court held that Horne had not abandoned the children and consequently denied the adoption.

For reversal appellant contends that the decision of the trial court is against the preponderance of the evidence and that he is entitled to an order granting the adoption on grounds of abandonment. Appellant testified the children call him father and they engage in a number of recreational activities together. He further testified he wanted to adopt the children; he thought it was in their best interest for him to adopt them; he has a savings account; he has sufficient money to take care of them and meet their obligations and their expenses; he has done this since 1971 and can and will continue; he has ample life insurance; he and his wife have a child of their own; and he carries health and accident insurance on all three children where he works.

It is noted that the children had been living with appellant and had been supported by him for five years when he filed the petition for adoption. The children, he testified, go to church and both make straight A’s in school, and there have never been any disciplinary problems at home.

Ark. Stat. Ann. § 56-106 (Repl. 1971) provides for the non-consensual adoption of a child under certain specified circumstances. Section 56-106 (a) and (b) (I) upon which appellant relies reads:

Consent of parents or guardian. — (a) The adoption of a child shall not be permitted without the written consent verified by affidavit, of its parents or parent, if living, except as follows:
(b) The consent of a parent or parents may be dispensed with if the court, upon competent evidence, makes one of the following findings:
(I) The parent has abandoned the child for more than six [6] months next preceding the filing of the petition.

In any proceeding in which the custody of a child is involved the paramount consideration is the best interest of the child. Richards v. Nesbitt, 237 Ark. 888, 377 S.W. 2d 40 (1964); Cotten v. Hamblin, 234 Ark. 109, 350 S.W. 2d 612 (1961).

Carol Zgleszewski and Peter Horne were married in 1964. In 1967 Horne was imprisoned after having been found guilty on three charges of rape, and he admitted he would not be eligible for parole until January, 1978. His former wife testified she visited him regularly with the children until 1968 or 1969, but was forced to discontinue the visits after he became increasingly accusatory and abusive toward her. Mrs. Zgleszewski further stated that after appellant’s confinement because of the necessity of caring for the children she was unable to work and had to go on welfare. Her testimony reflected that although her former husband held various jobs in prison, he did not send any money to her or the children nor did he communicate with the children by cards, letters, telephone calls or in any way.

After her divorce from Horne in 1970, Mrs. Zgleszewski moved to another town some four or five miles distant from where she and her former husband had lived. She maintained a cordial relationship with Horne’s family, and the wedding reception for her marriage to appellant was held at the home of Horne’s brother. The only time Horne saw his children subsequent to 1969 was for about five minutes at his father’s funeral in December, 1973. In July, 1975, the Zgleszewskis moved to Arkansas and prior to this move notified Horne’s family, but did not notify Horne directly of the move.

In Horne’s interrogatories he stated he had communicated with his children until 1970, but not thereafter because he did not know their whereabouts. This reason lacks substantive basis since from 1970 until July, 1975, Mrs. Zgleszewski and her husband (appellant) lived only a short distance from her former home with appellee Horne. They had a friendly relationship with her former husband’s parents as well as his brother’s family, and the Horne family was in frequent contact with Peter Horne. It is not unreasonable to suppose that normal parental love would impel Horne to ask them about the whereabouts of his children.

Appellee Horne admitted having saved some $1400 but did not use any of this in trying to contact or help his children. Nor did he indicate any intention to do so even though at the time of the trial he knew where they were living.

Our cases require that in order to show abandonment the evidence must indicate the parent deserted, forsook entirely, “or relinquished all connection with, or concern in,” the child. Walthall v. Hime, 236 Ark. 689, 368 S.W. 2d 77 (1963). We are aware that imprisonment imposes an unusual impediment to a normal parental relationship. However, even when parenthood is disadvantaged by this unfortunate factor, one could still solicit visits from his children and contact them with cards, letters and small gifts if he did not have the means of support.

In re Adoption of McCray, Pa., 331 A. 2d 652 (1975), in which abandonment was the main issue the court, in granting the adoption, stated:

. . . [W]e have held that the parent has an affirmative duty to love, protect and support his child and to make an effort to maintain communication and association with that child. * * *
. . . [A] parent’s absence and/or failure to support due to incarceration is not conclusive on the issue of abandonment. Nevertheless, we are not willing to completely toll a parent’s responsibilities during his or her incarceration. Rather, we must inquire whether the parent has utilized those resources at his or her command while in prison in continuing a close relationship with the child.

The cumulative evidence here indicates appellee’s interest in the welfare of his children from 1967 to the date of trial had been minimal. Appellee’s willful criminal acts and the course of conduct followed thereafter indicate a conscious disregard of the children and an indifference to their welfare tantamount to voluntary abandonment. Accordingly we find the decree of the chancellor is against the preponderance of the evidence.

Reversed and remanded for action not inconsistent with this opinion.

We agree. Harris, C.J., and Byrd and Holt, JJ.


text:
    James PICKENS v. STATE of Arkansas
    CR 76-99
    542 S.W. 2d 764
    Opinion delivered November 8, 1976

      Bill E. Ross, Public Defender, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Jack Lassiter, Asst. Atty. Gen., for appellee.
   Elsijane T. Roy, Justice.

