author: J. Fred Jones, Justice.

text:
    Jimmy Don COOK v. STATE of Arkansas
    5466
    451 S. W. 2d 473
    Opinion delivered March 23, 1970

      Hardin, Barton, Jesson ir Dawson, for appellant.

      Joe Purcell, Attorney General; Don Langston and Mike Wilson, Asst. Attys. Gen., for appellee.
   J. Fred Jones, Justice.

Jimmy Don Cook was tried before a jury and convicted of voluntary manslaughter in the Sebastian County Circuit Court. He was sentenced to serve not less than two years nor more than six years in the Arkansas Penitentiary. He has appealed to this court and has designated the points he relies on for reversal, as follows:

“The evidence is circumstantial in nature and wholly insufficient to support the jury verdict.
The court erred in refusing to instruct the jury on involuntary manslaughter.”

We do not agree with the appellant on either of the points he has designated.

The facts in this case are derived from circumstantial evidence surrounding a typical barroom brawl, where no one sees anyone do anything unlawful, but where a man lies dead in his own blood, from a stab wound in the heart, when the shouting has died down and the pushing has stopped. Such was the situation at the Brass Rail Bar in Fort Smith at midnight on April 25, 1969, when Donald Mizell died as a result of a stab wound in the heart. Donald’s father owned the Brass Rail.

On the night in question Nita Pard Lanier was the only bartender, or waitress, at the Brass Rail. She testified that there was a good crowd of customers in the place, and that for one person, it was about all she could handle. Mrs. Lanier testified that she was acquainted with the appellant and that on the night in question she saw him alight from a taxicab in front of the Brass Rail and start into the place. She says that she met the appellant at the door, and on this point she testified as follows:

“. . . I told him, ‘Jimmy, you can’t come in here, you know you’re barred,’ and he said, ‘Yes, Nita, I know it, but I was just looking for someone.’ ”

Mrs. Lanier testified that this conversation occurred approximately four seats inside the building. She says that she then went to the last booth in the back of the building and delivered two cokes and two beers and when she returned to the front of the building, the appellant was standing with his back to the wall and a blonde headed girl was standing in front of him with her arms outstretched in the attitude of preventing the appellant from leaving. She says that the girl called twice to Leon Greenhall, “Leon, go call daddy.” Mrs. Lanier then testified:

“I told her, I says, ‘There- isn’t any use in anyone calling anyone, Jimmy’s leaving.’ So at that time Leon turned and walked away and the girl stepped aside and Jimmy walked to the front door with me and then after he got outside well Jimmy turned around and called me a dirty name and told me to come outside and he would show me what he would do to me.”

This witness testified that as the appellant was proceeding from the front door to the sidewalk, and while she was still standing in the front door, several people shoved past her from inside the building, and more or less carried her along with them, in following the appellant outside to the sidewalk. She says that she saw a man, whom she did not know, knock the appellant to the sidewalk. She testified that she rushed back inside the building and as she entered the door, she looked back and saw the appellant propped up on one elbow in the process of arising from the sidewalk, and that he had a dark or black object, four or five inches long, in his right hand. Mrs. Lanier says that she then called the police by phone and that while she was calling the police, one of the customers “hollered and said, ‘Nita, call an ambulance, this man’s bleeding to death.’ She says that after using the phone she went around the bar to where Donald Mizell was. At this point she testified as follows:

“Q. And where was he after you first saw him after he had been stabbed?
A. After the stabbing, he was between two stools middle ways of the bar.
Q. Did you see him come back into the bar?
A. No, sir.
Q. Do you know what relationship there is, if any, to Mr. Mizell to the owners and operators of the bar?
A. Yes, sir.
Q. Will you please tell the jury what that relationship is?
A. Don Mizell is Harley Mizell’s son.
Q. The deceased is the son of the operator and owner of the bar?
A. Yes, sir.”

Mrs. Lanier testified that she was not well acquainted with the deceased and does not recall seeing him come into the bar.

“Q. How long had the Mizell boy been in the place on that evening? Do you have any judgment about it?
A. I’d say approximately maybe ten minutes, I hadn’t waited on him, I didn’t even see him come in and he came to the stool and I served him.
Q. Now that was up at the bar?
A. Yes, sir.
Q. You say you did not see him come in?
A. No, sir.”

Officer Joe Thomas testified that he is a patrolman for the city of Fort Smith and was so employed on the night in question. He says that around 12:00 a.m. on the night in question, while on normal patrol past the Brass Rail, he noticed several people in front of the tavern and about that time he saw someone get knocked, or shoved, down to the sidewalk. He says that this individual got up and seemed to lunge at the crowd of seven or eight people. He says that he called the police station and requested that additional officers be dispatched to the scene. He says that as he parked his own vehicle, and started toward the crowd on the sidewalk, the crowd quickly dissolved and everyone started back inside the Brass Rail. He says that while he was questioning a couple of boys who were passing in front of the Brass Rail, a lady who worked in the place, came out and told him that a boy inside had been stabbed and asked him to send an ambulance. This witness testified that when his captain arrived they called an ambulance. As to the location and condition of Mizell, this witness testified:

“Q. Where was he when you first saw him?
A. He was on the inside of the Brass Rail laying hunkered down between two stools, leaning up against the bar.
Q. Were you there at the time he was removed?
A. Yes, sir.
Q. What was his condition at the time he was removed?
A. He was unconscious at the time that we put him in the ambulance, I don’t believe that he was moving any whatsoever when we placed him on the stretcher and put him in the ambulance.
Q. Did you have occasion to examine the spot where he was after he had been removed?
A. Yes, sir.”

Officer Roy Piercy testified that he was on routine police patrol for the city of Fort Smith on the night in question and received a call from one of the other units that there had been a disturbance at the Brass Rail. He says that he went to the Brass Rail where he found a rather large group of people on the sidewalk and it appeared that there had been a fight or something. He says that he went inside the building and there was a man, identified as Mr. Mizell, lying on the floor. He says that he stood by Mr. Mizell until the ambulance arrived and then went back to his regular patrol. He says that he was called a few minutes later and requested to go to the Edward’s Funeral Home to witness an autopsy on Mizell. Officer Piercy testified that after he witnessed the autopsy and returned to his patrol, about 2:00 a.m. he was patrolling west on North B Street when he noticed an individual across the street in the 600 block near a vacant service station. He says that he stopped the individual and upon questioning him learned that he was the appellant, Jimmy Don Cook. He says that the appellant had been drinking some and was rather belligerent. He says that when he “frisked” the appellant, he found a knife in his belt; that he took the knife from him and placed him under arrest for investigation of murder. This witness identified the appellant as the individual he arrested and testified that the appellant was carrying the knife under his belt with the blade down on the appellant’s lefthand side. He is not sure whether the knife was outside the appellant’s shirt or under the shirt.

Dr. Annette Landrum, a practicing pathologist in Fort Smith, testified that she performed an autopsy on the body of Mizell at approximately 1:20 a.m. on April 26 at the Edward’s Funeral Home. She testified that the autopsy revealed a stab wound which had entered the chest and which had penetrated the right ventricle of the heart, and that it was this penetrating stab wound of the heart that had caused the death. She testified that the stab wound penetrated through the cartilages of the 7th and 8th ribs anteriorly, that is, crossing through the cartilages and severing them arid then passing through the pericardial cavity and through the heart but not penetrating the back of the pericardial cavity or the sacs surrounding the heart. This witness testified that the length of the wound was approximately one to one and one-half inches end to end and the depth of the wound was approximately three and one-half inches. Dr. Landrum testified that from the size, shape and depth of the wound, and from the size and shape of the appellant’s knife placed in evidence, one could logically conclude that the wound could have been made with the appellant’s knife.

Dr. Rodney F. Carlton, associate state medical examiner and a specialist in forensic pathology, testified that he received a vial of blood labeled “Donald Mizell” and a western black-handled knife. He says that he analyzed some stains found on the knife blade and found that it was human blood, probably of group “A.” He says that he examined the vial of blood and found it to be blood group “O.” This witness testified as to the procedure he used in typing the blood and testified that he concluded that the stain found on the knife was probably group “A,” knowing full well that he could not exclude group “O” being present or the possibility that a contamination of the stain on the knife blade had occurred. Dr. Carlton testified that he labeled the blood on the knife as probable group “A”; that he is real sure group “A” blood was present on the knife, but that under the test that he ran, he was unable to exclude group “O” blood from being present on the knife.

Our past decisions are of little value in determining the sufficiency of circumstantial evidence to sustain a conviction by jury verdict, for the reason that each case of conviction must stand on the substantiality of its own evidence, and circumstantial evidence is no stronger than the circumstances from which the facts are sifted and the ties that bind the facts together.

Circumstantial evidence has long been recognized by law as sufficient to sustain a conviction. Walker v. State, 229 Ark. 685, 317 S. W. 2d 823; Osburne v. State, 181 Ark. 661, 27 S. W. 2d 783; Jefferson v. State, 196 Ark. 897, 120 S. W. 2d 327; Smith v. State, 227 Ark. 332, 299 S. W. 2d 52.

The law is also well settled that in testing the sufficiency of evidence on appeal to sustain a jury verdict of guilty in a criminal case, the evidence must be viewed in the light most favorable to the state. Scott v. State, 180 Ark. 408, 21 S. W. 2d 186; Campbell v. State, 170 Ark. 936, 282 S. W. 4. In Scott, supra, this court said:

“The defendant was convicted on circumstantial evidence, but there is no difference in the effect between circumstantial evidence and direct evidence. In either case it is a question for the jury to determine, and, if the jury believes from the circumstances introduced in evidence, beyond a reasonable doubt, that the defendant is guilty, it is the duty of the jury to find him guilty just as it would be if the evidence was direct. There is no greater degree of certainty in proof required where the evidence is circumstantial than where it is direct, for in either case the jury must be convinced of the guilt of the defendant beyong a reasonable doubt. They are bound by their oaths to render a verdict upon all the evidence, and the law makes no distinction between direct evidence of a fact and evidence of circumstances from which the existance of the fact may be inferred. Nichols’ Applied Evidence, vol. 2, § 4, 1065; Underhill’s Criminal Evidence, pages 14 and 16.”

