Bosnick v. State, 5486

• Decision Date: 01 June 1970
• Docket Number: No. 5486,5486
• Parties: Franklin BOSNICK, Appellant, v. STATE of Arkansas, Appellee (two cases).
• Court: Arkansas Supreme Court

Page 311

454 S.W.2d 311

248 Ark. 846

Franklin BOSNICK, Appellant, v. STATE of Arkansas, Appellee (two cases).

No. 5486.

Supreme Court of Arkansas.

June 1, 1970.

As Amended June 15, 1970.

Harold Sharpe, Forrest City, for appellant.

Joe Purcell, Atty. Gen., Mike Wilson, Asst. Atty. Gen., Little Rock, for appellee.

GEORGE ROSE SMITH, Justice.

The appellant, Franklin Bosnick, age 40, was charged with first degree murder jointly with his son, Franklin Bosnick, Jr., 17, Danny Wayne McKay, 18, and Dewey Ray Murray, 24. The homicide occurred in the perpetration of robbery, but the information made no mention of that fact, charging the defendants instead with a willful, deliberate, malicious, and premeditated killing. Ark.Stat.Ann. § 41--2205 (Repl.1964). The appellant, tried separately, was found guilty and sentenced to death. The most serious question in the case is whether the trial court was right in refusing to instruct the jury on the lesser degrees of homicide.

We state only the essential facts pertinent to the appeal. On December 31, 1968, the elder Bosnick and the three youths decided to rob a combined filling station, grocery store, and residence owned and occupied by Mr. and Mrs. James Gatteys, near the community of Shannondale. All four men were armed, their weapons comprising a rifle, two shotguns, and a pistol. The older man drove the group to the scene and waited outside in the car while the three younger men, their faces masked with silk stockings, entered the store to accomplish the robbery. It was then about dark.

The Gatteyses and a young clerk were in the store. Franklin, Jr., took the lead in holding up the three occupants of the premises and taking what money there was available. While the robbery was in progress a neighbor, Jimmy Vance, approached the store, looked in, and surmised what was happening. Vance went back to his truck and used a two-way farm radio to summon the police.

The deceased, Jessie J. Morgan, a city policeman at Hughes, was the first officer to arrive. Morgan knocked at the door twice, saying both times: 'Mrs. Gatteys, it's the law.' Young Bosnick directed Mrs. Gatteys to open the door while he stood behind her. Bosnick fired once over the woman's shoulder and then ran outside and continued to fire until his weapon was empty. He then ran back indoors, and Murray in turn went outside with the rifle and put additional shots into Officer Morgan's chest, who must have died almost instantly. It was later found that one cartridge in the officer's pistol had been fired.

While the youths were completing the robbery a voice from the outside--presumably the appellant's--said: 'Come on; let's go.' The three youths, having taken money and two additional guns from the Gatteyses, then left the premises and joined the older Bosnick in the waiting car. As they were about to drive away, two state policemen arrived, disarmed the robbers, and took all four into custody without further gunfire or violence.

As we have indicated, the trial court refused the defendant's request that the jury be instructed on the lower degrees of homicide. Had the information charged the defendants with murder in the perpetration of robbery, then the court's action might have been correct (leaving aside for the moment the fact that the elder Bosnick merely waited outside), because proof of a homicide in the course of a robbery or other felony specified in the statute relieves the State of the burden of proving premeditation or the specific intent to take life. Hence, under such an indictment, the proof may justify the court in refusing to submit the lesser degrees of homicide. Davis v. State, 182 Ark. 123, 30 S.W.2d 830 (1930); Washington v. State, 181 Ark. 1011, 28 S.W.2d 1055 (1930); Clark v. State, 169 Ark. 717, 276 S.W. 849 (1925).

In the case at bar, however, Bosnick was not charged with murder in the perpetration of robbery. It would therefore have been error for the court to submit that charge only, with no reference to deliberation or premeditation. See our opinion on rehearing in Rayburn v. State, 69 Ark. 177, 63 S.W. 356 (1901); also House v. State, 192 Ark. 476, 92 S.W.2d 868 (1936).

