Dillard v. State

• Decision Date: 13 December 1976
• Docket Number: No. 1,No. CR--76--140,CR--76--140,1
• Citation: 260 Ark. 743,543 S.W.2d 925
• Parties: James Edward DILLARD, Appellant, v. STATE of Arkansas, Appellee
• Court: Arkansas Supreme Court

Page 925

543 S.W.2d 925

260 Ark. 743

James Edward DILLARD, Appellant, v. STATE of Arkansas, Appellee.

No. CR--76--140.

Supreme Court of Arkansas, Division No. 1.

Dec. 13, 1976.

Lee Ward, Piggott, for appellant.

Jim Guy Tucker, Atty. Gen., by B. J. McCoy, Asst. Atty. Gen., Little Rock, for appellee.

FOGLEMAN, Justice.

Appellant James E. Dillard was found guilty of the crimes of inciting to riot, attempting to escape from custody of an officer while he was under lawful restraint, and assault and battery upon the person of the officer. He asserts multiple grounds for reversal, divided into classes under three stated points for reversal. We find reversible error in certain of the grounds argued under the point relating to refusal of, and failure to give, certain instructions. We will forego discussion of any of these numerous grounds, except for those which constituted reversible error and those which will likely arise on retrial.

We find reversible error in the trial judge's refusal to give appellant's requested instructions Nos. 6, 7 and 8. Each of these instructions would have advised the jury of the elements of one of the three offenses with which appellant was charged and that it would have to find appellant guilty of each element of that offense, beyond a reasonable doubt, before it could find him guilty of that offense. Appellant objected to the court's failure to give these instructions because the jury had not otherwise been instructed that each of the elements of the offense covered must be proved beyond a reasonable doubt before appellant could be found guilty of that offense.

The jury was only instructed that '(t)he defendant is presumed to be innocent until proven guilty, and if upon the whole case you have a reasonable doubt of the defendant's guilt, you will acquit him' and '(t)he burden of proof, as you have been instructed, is on the State to make out or establish its case to your satisfaction, beyond a reasonable doubt.' Those instructions are correct, as far as they go. Even though the court had defined the elements of each of the offenses, nothing in the instructions structions given could possibly be construed as requiring that each element of each such offense must be proven beyond a reasonable doubt. In this respect the proffered instructions were proper even though it is not necessary that the state prove each fact or circumstance beyond a reasonable doubt, but it is required that the state so prove each material element of each crime charged. State v. Green, 126 Vt. 311, 228 A.2d 792 (1967); Spear v. U.S., 228 F. 485, 143 CCA 67 (8 Cir. 1915), cert. den. 246 U.S. 667, 38 S.Ct. 335, 62 L.Ed. 929; State v. Ottley, 147 Iowa 329, 126 N.W. 334 (1910); State v. Kimes, 145 Iowa 346, 124 N.W. 164 (1910). See also, Heard v. U.S., 228 F. 503, 143 CCA 85 (8 Cir. 1915); State v. Long, 30 Del. 397, 108 A. 36 (1919). Cf. Ferrell v. State, 165 Ark. 541, 265 S.W. 62. The failure to give instructions similar to those requested by appellant is reversible error unless the matter is fully covered by other instructions. McAfee v. U.S.,70 App.D.C. 143, 105 F.2d 21 (1939). Instructions going no further than those given here have been held deficient when an objection is based upon the failure of the court to instruct the jury that it must find the appellant guilty of each element of the offense charged beyond a reasonable doubt or that the state bears the burden of proving each element of the offense beyond a reasonable doubt. See Heard v. U.S., supra; Spear v. U.S., supra; State v. Ottley,supra; State v. Kimes, supra. The Court of Appeals of the District of Columbia spoke lucidly upon the matter in McAfee. Speaking through Justice Stephens, it said:

* * * The purpose of such an instruction is to impress upon the mind of the triers of fact the proposition that guilt depends upon demonstration beyond a reasonable doubt of the existence of each of the several elements which, as a matter of law, constitute the crime charged, rather than upon some vague general notion that the defendant did some sort of wrongful act. Such an instruction is to be contrasted with those which tell a jury that they may not convict if they have a reasonable doubt 'upon the whole evidence' or that they may convict if 'upon the whole evidence' they are convinced beyond a reasonable doubt of guilt. The charge actually given to the jury in the instant case belongs to the latter type of instructions. * * *

Apparently, we have not reversed any judgment on account of failure of the trial court to give such an instruction but we have tacitly recognized the necessity for so instructing the jury. In Humphrey v. State, 168 Ark. 163, 269 S.W. 988, we held that the court correctly charged the jury that:

If any fact in the case or any element necessary to constitute the crime has been established to your satisfaction beyond a reasonable doubt by either direct or circumstantial evidence, or by both kinds, then such fact or element has been sufficiently proved, and if the jury believe beyond a reasonable doubt from either or both direct and circumstantial evidence that the defendant is guilty, it is your duty to so find.