In Dowell v. State, 191 Ark. 311, 86 S. W. 2d 23, the appellant was convicted of first degree murder based on circumstantial evidence. In affirming that conviction this court said:

“The law is well settled in this State that a jury’s verdict which rests solely upon speculation and conjecture will not be permitted to stand. Jones v. State, 85 Ark. 360, 108 S. W. 223: Martin v. State, 151 Ark. 365, 236 S. W. 274; Adams v. State, 173 Ark. 713, 193 S. W. 19; Hogan v. State, 170 Ark. 1143. 282 S. W. 984. On the other hand, this court, in testing the sufficiency of the testimony to support a jury’s verdict, views such testimony in the light most favorable to the state. Morgan v. State, 189 Ark. 981; Rhea v. State, 104 Ark. 162, 147 S. W. 463. Moreover, circumstantial testimony is legal and proper, and, when properly connected, furnishes a substantial basis and support for a jury’s verdict. State v. Jennings, 10 Ark. 428; Scott v. State, 180 Ark. 408, 21 S. W. 2d 186; Taylor v. State, 178 Ark. 1200, 10 S. W. 2d 853.”

Manslaughter is a degree of homicide defined under Arkansas law (Ark. Stat. Ann. § 41-2207 [Repl. 1964]) as “the unlawful killing of a human being, without malice express or implied, and without deliberation.” Section 41-2208 defines voluntary manslaughter in the following language:

“Manslaughter must be voluntary, upon a sudden heat of passion caused by a provocation, apparently sufficient to make the passion irresistible.”

In § 41-2209, involuntary manslaughter is defined as follows:

“If the killing be in the commission of an unlawful act, without malice, and without the means calculated to produce death, or in the prosecution of a lawful act, done without due caution and circumspection, it shall be manslaughter. Provided further ...”

As to the sufficiency of the evidence to sustain the jury verdict in this case, the question actually amounts to little more than whether there was any substantial evidence from which the jury was justified in concluding that the appellant stabbed Mizell. We conclude that there was. The record is clear that the appellant was not a welcome customer at the Brass Rail. When he was reminded of this fact, he agreed that he had been “barred,” but he went to the Brass Rail anyway “looking for someone.” Young Mizell’s father owned and operated the Brass Rail from which the appellant had been barred. Young Mizell was larger than the appellant and he was found slumped to the floor, with a stab wound in the chest, only a few feet at most from where the appellant was detained by a “blonde headed girl” who had called out twice, “Leon, go call daddy.” The jury might well have interpreted this action on the part of the “blonde headed girl” as an effort to keep appellant separated from those he would harm, or from those who would harm him. In any event, the appellant walked with Mrs. Lanier some undisclosed distance from inside the building to the door, and as described by Mrs. Lanier, “just like he was in a daze.” Mrs. Lanier was the only witness who testified as to what went on inside the Brass Rail, and there is no evidence as to what happened while she delivered beer and cokes to the back booth during the interval between the time appellant said he was looking for someone and the blonde headed girl said, “go call daddy.” As the appellant was leaving the building, for some reason not shown in the record, several customers from the Brass Rail crowded through the door following the appellant to the sidewalk, and carrying Mrs. Lanier along with them “like a bulldozer.” Mrs. Lanier saw someone she did not know knock the appellant down and as the appellant started to arise from the sidewalk, he had a black object four or five inches long in his right hand.

A police officer saw the appellant fall to the sidewalk amidst a crowd in front of the Brass Rail and saw the appellant arise from the sidewalk and “lunge at the crowd.” Officer Thomas saw the members of the crowd go back into the building as he approached them. The appellant was apprehended about two hours after he left the Brass Rail and he had the hunting knife, offered in evidence, stuck under. his belt on his left side and the knife had dried human blood on it. The victim’s blood was type “O” and the bloodstain on the knife was found to be probably type “A” under the procedure used. Type “O” blood can give an “A” type reaction when contaminated with perspiration from a person with “A” type. The test used by the pathologist was very sensitive to “A” type reaction, and “O” type blood could not be ruled out by the tests made.

The evidence before the jury can be summarized as follows: When arrested, the appellant was carrying a knife with bloodstains on it. He had recently come from a tavern from which he had been barred, but to which he had gone “looking for someone.” While the appellant was at the tavern Mizell was stabbed with an instrument commensurate in size and length with the appellant’s knife blade. There is no evidence that anyone else carried such a knife as the appellant carried, and there was no evidence that the stab wound in Mizell’s chest was, or could have been, ^inflicted with an instrument other than one the size and shape of the knife blade the appellant was carrying. We conclude that the evidence is sufficient to sustain the conviction.

As to the appellant’s second point, we are of the opinion that the trial court was correct in- refusing the appellant’s requested instruction on involuntary manslaughter. The requested instruction is as follows:

“Involuntary Manslaughter is defined in law as follows: If the killing be in the commission of an unlawful act, without malice, and without the means calculated to produce death, or in the prosecution of a lawful act done without due caution and circumspection, it shall be involuntary manslaughter.
If you find from the evidence beyond a reasonable doubt that the defendant committed the offense of involuntary manslaughter you will find him guilty thereof. If you do not so find you should acquit him and return a verdict in this case of not guilty.”

The requested instruction contains two paragraphs. The first paragraph defines “involuntary manslaughter,” and the second paragraph, which actually constitutes the instruction, tells the jury to either find the appellant guilty of involuntary manslaughter or acquit him. The appellant was actually charged with, and tried for, second degree murder, but was convicted of voluntary manslaughter. Even if the appellant had been entitled to an instruction on involuntary manslaughter, he would not have been entitled to a directed verdict on all other degrees of homicide under the evidence of record in this case.

The judgment is affirmed.

      At, another place Mrs. Lanier says she first talked to the appellant four or five feet inside the building. There are fourteen seats, or stools, evenly spaced along the length of the bar in the Brass Rail, and Mizell was found slumped to the floor between the fifth and sixth seat from the front of the building.

      The knife taken from the appellant was not well described in the testimony, except as a "black western type knife” by Dr. Carlton. The knife is before us as an exhibit. It is a hunting type knife designed to be carried in a scabbard on a belt. The blade is formed by a single piece of steel extending through the black handle. The handlegrip and blade are separated by the usual handguard seen on this type hunting knife.


source: Caselaw Access Project

author: Conley Byrd, Justice.

license: Public Domain

text:
    Lewis R. DAVIS v. STEARNS-ROGERS CONSTRUCTION CO. et al
    5-5208
    451 S. W. 2d 469
    Opinion delivered March 23, 1970

      Huey & Vittitow, for appellant.

      John M. Lofton, Jr., for appellees.
   Conley Byrd, Justice.

Involved on this appeal is the interpretation of the successive disabilities section of our Workmen’s Compensation Act, Ark. Stat. Ann. § 81-1313(f)(2)(ii) (Repl. 1960 and Supp. 1969).

The record shows that at the time of his injury on February 17, 1967, Davis had already received Workmen’s Compensation awards for a total of 75% disability to the body as a whole. In addition he was drawing total disability from the Social Security Administration and had gone to work for appellee Stearns-Rogers Construction Co. on a trial basis at the suggestion of the Social Security people. He was injured during the first three months of his return to gainful employment.

Appellant’s claim was first presented to the Commission on a joint petition for a lump sum settlement on the basis of an additional 15% permanent disability. After the joint petition was denied, the claim was submitted to the Commission upon the testimony of Davis and Dr. Richard Logue.

Davis testified that he had received a tenth grade education; that his only occupation was that of an iron worker; and that his most recent injury had rendered him unable to work. In July 1960, he had been awarded 10% permanent partial disability for an injury sustained while employed by Chemical Construction Company. In December 1961, he had received an additional 10% permanent disability for another injury while employed by the same company. In December 1962, he received an additional 10% disability for an injury sustained while working for Tidewater Construction Company. In May 1966, he had received an additional 45% disability for an August 1964, injury sustained while working for Papco, Inc. At the time of his injury on February 15, 1967, he was drawing, in addition to his earnings and with the knowledge of the Social Security people, full Social Security disability benefits.

Dr. Richard M. Logue testified that he had treated Davis off and on for some time. He had estimated that he had a total disability of 37/£% as a result of his injury May 10, 1962, and a total disability from 75 to 80% as a result of his 1964 injury. When he saw Davis on October 24, 1967, he thought Davis had an additional disability of 15% because of the February 1967, injury, but when he again saw him on April 8, 1968, he was distressed to see his mental and physical condition On the latter date, Davis was not able to perform any type of labor from a physical and mental standpoint. In his opinion as an orthopedist there was a connection between physical disabilities sustained by Davis and his regressed mental condition. On cross-examination he stated that Davis’ 1967 injury may have caused a flare-up of something that had become quiescent.

