Collins v. State

Decision Date22 December 1975
Docket NumberNo. CR,CR
PartiesCarl Albert COLLINS, Appellant, v. STATE of Arkansas, Appellee. 75--110.
CourtArkansas Supreme Court

John Barry Baker and Robert R. Estes, Jr., Fayetteville, Harold Hall, Public Defender, Little Rock (amicus curiae atty.), for appellant.

Jim Guy Tucker, Atty. Gen. by Robert Newcomb, Asst. Atty. Gen., Little Rock, Beryl Anthony, Jr., Pros. Atty., El Dorado, Lee A. Munson, Pros. Atty., Little Rock, John Wesley Hall, Jr., and Fred Hart, Jr., Deputy Rpos. Attys., Little Rock (amicus curiae attys.), for appellee.

GEORGE ROSE SMITH, Justice.

The appellant, Carl Albert Collins, was convicted of a capital felony, the murder of John Welch, and was sentenced by the jury to death by electrocution. The principal issue is the validity of Act 438 of 1973, which reinstated the death penalty after the decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). Ark.Stat.Ann., Title 41, Ch. 47 (Supp.1973). We find the statute to be constitutional.

John and Gertrude Welch, an elderly couple who had been married for 54 years, were living at the time of the crime in a rural home in Washington county. Carl Collins, aged 20, had been working for the Welches for a month, helping Mr. Welch build a barn. On the evening of August 12, 1974, as Carl was being given his wages, he evidently learned that Mr. Welch had several twenty-dollar bills in his wallet.

Carl's brother-in-law brought Carl to work early the next morning. At about 9:15 Carl came from the barn to the house to get the morning's ice water, which was ready. Mrs. Welch testified that Carl suddenly attacked her and struck her repeatedly and painfully on the head with some object she could not identify. Mrs. Welch's screams apparently brought her husband to the house. As he entered he said: 'Carl, what is the matter with you?' At that point Mrs. Welch blacked out. When she came to, Carl was running out with a shotgun and a box of shells. He slammed the door behind him and started the Welches' truck.

Welch sustained a mortal shotgun wound. He said: 'Carl shot me and took my billfold. I am not going to make it. Can you make it?' Mrs. Welch answered: 'I don't think so. I am bleeding too much.' At her husband's suggestion Mrs. Welch crawled to the bathroom and tried to stop the flow of blood by resting her head on a bathmat and applying a towel to her head. She lay there for several hours, getting weaker and thinking that she was dying. Whenever she raised her head she would black out completely.

Help finally arrived at about 2:00 p.m., when a passing telephone repairman happened to come to the house. By then Mr. Welch was dead; the court admitted his statements as a dying declaration. Mrs. Welch testified that her husband's wallet was gone, that the money in her purse was taken, and that the telephone was torn from the wall.

Apart from Mrs. Welch's testimony the State's proof of Carl's guilt was conclusive. The Welches' truck was found abandoned in a wooded area in Madison county. Near it were a hacksaw and the sawed-off end of a double-barreled shotgun. On August 13, the day of the murder, a Volkswagen automobile was stolen in Madison county. That night an officer, who did not know of the theft, saw Carl standing by that car in North Little Rock. When the stolen Volkswagen was recovered by the state police one of Carl's fingerprints was on the steering wheel. In the back seat was the rest of the sawed-off shotgun, which was identified as having come from the Welch home and which matched the portion found near the abandoned truck in Madison county.

In Furman v. George, supra, the five-judge majority, in five separate and to some extent conflicting opinions, held that the Georgia and Texas capital punishment statutes were invalid as imposing cruel and unusual punishment. Only two of those five thought that every form of capital punishment is necessarily unconstitutional. The other seven members of the court took the opposite view, which obviously finds support not only in our history but also in the fact that both the Fifth and the Fourteenth Amendments provide that no person shall be deprived of his life without due process of law. Thus the power of the sovereign, both national and state, to take life is recognized by the constitution itself. The fact, as pointed out by the Oklahoma Court of Criminal Appeals, that Congress and at least 32 states have reinstated capital punishment in the wake of Furman effectively rebuts the argument that public opinion with regard to capital punishment has completely changed since the Bill of Rights and the Fourteenth Amendment were adopted. Williams v. State, 242 P.2d 554 (Okl.Cr.App., 1975).

The essence of the majority view in the Furman case seems to be that capital punishment is constitutionally forbidden whenever the system allows a jury to impose the death penalty in one case and, with no disclosed reason, elect not to impose it in another apparently similar case. Except for that generalization the Furman opinions supply little guidance for the lawmakers or for the courts.

