Boone v. State, 4938

• Decision Date: 14 September 1959
• Docket Number: No. 4938,4938
• Citation: 230 Ark. 821,327 S.W.2d 87
• Parties: Rogers BOONE, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 87

327 S.W.2d 87

230 Ark. 821

Rogers BOONE, Appellant, v. STATE of Arkansas, Appellee.

No. 4938.

Supreme Court of Arkansas.

Sept. 14, 1959.

W. Harold Flowers, Pine Bluff, for appellant.

Bruce Bennett, Atty. Gen., by Thorp Thomas, Asst. Atty. Gen., for appellee.

HOLT, Justice.

On an information charging the crime of murder in the first degree, appellant, Rogers Boone, a Negro, was found guilty of the murder of M. R. Hamm, a white man 76 years of age, and his punishment fixed at death. This appeal followed.

For reversal appellant relies on the following points: '(1) The court erred in overruling appellant's motion to quash the information. (2) The conduct of the trial court in communicating with the jury by entering the jury room without the defendant or his counsel was improper, and constitutes reversible error. (3) The alleged confession of appellant, and amended statements, were illegally admitted into the evidence.'

I

Appellant, in apt time, filed motion to quash the information alleging that Amendment 21 of the Arkansas Constitution violated the provisions of Amendment Fourteen of the Constitution of the United States. This identical question has been settled against appellant's contention by this court in Washington v. State, 213 Ark. 218, 210 S.W.2d 307, 308, wherein we said: '* * * appellant claims that prosecuting him by information is violative of his rights under both the State and Federal Constitutions. Amendment 21 of the State Constitution reads: 'That all offenses heretofore required to be prosecuted by indictment may be prosecuted either by indictment by a grand jury or information filed by the Prosecuting Attorney.'

'This amendment has been upheld by this court against such attack as is here made, in numerous cases, some of which are: Penton v. State, 194 Ark. 503, 109 S.W.2d 131 and Smith v. State, 194 Ark. 1041, 110 S.W.2d 24. The United States Supreme Court has repeatedly held that a State can--if it so desires--provide for a prosecution by information instead of by indictment. * * * Appellant quotes from, and relies on, the dissenting opinion of Mr. Justice Black in Adamson v. People of State of California, 332 U.S. 46, 67 S.Ct. 1672, 91 L.Ed. 1903. But we must follow the majority in that case, rather than the minority. We therefore conclude that the trial court was correct in refusing to quash the information.'

II

Next appellant says that, 'The trial court, in communicating with the jury by entering the jury room without the defendant or his counsel was improper and constitutes reversible error.' We do not agree. The record reflects that while the jury was deliberating on the case, it appeared that some of the jurors were having difficulty in deciding whether appellant should be sentenced to life imprisonment or death and, says appellant, 'Upon being informed of a request for permission to ask the court a question, and upon agreement of counsel for the State and appellant, the court and the reporter went into the jury room', whereupon the following occurred:

"By Mr. Rowland: Judge, you may not be able to answer this question, and I will withdraw it if you can't. There might be one thing that would help here. In a life sentence, do you know approximately the average time served when a man receives a life sentence?

"By the Court: No----

"By Mr. Rowland: That might help.

"By the Court: I can't answer that. In response to that question, gentlemen, I will say this. Do not concern yourselves with that question. If you say life, as far as you are concerned, it is life. If clemency is later shown, it will have to be shown by the executive branch of the government, and not by you, and you should really not consider that phase of it * * *.'

'And there followed in concluding the first appearance before the jury in the jury room:

"By Member of the Jury: The way this started, we were all unanimous on guilty. Now, if we can't arrive at the penalty, is that a hung jury?

"By the Court: Yes, sir, that is a hung jury. The mere fact that it would be a hung jury should not influence any member of this group in what your decision would be. Do not worry about that. I don't mind trying lawsuits; that is my job. If it is a hung jury it would have to be tried again. That doesn't go into the merits of it. You decide those two questions strictly on the law and the evidence, and whatever the answer to that is, you satisfy your own conscience and the court will be satisfied and happy. If you need further information, gentlemen, let me know.'