The Commission’s award is summed up in its written opinion as follows:

“The issue before the Full Commission is the extent of disability suffered by Claimant as a result of his' compensable injury of February 15, 1967. The evidence reflects that the Claimant sustained a 15 percent physical impairment as a result of the injury to his neck and shoulders on February 15; 1967. As a result of said injury he is now incapable of working, or said another way, his capacity to earn is now completely diminished. Prior to the injury of February 15, 1967, Claimant had been paid compensation benefits as the result of several injuries to his back in the aggregate of 75 percent to the body as a whole. It is to be noted that none of the previous injuries sustained by Claimant were in the same employment. This raises the question of whether the present employer-respondent is entitled to receive credit for the 75 percent permanent partial disability previously paid by others as a result of injuries. If we proceed on the premise that the employer takes a workman as he finds him, then no credit can be allowed. In other words, an employee, while in the employment of Employer 'A’, sustains an injury which renders him totally disabled and he subsequently establishes an earning capacity with Employer ‘B’ and suffers a subsequent injury while in the employment of Employer ‘B’ which renders him again totally disabled; can he be paid for the second total incapacity caused by the injury while in the employment of Employer ‘B’P We believe he can and should be. In the case of O. K. Processors, Inc. v. Charles Dye, 241 Ark. 1002, the Supreme Court held • that the question to be decided is the extent of disability caused by the present injury disregarding all previous disabilities and that is what we do here. The evidence clearly reflects that the Claimant is totally disabled as the result of the injury of February 15, 1967, and said injury caused the total incapacity. Therefore, Claimant is entitled to compensation for total disability as a result thereof.”

The Circuit Court in reviewing the record pursuant to Ark. Stat. Anri. § 81-1325 (Repl. 1960 and Supp. 1969), held that the evidence was insufficient to sustain the Commission’s award and fixed the compensation at 15% to the body as a whole. For the reasons hereinafter stated we reverse and remand to the Workmen’s Compensation Commission for a determination of the degree of disability that would have resulted from February 1967, injury if the previous disability had not existed.

The statute here involved, Ark. Stat. Ann. § 81-1313(f)(2)(h), provides:

“If the subsequent injury is one that is not scheduled under section 13(c), the injured employee shall be paid compensation for the healing period and for the degree of disability that would have resulted from the subsequent injury if the previous disability had not existed.”

It appears that the Commission has here taken the view that, if the employee is capable of gainful employment, the subsequent employer must take the employee as the employer finds him and that for purposes of compensation, the Commission may disregard previous disabilities. That is neither our understanding of the statute above, nor of our holding in O. K. Processors, Inc. v. Dye, 241 Ark. 1002, 411 S. W. 2d 290 (1967).

Our understanding of Ark. Stat. Ann. § 81-1313(f) (2) (ii), is that if Davis’ prior disabilities are a contributing factor to his present total permanent disability, then Stearns-Rogers Construction Co., as a subsequent employer, is not liable for 100% of the total permanent disability but only for that degree which would have resulted had the prior disability not existed.

The reason for the apportionment of liability for compensation for permanent disability between prior and subsequent injuries is stated in Larson Workmen’s Comp. Vol. 2, § 59.31 as follows:

“While at first glance it might appear that the apportionment rule favors the employer and non-apportionment the employee, in practice the non-apportionment rule proved the worse of the two evils from the standpoint of the handicapped worker. As soon as it became clear that a particular state had adopted a rule requiring an employer to bear the full cost of total disability for loss of the crippled worker’s remaining leg or arm, employers had a strong financial incentive to discharge all handicapped workers who might bring upon them this kind of aggravated liability. When loss of a single eye might mean a compensation liability of $5,000 for a man with two good eyes but $26,000 for a man with only one, the compensation insurance premium on the latter would naturally be markedly greater. It has been said, for example, that within the thirty days following the announcement of the nonapportionment rule in Nease v. Hughes Stone Company, [114 Okla. 170, 244 P. 778 (1925)], between seven and eight thousand one-eyed, one-legged, one-handed men were displaced in Oklahoma.”

Neither do we interpret our opinion in O. K. Processors, Inc. v. Dye, supra, as holding to the contrary. In that case we held that the degree of disability resulting from the subsequent injury was a question of fact for the Commission. In so holding we partially quoted from Larson Workmen’s Comp. Vol. 2, § 59.42. The full paragraph in Larson from which we quoted is as follows:

“The capacities of a human being cannot be arbitrarily and finally divided and written off by percentages. The fact that a man has once received compensation as for 50 percent of total disability does not mean that ever after he is in the eyes of compensation law but half a man, so that he can never again receive a compensation award going beyond the other 50 percent of total. After having received his prior payments, he may, in future years, be able to resume gainful employment. In the words of the Colorado court, he may have resumed employment as a ‘working unit’. If so, there is no reason why a disability which would bring anyone else total permanent disability benefits should yield him only half as much.”

There is nothing in the foregoing quote from Larson inconsistent with what we have said above. A further elucidation of this statement can be found in cases cited by Larson. For instance, in Young v. Dreamland Bedding Co., 133 So. 2d 414 (Fla. 1961), the employee during World War I had lost his index, middle and ring fingers on his left hand but through utilization of his little finger and thumb had successfully carried on his occupation as a carpenter. For an injury to his little finger that made it impossible to longer use his hand, the Florida court reinstated a commissioners award of 90% loss of use of the hand on the ground that the pre-existing loss was only a 50% functional but nondisabling loss of the hand. Larson points out the correctness of the decision under the apportionment statutes which allow compensation for disability that would have existed if the prior injury had not occurred.

The circuit court’s determination that the evidence would not support an award in excess of 15% permanent disability was in part based upon the premise that Dr. Logue’s testimony would not support a finding that Davis’ present mental depression resulted from his last injury. In this the court was in error, for Dr. Logue Stated that, as an orthopedist, he thought there was a connection between Davis’ physical disabilities and his regressed mental condition.

Under our decision in Burrow Construction Co. v. Langley, 238 Ark. 992, 386 S. W. 2d 484 (1965), we are remanding the case with directions to remand the cause to the Commission for a determination of a proper award in accordance with this opinion.


text:
    Joe LIBERTO and James H. MOTHERSHED v. STATE of Arkansas
    5468
    451 S. W. 2d 464
    Opinion delivered March 23, 1970

      Thomas C. Pitts, for appellants.

      Joe Purcell, Attorney General; Don Langston and Mike Wilson, Asst. Attys. Gen., for appellee.
   Conley Byrd, Justice.

Appellants Joe Liberto and James H. Mothershed were convicted of keeping a gambling house contrary to Ark. Stat. Ann. § 41-2001 (Repl. 1964), which provides:

“Every person who shall keep, conduct or operate, or who shall be interested, directly or indirectly, in keeping, conducting or operating any gambling house, or place where gambling is carried on, or who shall set up, keep or exhibit, or cause to be set up, kept or exhibited, or assist in setting up, keeping or exhibiting, any gambling device, or who shall be interested directly, or indirectly in running any gambling house, or in setting up and exhibiting any gambling device or devices, either by furnishing money, or other articles for the purpose of carrying on any gambling house, shall be deemed guilty of a felony, and on conviction thereof, shall be confined in the State penitentiary for not less than one [1] year nor more than three [3] years.”

For reversal, appellants rely upon the following eight points:

“I The court erred in overruling the defendants’ motion to suppress the evidence and quash the search warrant.
II. The court erred in permitting Clyde Miller, a witness for the State, to introduce and testify that certain pieces of paper were betting slips based upon hearsay evidence- or what an informant told him they were.
III. The Court erred in permitting Bill Young, a witness for the State, to testify as to conversations he had with persons on the telephone while the officers were in the process of executing the search warrant.
IV. The Court erred in permitting Forrest Reynolds, a witness for the State, to testify about telephone calls placed to and from the telephones in the defendant Mothershed’s home, based upon the records of the local Southwestern Bell Telephone Company.
V. The Court erred in permitting Johnny Etter, a witness for the State, to testify pertaining to blocks of accoustical material with numbers thereon which he had no personal knowledge of.
Vi. The Court erred in overruling the defendants’ motion for a directed verdict at the conclusion of the State’s case.
VII. The Court erred in refusing to give defendants’ requested instructions number one, two and three.
VIII. The verdict of the jury is based upon speculation and conjecture.”

The record shows that Ralph Hampton, a Fort Smith Police officer, was investigating alleged gambling law violations. About 8:55 A. M. on February 11, 1969, he was in the Continental Restaurant and observed Mr. Liberto enter and go to the cashier’s stand where he deposited a substance of paper resembling a folded newspaper. When Hampton went by the cashier’s stand he observed on the paper the words “daily racing form” and that the female cashier put it under the stand. At about 9:05 A M. on the same date he observed Mr. Liberto on Midland Boulevard going to an establishment with a sign outside, “Martin’s Garage”. On February 14, at 8: A. M. he again observed Mr. Liberto at the Continental Restaurant. Mr. Liberto there got out of his vehicle with a sheaf of folded paper about 'A inch thick. Mr. Liberto went into the restaurant and came out in a minute or two empty-handed. Officer Hampton then followed Liberto and observed him make a series of stops at various businesses. In each instance Liberto got out of his car with a folded piece of paper in his hand, entered the business, stayed very briefly and came out empty-handed. Again Liberto went to Martin’s Garage on Midland Boulevard and stayed until officer Hampton left.

Captain Bill Young of the Fort Smith Police Department was also engaged in investigating gambling activities in the city. He knew both Mr. Mothershed and Mr. Liberto. At about 10:00 A. M. on February 10th he saw Mr. Mothershed in the Continental Restaurant. When Mothershed finished his coffee he went to the check-out stand, paid his check and handed the waitress a piece of rolled-up paper with some money sticking out of it, which she put in her pocket. He had seen Mothershed carry papers that looked like newspapers in and out of his apartment. Captain Young was at Mothershed’s apartment when officers were searching the apartment. While there he answered three telephone calls; one lady wanted “Joe” to bring some racing forms, one lady wanted to place a bet and a man asked if the “scratch” sheet was out. This all occurred while the raid was going on. Captain Young did not give Mr. Mothershed an opportunity to talk to any of the people that called.