Appellant James Pickens was charged with the sale and delivery of a controlled substance, which charge arose as a result of his sale of two LSD tablets to Richard Lott, a police undercover agent. Appellant was found guilty and sentenced to 10 years’ imprisonment and fined $5,000.

On appeal, appellant first contends that the trial court erred in not dismissing jurors who sat on previous consecutive cases involving the sale of controlled substances. Richard Lott was the State’s principal witness against appellant in this case, and also was the primary witness in the earlier cases. However, we find no merit in this contention for the reasons set out in Holland v. State, 260 Ark. 617, 542 S.W. 2d 761 (1976), decided this same day. Also we note that in the instant case appellant’s attorney voir dired the jurors extensively and no prejudice or bias was revealed because of having served on the previous trials.

Appellant next asserts the trial court erred in failing to dismiss, for cause, Juror Elmer Cole during voir dire. In examining Cole the following facts were developed:

MR. ROSS: * * * Mr. Cole, do you have any friends or relatives that are employed in connection with the law enforcement agencies?
JUROR COLE: I have a nephew who is a police lieutenant in L.A.
MR. ROSS: Los Angeles?
JUROR COLE: Yes.
MR. ROSS: Is there anything about that relationship that would cause you to have any preconceived notions about the guilt or innocence of an accused?
JUROR COLE: I am afraid so after hearing him talk about it. He is an undercover man in narcotics.
MR. ROSS: Your Honor, we would submit Mr. Cole.
COURT: What was the basis of that?
MR. ROSS: He has formed an opinion, Your Honor, based upon the fact that he has a nephew who is an undercover law enforcement agent in Los Angeles and his conversations with him.
* * *
COURT: * * * Have you talked with your nephew concerning his work in the Los Angeles area?
JUROR COLE: Not any more than his just telling me his experiences with these dope heads.
COURT: Based upon your knowledge which you have gathered through your conversation with your nephew in reference to his work, do you think that you do have an opinion concerning this type of case which would influence your verdict in the matter?
JUROR COLE: I don’t think so.
COURT: Would you be inclined or tend to give more weight or credibility to a drug undercover agent than you would to any other witness merely because of the fact that he was a drug undercover officer?
JUROR COLE: I don’t think that I would. (Italics supplied.)

When asked several more questions Cole’s responses were clearly equivocal, i.e., “I think so” and “I don’t think so.”

In all criminal prosecutions both the Sixth Amendment to the United States Constitution and the Arkansas Constitution, Article 2, § 10 guarantee the accused trial by an impartial jury. In spite of the rehabilitative efforts of the trial court, we cannot say that Cole’s apparent prejudice was satisfactorily expunged. Ark. Stat. Ann. § 39-105(c) and (e) (Supp. 1975) excludes from petit jury service any person who has “ . . . formed or expressed an opinion concerning the matter in controversy which may influence his judgment;” or who is “. . . biased or prejudiced for or against any party to the cause or is prevented by any relationship or circumstance from acting impartially;. . . . ’’ Here, even after court interrogation, residual prejudice remained sufficient to invoke the exclusionary provisions of § 39-105. See also, Glover v. State, 248 Ark. 1260, 455 S.W. 2d 670 (1970), where standards controlling juror qualification are outlined in detail. In light of Juror Cole’s presumptive bias and the cited authorities it was error for the trial court not to exclude Cole for cause.

It is not necessary to discuss appellant’s remaining contentions since one is not likely to arise on retrial, and the evidence presented upon the other issue on retrial may differ somewhat from that presented in this case.

Reversed and remanded.

We agree. Harris, C.J., and Byrd and Holt, JJ.


author: George Rose Smith, Justice.

text:
    CITY of HOT SPRINGS et al v. McGEORGE CONTRACTING COMPANY, Inc. et al
    76-317
    543 S.W. 2d 475
    Opinion delivered November 15, 1976 (In Banc)

      Eudox Patterson, for appellants.

      E. Harley Cox, Jr., of Coleman, Gantt, Ramsey & Cox, and Bill S. Clark, of Smith, Williams, Friday, Eldredge & Clark, for appellees.
   George Rose Smith, Justice.

This is an attempt by the city of Hot Springs and its airport commission to appeal from an order of dismissal entered on June 14, 1976. Our clerk refused to file the record, because the notice of appeal was not filed until July 15 — the 31st day after the entry of the order. The appellants argue that the belated filing was excusable, because the order was signed and filed without notice to counsel, and the clerk of the trial court failed to mail a copy to the appellants’ attorney, as is the custom of that office.

We cannot grant the relief sought, because the timely filing of a notice of appeal is essential to our jurisdiction. Ward v. Universal C.I.T. Credit Corp., 228 Ark. 275, 307 S.W. 2d 73 (1957); General Box Co. v. Scurlock, 223 Ark. 967, 271 S.W. 2d 40 (1954). We must therefore deny the appellants’ motion, without prejudice, however, to an application to the trial court for relief. Cf. Karam v. Halk, 260 Ark. 36, 537 S.W. 2d 797 (1976).