Henslee v. State, 5627

• Decision Date: 11 October 1971
• Docket Number: No. 5627,5627
• Citation: 251 Ark. 125,471 S.W.2d 352
• Parties: Marvin HENSLEE, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 352

471 S.W.2d 352

251 Ark. 125

Marvin HENSLEE, Appellant, v. STATE of Arkansas, Appellee.

No. 5627.

Supreme Court of Arkansas.

Oct. 11, 1971.

William E. Johnson and James M. Barker, Jr., Hamburg, for appellant.

Ray Thornton, Atty. Gen., Garner L. Taylor, Jr., Asst. Atty. Gen., Little Rock, for appellee.

HARRIS, Chief Justice.

Marvin Henslee, appellant herein, was charged by Information with the crime of arson for allegedly burning lands belonging to Georgia-Pacific Corporation in violation of Ark.Stat.Ann. § 41--508 (Repl.1964). On trial before a jury, he was convicted and fined $50.00. A motion for a new trial was filed, alleging inter alia that the court erred in refusing appellant's motion on voir dire to excuse as jurors all salaried employees and supervisory personnel for Georgia-Pacific Corporation for cause, and in allowing such an employee to serve as a juror and as foreman of the jury at the trial. The motion was denied and appellant was granted an appeal. For reversal, only the one point is asserted, viz, 'The trial court erred in denying appellant's motion to excuse for cause all prospective jurors who were employees of the company alleged to have been injured by the offense charged, and in denying appellant's motion for new trial based in part on said error, which error prevented appellant from receiving a fair and impartial trial'.

The record reflects a stipulation between the prosecuting attorney and defense counsel that Hugo D. Miles, who served as foreman of the jury, was a salaried employee of Georgia-Pacific Corporation in a supervisory capacity at the time of the trial. It is further stipulated that appellant exhausted all of his peremptory challenges in the selection of a jury. The record further reflects that during the voir dire of the jury panel, counsel for appellant moved to exclude all jurors who were salaried employees of Georgia-Pacific and supervisory personnel of that company. The court then stated:

'Any of you who are employees of Georgia Pacific, would that in any way bias or prejudice you if you are taken on this jury in this case? That is the question, would it bias or prejudice you if you are taken?

(No response from jurors)

COURT: I think they are alright.

MR. BARKER: I believe that the record should show that Mr. Gordon Hartrick was excused from jury duty because he is a forester for Georgia Pacific, and that in addition, four supervisory or salaried employees stood up in response to the Judge's question and we would like to save our exceptions to the failure of the Court to exclude those people as jurors.'

The court then excused one other, a Mr. Vesey, but refused to excuse the remainder of the employees. Here, there is a confusing statement in the record. The court stated:

'Let the record show that none of the employees of Georgia Pacific in a supervisory capacity are on the jury of 12. They were placed on the bottom of the list and not taken on the jury.'

Yet, as already pointed out, it was stipulated that Miles, the jury foreman, was a salaried employee of Georgia-Pacific in a supervisory capacity at the time. It will be noted that in the quoted portion of the court's remarks, the question was not asked as to how many members of the panel worked for Georgia-Pacific; rather, the record simply reflects that the question was only whether any who were employees would have any bias or prejudice because of that fact.

We agree that the court committed reversible error by not excusing the employees of Georgia-Pacific since appellant exhausted his peremptory challenges, and Miles served on the jury which tried the case. Apparently, the court was confusing actual bias with...