Officer Clyde Miller testified that he also was engaged in investigation of gambling activities. On February 10, he saw Mr. Mothershed at the Continental Motel Restaurant. When Mothershed finished eating, walked to the cash register and paid his bill, he handed the waitress a guest check with some money which she put under the counter. On February 11, he saw Mr. Liberto go to apartment 7 at 1118 North J Street (Mothershed’s apartment) with a racing form. On the 13th, Mr. Liberto again went to the apartment with racing forms — in fact, both defendants had been seen going to the apartment with racing forms. On February 17, Officer Miller, together with other officers, went to Mothershed’s apartment with a search warrant for apartments No. 4 and 7. At that time officer Miller served the search warrant upon Mr. Mothershed and Mr. Liberto who were in Apartment No. 7. In the apartment they found two racing forms, two telephones, one numbered SU 3-4702 in the living room, and SU 3-4786 in the bedroom. Mr. Liberto tried to stuff some papers, etc., down the drain but Captain Miller stopped him. In this raid they obtained a black notebook marked off with letters A, B, C, D, E, F and so forth. Also a small hand stapler, a box of staples, rubber bands, scratch pads and betting slips were found in a cabinet drawer. In the trash can they also found some scratch pads and torn-up betting slips. During the search of the apartment, appellant Mothershed stated to the officers, “Boys, that’s what you’re looking for,” referring to betting slips and other articles introduced as evidence. Mothershed also stated to Captain Miller, “Boys, we’re going to do it. You may as well leave us alone. Gambling is just like drinking whisky. People are going to gamble — they’re going to drink whisky. It’s my job. I’m not going to stop.”

Another officer, Johnny Etter, testified that he found some peg boards underneath a kitchen cabinet in apartment 7 and that he did not know what Mothershed was using the peg boards for.

Forrest Reynolds, a Southwestern Bell Telephone Company employee, testified about telephone company records of numerous calls made from the telephones in appellants’ premises to various cities and collect calls from various cities to appellants’ telephones. Some of the cities were Hot Springs, Las Vegas, and San Pedro, California. No objection was made to the testimony of this witness but when the records were introduced appellant did object but saved no exceptions.

POINT I. Appellants, in arguing that there was no probable cause for the issuance of search warrants, admit that the affidavit on its face might be sufficient grounds for issuance of the search warrant, but then argue that when we examine the facts upon which the affidavit was based they fall far short of the standards of probable cause for the issuance of a search warrant required by Aguilar v. Texas, 378 U. S. 108, 12 L. Ed. 2d 723, 84 S. Ct. 1509 (1964), and Spinelli v. United States, 393 U. S. 410, 21 L. Ed. 2d 637, 89 S. Ct. 584 (1969).

The affidavit sworn to by Officer Miller, upon which the search warrant was issued, provides:

“That he has reason to believe that on the premises known as 1118 North J Apartments No. 4 and No. 7 in the City of Fort Smith, County of Sebastian, State of Arkansas, there is now being concealed certain property, namely telephones SU 3-4702, SU 3-4786, scratch pads, racing forms, receipt books, business cards with phone numbers SU 3-4702, SU 3-4786, note books, ledgers, rubber stamps, which are believed to have been and are being used in connection with betting on horses.
“And that the facts tending to establish the foregoing grounds for issuance of a search warrant are as follows: Personal observation of this affiant of known gamblers entering and leaving the premises with racing forms in their possession, and personal knowledge of affiant that telephones over which bets have been placed are listed as being in the premises.”

At a hearing on the motion to supress the evidence obtained in the search, it was shown thát Officer Miller did not actually have personal knowledge of bets being placed over the phones but that the knowledge was that of Officer Burns, also involved in the investigation. In addition to the information received by Officer Burns, the officers had received what might be termed a calling card, rubber stamped with the two telephone numbers. When counsel for appellants objected to introduction of testimony showing probable cause contrary to that contained in the affidavit, the trial court stated:

“Well, Mr. Pitts, I can tell you this that when this affidavit — these officers came to me, I put them under oath and examined them extensively with respect to the basis of their information and the reasons that they said that they knew these things, and for one thing I asked them, ‘Why do you say that these phone numbers are incriminating? Anybody can have a telephone.’ And they then told me about — they then gave me the information that he is testifying to now. I agree with you, it is not set out in the Affidavit, but in my capacity as a magistrate examining the credibility, so to speak, of the affiant, I did require him to go into this background information to connect these numbers with this activity.”

The general rule is that, in the absence of a statute, a subsequent showing of the falsity of an affidavit for search warrant cannot retrospectively invalidate a warrant valid when it was issued. See United States v. Brunett, 53 F. 2d 219 (W. D. Mo. 1931); United States v. Bowling, 351 F. 2d 236 (6th Cir. 1965); and Annotation in 5 A. L. R. 2d 394. In Rugendorf v. United States, 376 U. S. 528, 11 L. Ed. 2d 887, 84 S. Ct. 825 (1964), the United States Supreme Court points out that it has never ruled on the question. As noted in the Bolling case, supra, courts generally look with disfavor upon collateral attacks which are based on claims of falsity in the statements of an affidavit upon which a search warrant is issued.

Like the U. S. Supreme Court in Rugendorf v. United States, supra, the record before us supports a showing of probable cause whether we limit it to the affidavit or to the testimony that the trial judge said he had before him at the time he issued the search warrant. For either or both of the reasons stated, we find appellants’ contention to be without merit.

POINTS II, V, IV, VI and VIII: We give no consideration to appellants’ points II and V because no objections or exceptions were taken in the trial court. Neither do we give any consideration to appellants’ point IV, because no exceptions were saved. Appellants’ points VI and VIII., having to do with sufficiency of the evidence, we find without merit, because the above outlined testimony is ample to show that appellants maintained an establishment to receive and make bets on horse racing within the meaning of Ark. Stat. Ann. § 41-2001.

POINT III. Appellants here object to Captain Young’s testimony that while he was in the apartment he answered three telephone calls, one from a lady who wanted Joe to bring some racing forms, another from a lady who wanted to place a bet and the third, a man who asked if the scratch sheet was out. These telephone calls were received in the presence of the two appellants. We pointed out in Motors Insurance Corporation v. Lopez, 217 Ark. 203, 229 S. W. 2d 228 (1950), that a statement made out of court is not hearsay if it is given in evidence for the purpose of proving that the statement was made, providing that the purpose is otherwise relevant in the case at trial. The statements here given were obviously relevant to show the use of the telephone numbers involved. See Annot., 13 A. L. R. 2d 1409. Therefore we find this contention without merit.

POINT VIL The trial court, in its instruction No. 7, instructed the jury as follows:

“Every person who shall keep, conduct or operate, or who shall be interested, directly or indirectly, in keeping, conducting or operating any gambling house, or place where gambling is carried on, or who shall be interested directly, or indirectly in running any gambling house shall be deemed guilty of a felony. An establishment maintained for the purpose of receiving and making bets on horse races is a gambling house within the meaning of law. If you find beyond a reasonable doubt either or both of these defendants within the Fort Smith District of Sebastian County, Arkansas, did commit the offense charged in the indictment and as just defined to you, you will find such defendant or defendants guilty thereof and fix his punishment at not less than one nor more than 3 years in the penitentiary. If you do not so find you should acquit such defendant or defendants.”

Appellants’ requested instruction No. 1, which the court refused, would require the jury to find beyond a reasonable doubt “that the defendants operated and maintained Apartment No. 7. . .as a place where those who do desire to engage in gambling may resort to and find shelter while engaging in their gambling practices.” As can be seen from the statute, above, the keeping of a gambling house is not limited to a place where those engaged in gambling find shelter. For this reason the trial court properly refused appellants’ requested instruction No. 1.

Appellants’ requested instruction No. 2 would require the jury to find beyond a reasonable doubt that there was an actual wager between appellants and their customers before either defendant could be found guilty. Since the statute makes criminal the conduct of those who are interested directly or indirectly, the trial court properly overruled the instruction as it would require the jury to find that appellants were directly involved.

The trial court properly refused appellants’ requested instruction No. 3. Instruction No. 3 would require the jury to find that an offer to bet on a horse race was made to appellants and that appellants themselves accepted said offer to bet. The instruction as offered was erroneous because it would require the jury to find defendants guilty of wagering before it could find them guilty of operating a gambling house.

Affirmed.


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

text:
    Ernest Scott PETREE v. STATE of Arkansas
    5474
    451 S. W. 2d 461
    Opinion delivered March 23, 1970

      Charles E. Davis, for appellant.

      Joe Purcell, Attorney General; Don Langston, Asst. Atty. Gen., for appellee
   Frank Holt, Justice.

Upon a jury trial the appellant was found guilty of burglary and grand larceny, as charged by information, and his punishment assessed at 5 and 12 years respectively in the penitentiary. From a judgment on those verdicts comes this appeal. For reversal appellant contends that the trial court erred in admitting into evidence appellant’s incriminating admissions since they were involuntarily given. We must agree with the appellant’s contention.

The appellant objected to the proffered evidence of his confession to police officers. In accordance with the requirements in Jackson v. Denno, 378 U. S. 368 (1964), the court conducted an evidentiary hearing in chambers to determine the voluntariness of appellant’s confession. The trial court found the confession was voluntarily given and permitted appellant’s incriminating admissions to be presented in evidence to the jury.

When the voluntariness of a confession is disputed on federal constitutional grounds it is the responsibility of the appellate court to examine the entire record and make an independent determination of the voluntariness of the confession. Harris v. State, 244 Ark. 314, 425 S. W. 2d 293 (1968).