'And, again the court and reporter returned to the jury room to find that the jury was deliberating on the matter of punishment, and here follows the unusual question:

"By Mr. Gardner: We have taken another vote after quite a bit of discussion, and we are eleven to one. We have finally come to the conclusion that we will be in agreement if we can find out what the maximum penalty would be. Is that possible? Everybody will be in agreement if the law could tell us what the maximum penalty is. Is it life imprisonment, or the second choice with the electric chair? Do you understand what we are trying to get at?

"By the Court: I don't believe----

'By Mr. Rowland: The maximum penalty. There is some doubt in a few--at least one person's mind--which would be worse, life or death.

"By the Court: That is a matter for you to decide.

"By Mr. Gardner: The law doesn't state that.

"By the Court: No, no, sir, the law doesn't say. The law simply says that the penalty shall be life imprisonment in the event of a finding of guilty, or the penalty shall be death in the event of a finding of guilty. It leaves it to the jurors to decide which of those penalties shall be inflicted.'

'And there followed the question:

"By Member of Jury: Judge, if you please, the question is which is the more severe punishment, life imprisonment, or death? That is the question, if you can answer that question.

"By the Court: I can answer you in my own mind. I don't know that the law books, offhand, say. That is a novel question.

"By Member of the Jury: That is what we are faced with.

"By the Court: I wouldn't hesitate to answer it, if I had an opportunity to confer with counsel. Anything that transpires between the jury and the court has to be known by the defendant or his counsel, and let me check that please.'

'And, now we come to the report of the return of the court for the last jury room conference, by agreement of counsel for the State and the defendant, which ended as the point of no return:

"By the Court: After conferring with counsel, the court reporter will read a brief statement which the court prepared with the agreement of counsel in answer to the question propounded a minute ago.

"By the Court Reporter: (Reading) Gentlemen of the Jury, you have asked the court to tell you at this state of your deliberations which is considered in law to be the most severe penalty. Whether it is death by electrocution, or whether it is life imprisonment. Our statutes provide that every person convicted of murder in the first degree shall suffer death or life imprisonment. It is for you, the jury, to say which of these two penalties should be inflicted, the severity of either of those punishments is a matter for each of you to decide to your own satisfaction.

"By the Court: Gentlemen, are there any other questions?

"By Member of the Jury: You didn't help us much.

"By the Court: I am sorry, but I have got to go by the law. Suppose I give you about ten minutes and then I may call on you to report to the court.

"By Member of the Jury: We will stay longer than that, if necessary.

"By the Court: As far as that goes, gentlemen, I will stay until the cock crows in the morning, if you want to. Don't hurry on my account. As long as you feel there is a reasonable chance to come to some conclusion and reach a verdict, I will be right here, and happy to stay with you."

It thus appears undisputed that appellant agreed to the court's entering the jury room, as indicated, and he points to no evidence in the record tending to show that anything was said or done prejudicial to the rights of appellant. Our statute, 43-2139 Ark.Stats. (1947), on this question provides: 'After the jury retires for deliberation, if there is a disagreement between them as to any part of the evidence, or if they desire to be informed on a point of law, they must require the officer to conduct them into court. Upon their being brought into court, the information required must be given in the presence of, or after notice to, the counsel of the parties.' Here the trial judge, after conferring with both counsel for the State and defendant and with their approval, went into the jury room with the court reporter and instructed the jury, as indicated. He then returned to the court room and with the assistance and agreement of both counsel for appellant and counsel for the State, drafted additional instructions, returned to the jury room and read it to them. We are convinced, that on the record here, appellant, by agreeing to the actions of the court, waived his right to challenge such actions unless such acts were shown to be so harmful or prejudicial to his rights as to constitute error and, as indicated, we hold, in the circumstances, that the court did nothing prejudicial. What we said in Aydelotte v. State, 177 Ark. 595, 281 S.W. 369, 372, in a somewhat similar situation, applies with equal force here. There this court said: '* * * The most serious question in this case is whether or not the court erred in telling the foreman of the jury in the hall of the courthouse, apart from his fellows, in answer to a question propounded to the judge by the foreman, that the jury could give less than one year for the lowest degree of homicide according to the instruction twice given to the jury. If this were all the record showed, it would undoubtedly be reversible error, because contrary to Sec. 3192, C. & M. Digest, which...