531 S.W.2d 17 (Ark. 1975), 75--115, Neal v. State
|Docket Nº:||CR 75--115.|
|Citation:||531 S.W.2d 17, 259 Ark. 27|
|Opinion Judge:|| The opinion of the court was delivered by: Frank Holt, Justice.|
|Party Name:||Charles NEAL, Appellant, v. STATE of Arkansas, Appellee.|
|Attorney:|| Laster & Lane, for appellant.  Jim Guy Tucker, Atty. Gen., by: Robert A. Newcomb, Asst. Atty. Gen., for appellee.|
|Case Date:||December 22, 1975|
|Court:||Supreme Court of Arkansas|
Rehearing Denied Jan. 26, 1976.
[Copyrighted Material Omitted]
[259 Ark. 30] Laster & Lane by James F. Lane, Little Rock, for appellant.
Jim Guy Tucker, Atty. Gen. by Robert A. Newcomb, Asst. Atty. Gen., Little Rock, for appellee.
The appellant was convicted by a jury of a capital felony murder in violation of Ark.Stat.Ann. § 41--4702(A) (Supp.1973) and sentenced to death by electrocution. Appellant, aided by another man during the robbery of a service station attendant, bound the victim's hands and feet and then shot him. After leaving the station they returned a short time later and, upon discovering the wounded attendant using the phone, the appellant shot him again. Death resulted from a total of seven pistol wounds.
Appellant first contends for reversal that Ark.Stat.Ann. §§ 41--4711 and 41--4712 (Supp.1973), which permit the jury to consider aggravating and mitigating circumstances, are so vague as to be constitutionally defective. Appellant argues that '(I)n attempting to overcome the discretionary application of the death penalty proscribed in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), the Arkansas legislature specified what matters of mitigation and [259 Ark. 31] aggravation the jury is limited to considering in rendering a decision as to the sentence.' Appellant asserts that these provisions are 'so vague, indefinite and open to reasonably different subjective interpretations and understandings on the part of a jury that these sections are constitutionally defective.' We cannot agree.
§ 41--4711 provides:
Aggravating circumstances shall be limited to the following:
(a) the capital felony was committed by a person under sentence of imprisonment;
(b) the defendant was previously convicted of another capital felony or of a felony involving the use or threat of violence to the person;
(c) the defendant in the commission of the capital felony knowingly created a great risk of death to one (1) or more persons in addition to the victim;
(d) the capital felony was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody;
(e) the capital felony was committed for pecuniary gain; and
(f) the capital felony was committed for the purpose of disreputing or hindering the lawful exercise of any governmental function, political function or the enforcement of laws.
§ 41--4712 provides:
Mitigating circumstances shall be the following:
(a) the capital felony was committed while the defendant was under extreme mental or emotional disturbance;
(b) the capital felony was committed while the defendant was acting under unusual pressures or influences, or under the domination of another person;
(c) the capital felony was committed while the capacity of the defendant to appreciate the wrongfulness of his conduct, or to conform his conduct to the requirements [259 Ark. 32] of law was impaired as a result of mental disease or defect, intoxication or drug abuse;
(d) the youth of the defendant at the time of the commission of the capital felony; or
(e) the capital felony was committed by another person and the defendant was an accomplice or his participation relatively minor.
The thrust of appellant's argument is that 'a criminal statute must be sufficiently specific to inform men of reasonable intelligence of the criminal act or omission.' Therefore, '(I)f men of reasonable intelligence should not be required to speculate as to the act or omission proscribed in a criminal statute, (then) as criminal defendants they must be sentenced by jurors who also are not required to speculate as to the matters of aggravation and mitigation set out in the statute.' The standard of specificity is defined succinctly in United States v. Petrillo, 332 U.S. 1, 67 S.Ct. 1538, 91 L.Ed. 1877 (1946). There the court said:
The Constitution has erected procedural safeguards to protect against conviction for crime except for violation of laws which have clearly defined conduct thereafter to be punished; but the Constitution does not require impossible standards. The language here challenged conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices. The Constitution requires no more.
In the case at bar the jury found in the bifurcated trial that only one...
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