The appellant was arrested about 12:30 p.m. on a Saturday. He was placed alone in a security cell by the two arresting officers. About three hours later, these two officers brought him to their office and interrogated him about some stolen goods, some of which were exhibited to him. The appellant testified that his request to call a lawyer was denied and after 20 or 30 minutes of questioning he was returned to his cell. About an hour or two hours later the same officers “called me out again.” This time he was permitted to use the phone and he was unable to locate the lawyer he was calling. The officers then showed him a signed confession by the appellant’s brother and informed appellant that: “[T]hey had fingerprints and witnesses, that I might as well sign it and I told them I wanted to talk to a lawyer before I signed anything. So they took me back to my cell.” This interrogation lasted about 20 minutes. He was left in the security cell for another two or three hours before he was again interrogated by two other officers. Up to this point his narration of events appears uncontradicted.

These two different officers resumed the questioning of appellant about 9:30 that night. One of these officers testified that they began their interrogation by reading to him a waiver form that incorporated the safeguards which are required in Miranda v. Arizona, 384 U. S. 436 (1966). The officer testified that the appellant responded by saying:

“I understand what my rights are but I do not want to sign the waiver. I’ll tell you what happened, but I will not sign the waiver.”

This officer testified that the appellant also said: “[H]e didn’t want to sign a waiver until he talked with a lawyer.” Further, the appellant made no request in his presence to call a lawyer. This officer stated that he continued to interrogate appellant and made notes in longhand as to what he told him. The appellant was returned to his cell. The officer typed “the report” and about 10:20 p.m. the appellant was again removed from his cell at which time it appears that he signed this report or statement.

The other officer who was present during this interrogation verified that the Miranda warning was read to appellant by his fellow officer. He was asked what response appellant made after reading to him his rights. He answered: “At first he advised that he would decline to talk to begin with for just a few minutes, then he changed his mind.” This officer also testified that the appellant refused to sign a waiver. Further:

“Q. Did he request an attorney at that time?
A. Yes, and he said he’d been attempting to call one. We offered again at that time to let him call.
Q. He refused to sign a waiver without an attorney being present?
A. Y es, sir.
Q. How long thereafter did the interrogation continue?
A. Probably ten or fifteen minutes.”

The officer further testified that when the appellant was told he could use the phone to call a lawyer the appellant replied that: “[H]e had tried to call a short time before and he wasn’t in.” The appellant thereafter made and signed the incriminating statement.

The question is presented whether the confession made by the appellant comports with the requirements in Miranda that:

“Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact, that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned. * * *”

In Harris v. State, supra, we said:

“The prerequisites for the admission in evidence of any statements made by a defendant when he is in custody of officers are found in Boyd and Byrd v. State, 230 Ark. 991, 328 S. W. 2d 122 (1959). There is a presumption that it is involuntary; and the burden is on the State to show the statement to have been voluntary, that is, freely and understandably made without hope of reward or fear of punishment. In making those determinations the court looks ‘to the whole situation and surroundings of the accused.’ ”

In the case at bar, after an independent review of the entire record of the Denno proceeding and considering the total situation and the surroundings of the appellant, we must conclude that this 19-year-old boy’s incriminating statements, even though he had previously had experience as an offender, were involuntary and, therefore, inadmissible when the requirements of Miranda are applied, together with those of Harris v. State, supra. In the very recent case of Pierce v. State, 248 Ark. 204, 451 S. W. 2d 219, we interpreted Miranda to mean that the accused has the unqualified right to stop the questioning and consult with an attorney and this request precludes further questioning until there is in fact the requested consultation.

It necessarily follows that the judgment must be reversed and the causes remanded.

Fogleman, J., dissents.

John A. Fogleman, Justice,

dissenting. I would affirm the judgment in this case. There' cannot be any doubt that before appellant made any incriminating statement he was fully advised of his rights to remain silent, to have the advice of counsel and to stop interrogation. The testimony of the officers revealed that Petree first indicated that he did not want to talk, but after a few minutes changed his mind and thereafter did not refuse to talk or to answer questions. He simply wanted the advice of counsel before he signed anything, either a waiver of his rights or his incriminating statement. Appellant admits that he told Officer Brooks that he wanted to talk to a lawyer before he signed anything. He testified that Brooks then returned him to a cell. He did testify that Officer Dennis had denied him an opportunity to call a lawyer when he requested this right, but he also admits that he said to this officer that he wanted to see his lawyer before he signed a confession or anything. Petree admits that he understood his constitutional rights. He did sign the questioned statement after he had taken the officers to the place where some of the stolen property was concealed.

The circuit judge made these findings:

“ * * Now, as to the voluntariness of this, it is admitted that Mr. Petree has had contact with authorities previously. In fact, I believe he said he had used Mr. Prosecuting Attorney as his attorney, so he admitted that he knew of his right of trial by jury and all. Having an attorney is one thing and making an attempt to get one is another. He didn’t have an attorney of record at this time, anyone to discuss his problems with. It is obvious because if you recall the prosecuting attorney, he’d been told he couldn’t represent the defendant since he was prosecuting attorney so he didn’t have an attorney at the time of this event. He does say that he wanted to make a telephone call and he finally called for Mahlon and Mahlon was out of town. The police said when he asked about me, they said, here is the telephone and you can use it. That was after nine o’clock. They said he was here in Fayetteville and the attorneys all have home addresses. He says that is not true, so I will have to make a determination at that point. There was no physical violence indicated by any of the testimony or coercion. The only thing, he says that when he asked for some cigarettes and talked to his wife — or asked to talk to his wife, that he was refused and the statement was made by Dennis that if “you make it hard on us, we’ll make it hard on you.” The fact that he didn’t give him cigarettes or allow him to call his wife, both those things are completely understandable but as far as his constitutional rights, I don’t know as he had a right to demand free cigarettes or demand to call his wife, which is quite different from saying, if you insist on calling your lawyer we’ll make it hard on you. That isn’t the testimony. He said he made the verbal statement but he didn’t want to sign a waiver. He did say he knew his constitutional rights because he’d had them explained to him before. So he is not a moron, he is physically able, he wasn’t doing anything, in his opinion — I asked him and he thought he was perfectly normal. So I don’t believe you have met the requirements that are required to make an involuntary statement.’ ”

Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), prohibits questioning if the accused indicates that he wishes to consult an attorney before speaking. I submit that when these circumstances are reviewed, the finding that the statement was not involuntary was justified.

We have previously considered willingness of the subject to answer questions, even though he refused to sign a waiver of rights and later requested a lawyer before he signed the waiver, as a significant factor in determining that a trial judge’s finding of voluntariness had adequate evidentiary support. Walton & Fuller v. State, 245 Ark. 84, 431 S. W. 2d 462, Fuller & Walton v. State, (April 21, 1969), 439 S. W. 2d 801, cert. denied, 396 U. S. 930, 90 S. Ct. 260, 24 L. Ed 2d 228 (1969).

I also submit that the majority has failed to follow the precepts of Harris v. State, 244 Ark. 314, 425 S. W. 2d 293, cert. denied, 393 U. S. 941, 89 S. Ct. 308, 21 L. Ed. 2d 278 (1968), that the findings of the trial judge are entitled to considerable weight in resolving evidentiary conflicts and to respectful consideration on the crucial issue of voluntariness. The result reached here gives neither. The area of disagreement with the trial court is not delineated.

I would distinguish this case from Pierce v. State, 248 Ark. 204, 451 S. W. 2d 219, in that there was no expression of willingness on the part of Pierce to talk or answer questions, and no limitation on the point at which he wanted the advice of an attorney, as was the case here.


author: Carleton Harris, Chief Justice. John A. Fogleman, Justice, George Rose Smith, Justice, Conley Byrd, Justice, Frank Holt, Justice,

text:
    Dennis TURNER v. STATE of Arkansas
    5488
    452 S. W. 2d 317
    Opinion delivered March 30, 1970
    [Rehearing denied May 4, 1970.]

      Shaver, Tackett, Young ir Patton; By: Gene Harrelson, for appellant.

      Joe Purcell, Attorney General, for appellee.
   Carleton Harris, Chief Justice.

The issue in this case is whether appellant, Dennis Turner, who was tried and acquitted of first degree murder can now be charged and tried for robbery which arose out of the same act. The appellant was charged by the filing of an Information with “willfully, feloniously and violently taking from the person of Larry Wayne Yates, on the 25th day of December, 1968, a sum of money in excess of $300.00 in currency, forcibly and against the will of said Larry Wayne Yates, by intimidating and putting in fear the said Larry Wayne Yates- and while perpetrating robbery, Defendant Dennis Turner did feloniously, willfully, and with malice aforethought, and with premeditation and deliberation, did kill and murder Larry Wayne Yates with a gun # # * in violation of Arkansas Statute 41-2205.”

Appellant was acquitted of murder by a jury on April 24, 1969, and was charged by a grand jury indictment on October 3, 1969, with the crime of robbery. The appellant sought dismissal of the indictment on the grounds that it constituted double jeopardy, and res judicata. The court denied appellant’s motion to dismiss and granted him this appeal. For reversal appellant contends that the doctrines of double jeopardy and res judicata preclude a relitigation of the issue of robbery between the state and the appellant, i iw points are asserted for reversal, but all relate to these two issues.

On appeal it is stipulated: “That the murder charge, of which Defendant Dennis Turner was acquitted, and the robbery charge arose out of the same set of facts, circumstances, and on the same occasion.-

“That the same testimony adduced by the State of Arkansas in the murder trial will necessarily need be reintroduced in this robbery charge.”

The information accusing the appellant with murder was two-pronged: (1) that the murder was committed in perpetration of the crime of robbery and (2) that appellant committed the murder “feloniously. willfully, and with malice aforethought, and with premeditation and deliberation.” This is permissible by Ark. Stat. Ann. § 41-2205 (Repl. 1964) which is our felony-murder statute.