The several states have sought to meet the issue in various ways. A number of them, either by legislative or by judicial decision, have concluded that a mandatory death penalty for certain offenses is a permissible form of capital punishment. State v. Sheppard, 331 A.2d 142 (Del., 1974); State v. Selman, 300 So.2d 467 (La., 1974); State v. Fowler, 285 N.C. 90, 203 S.E.2d 803 (1974), cert. granted, 419 U.S. 963, 95 S.Ct. 223, 42 L.Ed.2d 177 (1974); Williams v. State, supra (Okl.); Jefferson v. Commonwealth, 214 Va. 747, 204 S.E.2d 258 (1974).

Other states, including Arkansas, have taken what seems to us to be a reasonable view not precluded by Furman. That view is that all serious felonies of the same kind, such as murder, are not identical either as to the gravity of the offense or as to the moral culpability of the offender. Statutes defining non-capital offenses customarily allow the jury some discretion in the assessment of punishment, such as a sentence to imprisonment ranging from one to twenty-one years. We do not understand Furman to prohibit an exercise of discretion in the imposition or non-imposition of capital punishment, if the choice is made reasonably.

Act 438 requires that the jury first determine whether the defendant is guilty of a capital felony. If there is a finding of guilt the jury then hears evidence of aggravating or mitigating circumstances, which are enumerated in the act. (All those circumstances are set forth and discussed in Neal v. State, Ark., 531 S.W.2d 17 also decided today.) The jury then retires again and decides whether the punishment is to be death or life imprisonment without parole. The jury must make a written finding with respect to the various aggravating and mitigating circumstances. Hence the basis for the verdict is known and can be compared with the punishment imposed in other casese. That general approach to the problem has been upheld in other states. State v. Dixon, 283 So.2d 1 (Fla., 1973); Coley v. State, 231 Ga. 829, 204 S.E.2d 612 (1974); Jurek v. State, 522 S.W.2d 934 (Tex.Cr.App., 1975). We agree with their reasoning.

In the case at bar the jury found three aggravating circumstances: (1) That the defendant was previously convicted of another capital felony or of a felony (in this instance, armed robbery) involving the use or threat of violence to the person; (2) that the defendant in the commission of the capital felony knowingly created a great risk of death to one or more persons in addition to the victim; and (3) that the capital felony was committed for pecuniary gain....

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19 cases
  • Ruiz v. State, CR
    • United States
    • Supreme Court of Arkansas
    • 18 Julio 1983
    ...Supreme Court has examined it twice, and we have reviewed it once pursuant to a petition for post-conviction relief. Collins v. State, 259 Ark. 8, 531 S.W.2d 13 (1975), vacated and rem'd, Collins v. Arkansas 429 U.S. 808, 97 S.Ct. 44, 50 L.Ed.2d 69 (1976), aff'd on remand, 261 Ark. 195, 548......
  • State v. Ramseur
    • United States
    • United States State Supreme Court (New Jersey)
    • 5 Marzo 1987
    ...opens and closes in a capital trial; State has the burden of proving aggravating factors beyond a reasonable doubt); Collins v. State, 259 Ark. 8, 531 S.W.2d 13, 17 (1975) (because State must prove that aggravating factors justify death beyond a reasonable doubt, State has right to open and......
  • Grigsby v. Mabry
    • United States
    • United States District Courts. 8th Circuit. United States State District Court of Eastern District of Arkansas
    • 5 Agosto 1983
    ......Mr. McCree was convicted in Ouachita County, Arkansas, in 1978. .         After Mr. Grigsby's conviction, the State waived the death penalty, and he was sentenced to life in prison without parole. After Mr. Hulsey's conviction, a penalty trial was held in front of ... Collins v. State, 259 Ark. 8, 12-13, 531 S.W.2d 13, 15 (1975). It appears that when the Arkansas Circuit Court tried the Maxwell case in 1962 that the ......
  • Collins v. State, CR75-110
    • United States
    • Supreme Court of Arkansas
    • 7 Marzo 1977
    ...under Act 438 of 1973 (Ark.Stat.Ann., Title 41, Chap. 47, Supp.1973) was affirmed by this court on December 22, 1975. See Collins v. State, 259 Ark. 9, 531 S.W.2d 13. Thereafter, petition for writ of certiorari for review of our judgment affirming the judgment of the Circuit Court of Washin......
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