Nor, in this case, do we think that a different view of the matter is called for by Initiated Act 3 of 1936. That act permits the indictment or information simply to charge that 'John Doe, on January 1, 1936, * * * did murder Richard Roe.' Ark.Stat.Ann. § 43--1007 (Repl.1964). If the defendant is not satisfied with such an abbreviated charge he may request a bill of particulars. § 43--1006. In response to that request the State would presumably be required to amplify the indictment or information by charging premeditated murder, or murder in the perpetration of a specified felony, or both.

Here, however, Bosnick had no reason to request a bill of particulars, because the State elected from the outset to charge him with premeditated murder rather than with felony murder. The initiated act was intended to abolish technicalities in the wording of criminal charges, but it certainly was not intended to enable the State to charge one 'class of murder' (the phrase used in the Rayburn case, supra), and then prove a different class of murder. Hence, as far as the initiated act is concerned, we treat this case just as if the State had elected, in response to a request for a bill of particulars, to charge premeditated murder rather than murder in the perpetration of robbery.

With respect to the need for instructions on the lower degrees of homicide, Bosnick's comparatively passive participation in the crime raises added problems. First, we have pointed out that when a group plans an armed robbery, 'each one of the party would be responsible for every thing done which followed directly and immediately in the execution of the common purpose as one of its probable and natural consequences.' Clark v. State, supra. But whether the homicide was a probable and natural consequence of the common plan would ordinarily be a question for the jury.

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

In Texas, for example, at a time when the distinction between principals and accessories had been, as in Arkansas, modified to some extent, the court had this to say:

Under out statute there is no such division of principals, but all are principals who are present and encourage in the act; including both the one actually performing the act, and others who may be present aiding in its performance. * * * The contention of appellant that a principal of the second degree, or one who, under our statute, did not actually commit the offense himself, but who was present, and, knowing the unlawful intent, etc., aided the person who did commit it, can only be convicted of the same degree as the actual doer, is not a sound one. If he enters into the commission of the offense with the same intent and purpose, then his offense will be of the same degree as the actual doer, but he may have a different criminal intent from the one who perpetrates or does the act; and in such case he will be guilty according to the intent with which he may have performed his part of the act. (Citing authority.) We therefore hold that it is competent, under an indictment charging all as principals in murder, to convict one of such principals of one degree of felonious homicide, and another of some other degree of felonious homicide, according to the intent with which such principals may have performed the particular act attributed to and proved against them. (Red v. State, 39 Tex.Crim.R. 667, 47 S.W. 1003 (1898).)

A similar thought was expressed by the New Mexico court in State v. Lord, 42 N.M. 638, 84 P.2d 80 (1938):

The question seems to be, whether under this statute, every person connected with the murder, whether principal or aider and abettor, must necessarily have been guilty of the same degree of murder. The statute does not say so. For instance, their participation in crime might have lacked the essential element of premeditation and deliberation that must exist before a homicide is murder in the first degree; whereas the principal may have long prepared himself to commit the murder and had deliberated over the matter sufficiently to make the crime murder in the first degree.

Other authorities to the same effect include State v. Absence, 4 Porter (Ala.) 397 (1837); McCoy v. State, 40 Fla. 494, 24 So. 485 (1898); Perkins, Criminal Law, p. 586 (1957). The opposite view was taken, by a divided court, in State v. Shon, 47 Haw. 158, 385 P.2d 830 (1963).

In this case the appellant waited outside the Gatteys store while the three younger men consummated the robbery that led to Officer Morgan's death. The jury might or might not have considered this defendant to have been equally as culpable as one or more of the others. We think the issue should have been submitted to the jury by instructions defining the lesser degrees of homicide. For this reason the judgment must be reversed. (We need not and do not decide--the point not being before us--whether the lesser degrees of homicide should be submitted to the jury with respect to a passive conspirator such as the appellant when the information charges a homicide in the perpetration of another felony.)

The appellant's remaining arguments do not require an extended discussion. The trial court was right in allowing the State's witnesses to testify to the declarations made by the three youths during the course of the robbery, such declarations being admissible against all the conspirators....