We disagree with appellant’s contentions that the indictment should be dismissed on the principle of double jeopardy. This question was discussed in the Washington case of State v. Barton. 105 P. 2d 63, and also in the Idaho case of State v. Hall, 383 P. 2d 602. Both Barton and Hall had been accused of murder in the first degree, it being alleged that each killed a person while engaged in the perpetration of the crime of. robbery. In each instance, there was an acquittal on the charge of murder, and the defendants were subsequently charged with robbery: In rejecting the argument of double jeopardy in Bartonj the Washington Supreme Court said:

“Appellant contends that the offense of murder in the first degree, as charged in the information in the prior case, necessarily includes the offense of robbery; and that, therefore, his acquittal in that case operates as a bar to the information in the present case.

“A person is not put in second jeopardy by successive trials unless they involve not only the same act, but also the same offense. There must be substantial identity of the offenses charged in the prior and in the subsequent prosecutions both in fact and in law. The same act may be a violation of two different penal statutes, in which case there may be two separate and successive prosecutions against the offender because the offenses are not the same.”

Likewise in holding against the contention of double jeopardy in State v. Hall, supra, the Supreme Court of Idaho said:

“The allegation that the homicide occurred in the perpetration of a felony, does not charge the accused with the commission of the felony referred to, nor make it an offense included in the murder charge; it merely characterizes the murder as to degree. * * *

“The crime of murder may be committed without the commission of any of the felonies named in the statute, and the allegation that the homicide was committed while its perpetrators were engaged in a robbery does not charge that the robbery was the manner or means by which the murder was accomplished. The murder was charged to have been committed by means of a gun. The robbery was alleged only as a condition or circumstance characterizing the murder as first degree. The robbery was not an ‘included offense’ in the murder charge. It is clear from the statutory definitions, supra, that murder and robbery are separate, distinct and independent crimes. Neither is the ‘same offense’ as the other, within the constitutional provision against double jeopardy, and a prosecution for one does not bar a subsequent prosecution for the other on that ground. [Here, cases from thirteen states are cited.]”

The court then quoted from 22 C. J. S., Criminal Law, § 278, (1), Page 717, as follows:

“The test is the identity of the offenses, and not the identity of the occurrences or facts out of which they arise; it is not whether accused has already been tried for the same act, but whether he has been put in jeopardy for the same offense.”

It definitely appears that this is the rule followed by a great majority of the states.

Though Arkansas has no exact case in point, the case of Binganan v. State, 181 Ark. 94, 24 S. W. 2d 969, is certainly analagous. There, Binganan was convicted for forging and uttering a check, but upon appeal to this court, upon confession of error by the Attorney General, the cause was reversed. Binganan was also indicted for obtaining money under false pretenses by the issuance of the same check. He pleaded his former acquittal. In rejecting this argument, we said:

“Nor was the plea of former acquittal available to appellant. It is true that he was convicted of the offense for the same act, that of issuing the check upon a bank in which he had never had an account and cashing it, upon which he was convicted [of] forging and uttering the same check as a forged instrument, but he was not put in jeopardy a second time by this trial for the same offense, but for an altogether different one. ‘The test is not whether the defendant has already been tried for the same act, but whether he has been put in jeopardy for the same offense. [Citing cases.]”

So, though acquitted on the charge of forgery, Binganan was then convicted of false pretenses, the offense being the writing of the same identical check, and the conviction being based upon the same proof used in the forgery case.

It will be noted that the test set out in Binganan is the identical test set out in the general rule heretofore cited. We find no merit in this contention.

Nor do we agree that the robbery indictment should be dismissed under the doctrine of res judicata.

There are no criminal cases in this state relative to the application of res judicata, but we have several civil cases, and the principle is, of course, the same. The doctrine of res judicata, is discussed in several Arkansas cases. In order to sustain a plea of res judicata, it must appear that the cause involves the same subject matter as that determined or which could have been determined in a former suit between the same parties. The bar of the former judgment extends to those questions of fact and law which were decided in the former action or which might have been but were not presented. See Ozan Lumber Co. v. Tidwell, 213 Ark. 751, 212 S. W. 2d 349; Andrews v. Victor Metal Products Corp., 235 Ark. 568, 361 S. W. 2d 19.

In Hastings v. Rose Courts, 237 Ark. 426, 373 S. W. 2d 583, we said:

“ ‘ “It is undoubtedly settled law that a judgment of a court of competent jurisdiction upon a question directly involved in one suit is conclusive as to that question in another suit between, the same parties. But to give this operation to the judgment it must appear either upon the face of the record, or be shown by extrinsic evidence, that the precise question was raised and determined in the former suit. If there be any uncertainty on this head in the record — as, for example, if it appear that several distinct matters may have been litigated, upon one or more of which the judgment may have passed, without indicating which of them was thus litigated, and upon which the judgment was rendered, — the whole subject-matter of the action will be large, and open to a new contention, unless this uncertainty be removed by extrinsic evidence showing the precise point involved and determined.* * *” ’ ”

Applying the language quoted to the case before us, it is at once apparent that res judicata is not applicable. The only question determined in the murder trial was whether Turner was guilty of murder. That question has now been adjudicated. But the question of whether he was guilty of robbery was not adjudicated in the first case, and under our statutes, could not have been determined. Murder and robbery cannot be joined together in one indictment. Ark. Stat. Ann. § 43-1010 (Repl. 1964). In fact, there is no offense that can be jointly tried with murder, although that charge includes both first and second degree murder, and manslaughter. Since Turner could not legally be tried for the offense of robbery at the same time he was being tried for murder (and was not so tried), his acquittal on the murder charge certainly was not an adjudication of his guilt or innocence on the robbery charge. This question was likewise discussed in the Washington case of State v. Barton, supra, and also in the Idaho case of State v. Hall, supra. On the question of res judicata, the Washington court said:

“The doctrine of res judicata, as distinguished from second jeopardy, does, as appellant asserts, apply to criminal actions as well as to civil causes; but it is subject to the same limitations. One such limitation is stated in 34 C. J. 969, § 1386, as follows: ‘The rule as to the conclusiveness of a judgment in a criminal case is subject to the same exceptions and limitations as those which pertain to judgments in civil actions. * * *'

“* * * It is not possible to determine whether the jurors returned a verdict of acquittal because they credited the testimony in support of appellant’s alibi, or for the reason that they found the state’s evidence insufficient as to one or more essential elements of the offense charged. They could have utterly disregarded all of the testimony adduced by the appellant in his defense and yet have returned a verdict of not guilty. The verdict and the judgment based thereon were not, therefore, res judicata as to appellant’s alibi, nor as to any other particular fact. They were res judicata only as to the ultimate fact that appellant was not guilty of the crime of which he was accused.”

The court held that Barton’s acquittal on the murder charge did not prevent his being tried on the robbery charge.

In State v. Hall, supra, the court stated that, though Hall was acquitted of the charge of murUer, the issue was never joined between the state and defendant on the charge of robbery as such, and the defendant could not have been convicted of robbery under that information. It was pointed out that the jury could have found the defendant not guilty of murder, even though the jury might have believed he was a party to the robbery.

How can res judicata apply to the robbery charge against Turner, because of his acquittal in the murder case, when the offense charged on that occasion was not robbery — but murder, — and when he could not have even been legally tried for robbery in the same indictment?

From what has been said, it is apparent that we do not agree with appellant’s contentions, and we hold that the trial court did not err in refusing to dismiss the robbery indictment against appellant.

Affirmed.

Fogleman, J., concurs; George Rose Smith, Byrd and Holt, JJ., dissent.

John A. Fogleman, Justice,

concurring. I concur fully in the majority opinion on the question of double jeopardy. I would add that State v. Leibowitz, 22 N. J. 102, 123 A. 2d 526 (1956); Harris v. State, 193 Ga. 109, 17 S. E. 2d 573 (1941); and Duvall v. State, 111 Ohio 657, 146 N. E. 90 (1924), are other cases rejecting the plea of double jeopardy in these circumstances.

Even so, I feel that certain comments on statements contained in the dissenting opinion of Mr. Justice Smith are appropriate. I cannot agree with an apparently essential premise of that opinion. Acquittal of the murder cannot, in my opinion, support the argument that the jury might have found that Turner caused Yates’ death without felonious intent and without being engaged in the crime of robbery at the time. In that event the jury would have found Turner guilty of involuntary manslaughter, a degree of homicide which requires no criminal intent or design. Ringer v. State, 74 Ark. 262, 85 S. W. 410, See Ark. Stat. Ann. § 43-2150 (Repl. 1964); Arnold v. State, 179 Ark. 1066, 20 S. W. 2d 189; Allen v. State, 37 Ark. 433.

I do not agree that fundamental fairness requires that the state be barred on the basis of double jeopardy, under existing law. This view would be more acceptable to me if the robbery charged could have been joined with the murder charge or could have been submitted to the jury as an included offense. Fairness is a two-way street. Victims of crime and the people of the state at large are also entitled to fairness in law enforcement. The result reached by the dissent would penalize these interested parties by a decision of a prosecuting attorney to seek to obtain a conviction of the more serious offense where he was not certain that he could produce proof of that offense beyond a reasonable doubt, but felt certain that he could produce the required degree of proof of the less serious offense. An inference may be drawn from the dissenting opinion that the state could properly try the robbery charge first and, if a conviction were had, still prosecute the murder charge, but that an acquittal would bar the murder prosecution. It seems consistent with that theory that conviction of robbery would then be conclusive of that issue in an ensuing murder trial. Be that as it may, it seems much fairer and more logical to me that the state be permitted to try the more serious charge first without the risks involved if double jeopardy were held applicable.

I also agree with the result on the plea of res judicata, the essentials necessary to sustain the plea, and the extent of the bar of the former judgment as stated in the majority opinion. Yet, I respectfully submit that consideration of the plea of res judicata is premature. The question cannot really be determined on the record before us. Furthermore, the prior acquittal of murder is not necessarily res judicata or collateral estoppel on the robbery charge.