In Jones v. State, 159 Ark. 215, 251 S.W. 690, we held that it was reversible error to refuse a request to charge the jury that the intent to kill must be proven beyond a reasonable doubt when the charge is assault with intent to kill.

Since no instruction given, or any combination of them, adequately stated the state's burden or the findings requisite to a conviction, the judgment must be reversed.

Appellant complains of the court's failure to give other instructions. By his requested instruction No. 1, he sought to have the jury instructed that, if he did not know or have reasonable grounds to believe that Galen Hutcheson (who arrested appellant) was, at the time of apprehending appellant, a duly authorized law officer, appellant violated no law in using whatever force was necessary to break away from him and run into the nearby woods. The instruction requested was certainly not in keeping with the spirit of our Per Curiam order entered April 19, 1965, adopting Arkansas Model Jury Instructions, in that it is not wholly impartial and free from argument. Certainly, it would be desirable to eliminate references to running into the nearby woods. The instruction as to the permissible amount of force probably should have been qualified. Even though one has the right to resist an illegal arrest, the force that may be used is limited to that reasonably necessary. Jett v. State, 151 Ark. 439, 236 S.W. 621. See also, BAXTER V. STATE, 225 ARK. 239, 281 S.W.2D 931. ¹ The circuit judge refused to give it on the basis that the facts did not justify doing so. We find no error, because of appellant's own testimony. He 'presumed' that Hutcheson was an officer at the time Hutcheson got out of an automobile occupied by the Sheriff of Clay County, whom appellant knew, and Deputy Sheriff Stow, whom appellant recognized, and called appellant over to the automobile where the arrest was made. This testimony certainly eliminated any question of fact as to appellant's having reasonable grounds to believe that Hutcheson was an officer of the law.

Appellant also requested an alternative instruction that an officer making an arrest must inform the person about to be arrested of the intention to arrest him and the offense for which he is being arrested. Appellant included in his requested instruction a prefatory statement that he had undertaken to show that, at the time of the arrest, he did not know that Hutcheson was a law officer and that Hutcheson did not tell appellant he was being arrested. Appellant's objection to the court's failure to give this instruction is based solely on the ground that Hutcheson's official capacity was not made known to appellant. Because of the introductory language and appellant's own testimony, it was not error to refuse the instruction over the objection made by appellant.

Dillard testified that Hutcheson never advised him that he was under arrest. There is contradictory testimony by Hutcheson that he did in fact advise appellant that he was under arrest for inciting a riot. Nevertheless, there was a disputed question of fact on this point. In Minton v. State, 198 Ark. 875, 131 S.W.2d 948, we said:

The law of this subject is correctly stated in the chapter on Arrest in 6 C.J.S., p. 602 § 6 (now 6A C.J.S. § 48), as follows:

'It is, ordinarily, incumbent on an officer, seeking to make an arrest without a warrant, to inform the accused of his authority or official character, of his intention to arrest him, and of the offense for which he is being arrested, otherwise the person whose arrest is sought is under no duty to submit; although circumstances surrounding the arrest may, in a proper case, dispense with one or more of these requirements. In accordance with this exception to the rule, an officer need not inform a person who is committing an offense in his presence, or who is pursued immediately after the offense, of the cause of his arrest; and, where an officer is met with a demonstration of force at the outset, he need not go through the formality of informing the person of his intention to arrest him or of the cause of his arrest.'

It is true that the statute, Ark.Stat.Ann. § 43--416 (Repl.1964), does not apply when the offense is committed in the presence of the officer. Minton v. State, supra; Bookout v. Hanshaw, 235 Ark. 924, 363 S.W.2d 125. But, in this case the principal issue was whether the appellant had committed any offense. In such a case, a proper instruction would qualify the recitation of the statute by stating when it is, and when it is not, applicable. We do not agree with the trial court's holding that merely instructing the jury that it must find that appellant was lawfully taken into custody covered the requests made by appellant, because neither a lawful arrest nor lawful custody...