In considering the propriety of the circuit court action on appellant’s motion to dismiss, it must be kept in mind that the charge of murder on which appellant was tried was described as having been committed in the perpetration of a robbery or as a wilful, premeditated and deliberated homicide committed with malice aforethought. It is also significant that the only record before us consists of the robbery indictment, the warrant issued thereon, appellant’s motion to dismiss, and a stipulation. There is nothing to show the form or content of the jury verdict or to indicate what evidence was before the jury.

The stipulation adds nothing to the record not hereinabove set out, except statements that the murder charge and the robbery charge arose out of the same set of facts and circumstances and on the same occasion and that the same testimony as was adduced by the state on the former trial will necessarily be introduced in the robbery trial.

While we have previously held that denial of a motion to dismiss upon the grounds of double jeopardy is appealable, the same rule should not apply to pleas of res judicata and collateral estoppel.

In criminal cases, as in civil, an appeal can only be taken from a final order, i. e., one which dismisses the parties from the court, discharges them from the action or concludes their rights to the subject matter in controversy. State v. Langstaff, 231 Ark. 736, 332 S. W. 2d 614. The basis for allowance of appeals from denial of motions to dismiss for failure of the state to bring a defendant to trial before the end of the second term after indictment or upon a plea of double jeopardy is that the absolute right of the defendant to discharge has been denied and no subsequent order or judgment of the courts could place him in the position or give him the rights to which he was entitled at the time of the order denying his motion to dismiss. Jones v. State, 230 Ark. 18, 320 S. W. 2d 645; Ware v. State, 159 Ark. 540, 252 S. W. 934.

The same situation does not apply to a motion to dismiss on the ground of res judicata. Former jeopardy and a failure to provide a speedy trial are bars to prosecution. Jeopardy attaches upon the swearing of a jury to try the case. Jones v. State, supra. Failure to bring one to trial within prescribed time limits entitles him to discharge. Ark. Stat. Ann. §§ 43-1708, 1709 (Repl. 1964). Res judicata and collateral estoppel are defenses. Denial of appellant’s motion would not necessarily be a final determination of this defense. The plea of res judicata cannot be raised by a motion to dismiss unless the facts and nature of the former adjudication appear upon the face of the complaint. It is an affirmative defense. Southern Farmers Association, Inc. v. Wyatt, 234 Ark. 649, 353 S. W. 2d 531. In the cited case an attempt to dispose of the case upon its merits by separating this one issue raised by motion to dismiss was held error. The necessity for this approach to this defense arises from the requirement that before the prior judgment can be held to conclude the matter, it must appear on the face of the record or be shown by extrinsic evidence that the precise question at issue was raised and determined in the former suit. If several distinct matters may have been litigated, upon one or more of which the judgment may have passed, the extrinsic evidence must show that the particular question at issue in the subsequent proceeding was involved and determined. Carrigan v. Carrigan, 218 Ark. 398, 236 S. W. 2d 579.

In Meyer v. Eichenbaum, 202 Ark. 438, 150 S. W. 2d 958, we adopted the following as one of the two main rules of the doctrine of res judicata:

# # ^) Any right, fact, or matter in issue, and directly adjudicated upon, or necessarily involved in, the determination of an action before a competent court in which a judgment or decree is rendered upon the merits is conclusively settled by the judgment therein and cannot again be litigated between the parties and privies whether the claim or demand, purpose, or subject-matter of the two suits is the same or not.”

Although we have not made clear distinctions in our cases, we recognize that there is more than one aspect to appellant’s plea of res judicata. Collateral estoppel has been described as “ ‘that aspect of res judicata concerned with the effect of a final judgment on subsequent litigation of a different cause of action involving some of the same issues determined in the initial action.’ ” People v. Roderman, 34 Misc. 2d 497, 229 N. Y. S. 2d 209 (1962). The most important distinction between collateral estoppel and the parent doctrine is that “ ‘estoppel is limited * * * to the point actually determined’ ” while res judicata extends the binding effect of the prior adjudication to matters litigated or which might have been litigated. People v. Roderman, supra; People v. Cornier, 42 Misc. 2d 963, 249 N. Y. S. 2d 521 (1964). On the record before us, it is really the doctrine of collateral estoppel, not res judicata, that should be considered.

In order to apply the doctrine of collateral estoppel, a court must determine what questions were determined in the prior proceeding. In the present proceeding, if the grounds on which the acquittal was based cannot be definitely determined, the doctrine of collateral estoppel is not applicable. People v. Cornier, supra; People v. Roderman, supra; State v. Hoag, 21 N. J. 496, 122 A. 2d 628 (1956), aff’d 356 U. S. 464, 78 S. Ct. 829, 2 L. Ed. 2d 913 (1958); State v. Leibowitz, 22 N. J. 102, 123 A. 2d 526 (1956); Annot., 9 A. L. R. 3d 203 (1966). Appellant urges that the prior acquittal necessarily determined his innocence of robbery. The record before us does not reflect that this is necessarily true or false. There is nothing to show that the jury did not acquit on some other ground, such as that appellant did not kill the deceased or because of a general insufficiency in the state’s proof on the issue of death; hence collateral estoppel is not a defense available, to the appellant in this case.

It will be seen that in order to sustain a defense of res judicata or collateral estoppel, it must appear that the subsequent action involves subject matter which was, or could have been determined in the prior action, or that the question of fact was decided, or might have been, but was not, presented in the former action, or that the fact or matter in issue was directly adjudicated or necessarily involved in the determination made in the first action. On the record before us neither bar exists. It cannot be said, with any assurance, that the guilt of appellant of robbery was determined in the prior prosecution. It could not have been directly adjudicated, nor could it have been presented. We can only presume that the jury verdict was one of acquittal of murder in the first degree. For example, so far as the record discloses, the jury might have found that the victim did not die as a result of any act connected with a robbery. The verdict of not guilty could not be any indication of the finding of the jury that Turner did or did not participate in the perpetration of a robbery. It might well have believed that he did, but that the victim died from natural causes or from some other cause wholly unrelated to the alleged robbery. It might also have found that death did not ensue within a year and a day, as required by Ark. Stat. Ann. § 41-2210 (Repl. 1964).

If the murder charge had been joined with the robbery charge, or the two charges consolidated for trial, or if the question of appellant’s guilt or innocence of the robbery could have been submitted to the jury separately from the question of guilt of murder, the situation would be different. Permissible joinder of offenses is covered by Ark. Stat. Ann. § 43-1010 (Repl. 1964). It would not permit either joinder or consolidation, the latter being governed by the joinder statute. Bailey v. State, 227 Ark. 889, 302 S. W. 2d 796, cert. denied, 355 U. S. 851, 78 S. Ct. 77, 2 L. Ed. 2d 59 (1957). Our statutes on included offenses would not permit the jury in the first case to have found appellant guilty of robbery. Ark. Stat. Ann. §§ 43-2149, 2150 (Repl. 1964).

The area of my disagreement with Mr. Justice Holt is rather limited. Not only can I not accept his position that the denial of the plea of res judicata was appealable, I do not agree that the issue is res judicata, rather than collateral estoppel or that the record now before us sustains a plea of either defense. I do not agree that State v. Greeley, 30 N. J. Super. 180, 103 A. 2d 639 (1954), or Harris v. State, 193 Ga. 109, 17 S. E. 2d 573 (1941), supports his position.

The case of State v. Greely, supra, is a decision by the Judge of the Law Division of the Hudson County Court granting a motion to dismiss both on the grounds of double jeopardy and res judicata. The weakness of this authority is demonstrated by the action of the Supreme Court of New Jersey in State v. Hoag, 21 N. J. 496, 122 A. 2d 628 (1956), wherein it applied the opinion of the Supreme Court of Washington in State v. Barton, 5 Wash. 2d 234, 105 P. 2d 63 (1940), in which it was held that acquittal of first degree murder alleged to have been committed during the course of a robbery was not res judicata in a subsequent prosecution for the robbery. The New Jersey Supreme Court followed the Hoag decision in State v. Leibowitz, 22 N. J. 102, 123 A. 2d 526 (1956), in denying a plea of double jeopardy and an anticipated defense of collateral estoppel in a case in which there was nothing to show upon which of several questions the previous jury’s verdict turned.

While Harris v. State, supra, is a decision by a court of last resort, that court, after rejecting the double jeopardy theory, held that the judgment of acquittal of murder in the perpetration of the robbery was conclusive only as to those matters which were in fact in issue and actually or necessarily adjudicated. It indicated that the plea of former acquittal could be sustained only by showing that the defendant could not have been guilty of the crime with which he was subsequently charged without also being guilty of that of which he had been acquitted. The opinion makes it quite clear that the single question involved on the former trial was whether the defendant participated in the murder and robbery of the deceased. It was emphasized that this was the sole issue that was tried and determined on the first trial. Upon that record, the court properly held this issue to have been adjudicated. It recognized the perplexing question posed by application of the doctrine of res judicata when it reserved the question whether a conviction of murder would have been conclusive of the guilt of robbery in a subsequent trial. There were two dissents from that court’s holding on the estoppel.

The better solution of the entire problem might lie in laws which permitted the charge of both felony-murder and of the felony involved to be tried simultaneously and submitted to the same jury. Of course, statutory action would be necessary to accomplish this.

George Rose Smith, Justice,

dissenting. The defenses of double jeopardy and res judicata áre to some extent overlapping and might both be applicable in this case. Freedom from double jeopardy, however is a basic constitutional right. For that reason I prefer to emphasize that defense in disagreeing with the majority opinion.

Upon the stipulated facts there is no question about the relationship between the two offenses with which Turner has been charged. He was first accused of having murdered Larry Wayne Yates in the perpetration of robbery. That trial resulted in an acquittal. Turner is now charged with precisely the same act of robbery that was involved in the first case. He pleads the former acquittal as a bar to the present prosecution.

The problem is whether a second trial would put Turner in jeopardy of being convicted for an offense of which he has already been found not guilty. We have no precedent especially close to the point at issue, but it does seem to me that the reasoning adopted in our earlier decisions sustains Turner’s contention in the case at hand.

When the two offenses are so diverse as to have no element in common, of course there is no double jeopardy even though they arise from the same transaction. In State v. Hall, 50 Ark. 28, 6 S. W. 20 (1887), we found that condition to be true of (a) murder and (b) the carrying of a pistol as a weapon. In Campbell v. State, 215 Ark. 785, 223 S. W. 2d 505 (1949), we reached the same conclusion with respect to (a) drunken driving and (b) involuntary manslaughter that occurred during the drunken driving.

The issue becomes closer when the two offenses have some element in common, but each contains a necessary element not involved in the other. That was the situation in Whitted v. State, 187 Ark. 285, 59 S. W. 2d 597 (1933), where the offenses were (a) robbery and (b) burglary in the form of a felonious breaking and entering with intent to rob. We there said that a single act may be an offense against two statutes, if each statute requires proof of an additional fact which the other does not. There we found no double jeopardy, because the accused could have robbed the bank in question without having broken into it or could have broken into it with intent to rob without having consummated that intent. Hence an acquittal upon the charge of robbery did not bar a prosecution for burglary.

Here we have a third, but related, situation. The charge of murder in the perpetration of robbery embraces every element in the crime of robbery, plus the element of a causally-connected homicide. Robbery, on the other hand, contains no additional element not essential to the crime of murder in the perpetration of robbery. What, then, should be the rule in this situation?

Our decision in Sparks v. State, 88 Ark. 520, 114 S. W. 1183 (1908), dealt with an analogous situation, with the vital difference that the two prosecutions were not brought in the same order as in the case at bar. There Sparks first pleaded guilty to a charge of gaming and was subjected to a fine of ten dollars. He was then charged with the offense of gaming with a minor, “based upon the same game for which he had been previously convicted of gaming.” We held that there was no double jeopardy, upon this reasoning: “The first indictment was for gaming. That fact was confessed by the plea of guilty. But the confession of this crime does not constitute the crime of gaming with a minor. There is an added element to the latter offense. To sustain a conviction for it, there must also be proof that one of the players was a minor.”

The Sparks case would be applicable here if the appellant had first pleaded guilty to a charge of robbery. That plea would not have shielded him against a further charge of murder in the perpetration of robbery, for, as we said in Sparks, “There is an added element to the latter offense.” Such a situation does arise when the victim of the robbery dies after the first conviction. See Casenote, 13 Ark. L. Rev. 382 (1959). There is then no double jeopardy.

On the other hand, if Sparks had first been acquitted of gaming, he would have had a valid plea of double jeopardy to the charge of having gamed with a minor in the same transaction. That is, he would already have been acquitted of an essential element in the latter offense. Such a situation was presented in Fox v. State, 50 Ark. 528, 8 S. W. 836 (1888). There we held that an acquittal of robbery was a bar to a charge of false imprisonment in the same transaction, because the offense of simple assault was necessarily included in both charges. “The verdict of not guilty on the trial ... for robbery was an acquittal of all the minor offenses charged in the indictment. It was therefore an acquittal of the simple assault.”

We are now confronted with still a third situation. Turner was first tried upon the more complex charge —that of murder in the perpetration of robbery. He was acquitted. To me the pivotal question is this: What effect should be given to that acquittal? Turner, on the one hand, argues that it should be treated as a finding of not guilty upon the lesser essential offense of robbery. The State, on the other hand, argues that the acquittal may have been due to the prosecution’s failure to prove some fact, such as the death of the alleged victim, that was not an essential element in the crime of robbery. Hence, says the State, a second prosecution should be permissible.

It seems to me that in simple fairness the appellant’s position is the sounder of the two. The plea of double jeopardy is a favored plea, Harp v. State, 59 Ark. 133, 26 S. W. 714 (1894), doubtless because, as we have said, “It is contrary to principles of natural jxastice and humanity, and against the policy of the law to multiply or carve different crimes out of only one criminal act.” Champion v. State, 110 Ark. 44, 160 S. W. 878 (1913).

It is possible, as the State argues, that Turner was acquitted at the first trial because the jury found that no homicide occurred in the course of a robbery that in itself was proved to the jury’s satisfaction. In that case there is nothing unfair in requiring Turner to submit to a second trial, upon the charge of robbery. But it is equally possible, as Turner argues, that he was acquitted because the jury found that he was not engaged in the crime of robbery when he caused Yates’s death without felonious intent. In that case a retrial would unquestionably violate Turner’s constitutional freedom from double jeopardy, for the State would be able to marshal stronger proof of the very offense that it failed to establish to the jury’s satisfaction at the first trial.

It is obviously impossible to answer the question left open by the result of the earlier trial; for it is a question of fact. A second jury cannot be empaneled to hear the same evidence anew and determine upon what basis the first jury arrived at its verdict of not guilty. Yet the situation is wholly of the State’s making. It was the State which chose to prosecute Turner upon the more serious of the two available charges. Turner had absolutely no choice except to defend the charge as best he could. When he prevailed, for a reason that can never be determined in a court of law, he is entitled to invoke the constitutional protection against being tried a second time for the same offense. I would reverse and dismiss.

Conley Byrd, Justice,

dissenting. Article 2, Section 8, our Constitution of 1874, provides: “No person, for the same offense, shall be twice put in jeopardy of life or liberty.”

Our laws defining murder in the first degree and murder in the second degree and the penalty therefor, are contained in chapter 22 of Vol. 4 of Ark. Stat. Ann. (Repl. 1964). Those laws are as follows:

“§ 41-2201. Murder is the unlawful killing of a human being, in the peace of the State, with malice aforethought, either express or implied.
§ 41-2205. All murder which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of wilful, deliberate, malicious and premediated killing, or which shall be committed in the perpetration of or in the attempt to perpetrate, arson, rape, robbery, burglary or larceny, shall be deemed murder in the first degree.
§ 41-2206. All other murder shall be deemed murder in the second degree.
§ 41-2227. Every person convicted of murder in the first degree, or as accessory before the fact to such murder, shall suffer death (by hanging by the neck) [or life imprisonment].
§ 41-2228. Every person convicted of murder in the second degree shall be sentenced to undergo imprisonment in the penitentiary for a period of not less than five [5] years nor more than twenty-one [21] years.

From a review o£ the foregoing statutes and our constitutional provisions, it appears to me that, when the State by information charged appellant with murder in the first degree committed while perpetrating the offense of robbery, appellant was put in jeopardy of losing his life or of being imprisoned for life and that the offense of robbery was charged for the purpose of putting his life or liberty in jeopardy for a period beyond the 21 years maximum provided for murder in the second degree, as murder in the second degree is defined in Ark. Stat. Ann. § 41-2206, supra, It therefore follows that when the State again charges him with the crime of robbery, they have for the second time put his life and/or liberty in jeopardy for the crime of robbery.

The majority view in effect changes the double jeopardy clause to read that no person shall twice be prosecuted for the same offense. However the Constitution provides, “. . . no person, for the same offense, shall be twice put in jeopardy of life or liberty.”

For these reasons I respectfully dissent.

Frank Holt, Justice,

dissenting. In my view the doctrine of res judicata is applicable in the circumstances. I recognize that the refusal of a plea of res judicata, which is an affirmative defense, is said not to be a final and appealable order in our civil cases. However, in criminal cases we have recognized that the refusal of the plea of double jeopardy is a final and appealable order. Jones v. State, 230 Ark. 18, 320 S. W. 2d 645 (1959). The reasoning there applies with equal cogency to the plea of res judifata in criminal cases. Although I do not dispute the rationale of the dissents which focus on double jeopardy, I consider the plea of res judicata to be applicable and more appropriate here.

In the case at bar the defendant was tried and acquitted on a two-pronged murder information: murder in perpetration of robbery, and premeditated murder. By this strategy the State theoretically insulates itself from any attack based upon the plea of res judicata. In other words, the allegation of robbery in this information can never be conclusively determined whether the defendant is adjudged guilty or acquitted. It must be said, however, that the information which accused the appellant of the crime of murder put in issue before a jury the contention that the appellant committed murder in the alleged act of robbery. The allegation of robbery could very well have been a vital and essential ingredient of a fact issue for the jury’s consideration. This was to the State’s advantage since sufficient proof on this issue would have relieved the State of the burden of proof of premeditation or the deliberate intention to kill. Rayburn v. State, 200 Ark. 914, 141 S. W. 2d 532 (1940).

The issue of fact as to the commission of a robbery in the perpetration of the alleged crime of murder was certainly presented to the jury for its consideration. The State voluntarily elected to submit the issue of robbery for the jury’s consideration. This action could result in a benefit only to the State. Although permissible, it was not required.

In view of the stipulation that the present charge of robbery, which was alleged in the murder information of which the appellant was acquitted, “arose out of the same set of facts, circumstances, and on the same occasion,” and that “the same testimony adduced by the State of Arkansas in the murder trial will necessarily need be reintroduced in this robbery charge,” I am of the view that the plea of res judicata must apply regardless of the ultimate inconclusiveness of the alleged issue of robbery. The plea of res judicata was applied in situations less compelling than in the case at bar. Harris v. State, 193 Ga. 109, 17 S. W. 2d 573 (1941), and State v. Greely, 30 N. J. Super. 180, 103 A. 2d 639 (1954).

I respectfully dissent.

      Emphasis supplied.

      Emphasis supplied.

      Emphasis supplied.

      The Idaho statute relative to murder perpetrated while committing a felony, is almost identical with our own.

       2For a discussion of these principles see Annot., 9 A. L. R. 3d 203 (1966).