Johnson v. State

Decision Date17 July 1972
Docket NumberNo. 5663,5663
Citation252 Ark. 1113,482 S.W.2d 600
PartiesGeorge JOHNSON, Jr., Appellant, v. STATE of Arkansas, Appellee.
CourtArkansas Supreme Court

William F. Sherman, Little Rock, for appellant.

Ray Thornton, Atty. Gen., by James A. Neal, Asst. Atty. Gen., Little Rock, for appellee.

FOGLEMAN, Justice.

Appellant George Johnson was charged with and convicted of murder in the first degree on May 22, 1970. He presents seven points for reversal. Upon consideration of them and the entire record in the case, we find reversible error in the failure of the circuit judge to give a requested instruction.

Appellant was charged by information which, after amendment, read:

Comes Richard B. Adkisson, Prosecuting Attorney within and for Pulaski County, Arkansas, and in the name, by the authority, and on behalf of the State of Arkansas information gives accusing GEORGE JOHNSON, JR. of the crime of MURDER--1ST DEGREE committed as follows, to-wit: The said GEORGE JOHNSON, JR., in the County and State aforesaid, on or about the 22nd day of May, A.D. 1970, did unlawfully, feloniously, cause the death of Vicki Siscoe while in the perpetration of a Burglary, against the peace and dignity of the State of Arkansas.

Mr. and Mrs. W. A. Siscoe and their daughter Vicki 1 arrived home from the Siscoe grocery store on the night of May 22, 1970, at about 10:45 p.m. Mrs. Siscoe drove her vehicle into the driveway, parked it and awaited her daughter and husband, who followed her in a vehicle driven by the husband. He stopped his car and the daughter got out, opened the front door and entered the Siscoe dwelling. Her father heard her screaming inside the house and ran inside, armed with a .38-caliber revolver, where he became aware of the presence of an intruder who threatened to kill him and began firing a weapon. When Siscoe returned the fire, the intruder grabbed Vicki, swung her around as a body shield and a scuffle ensued during which Siscoe fired, or attempted to fire over the intruder's shoulder. Shots were fired by the father and by at least one intruder. In the exchange of gunfire, Vicki Siscoe was struck by a bullet from her father's weapon and another from a .22-caliber weapon obviously fired by the intruder. The state medical examiner testified that, in his professional opinion, Vicki's death was caused by a large caliber bullet of the same type as a .38-caliber slug exhibited to him. Both appellant, who admitted his presence in the house at the time, and W. A. Siscoe were wounded. All three wounded persons were admitted to Baptist Medical Center, where Vicki Siscoe died.

Fingerprints lifted from the .22-caliber pistol were not Johnson's. There was obvious evidence of a forcible entry into the house by the breaking of a window and the removal of a window screen. The ransacking of dresser drawers and the opening of two piggy banks therein were clear indications of larcenous intent of at least one of the intruders. Fingerprints lifted from the windowsill were not Johnson's.

Siscoe, while in a condition of near hysteria, described the intruder he saw to Officer L. G. O'Kelley of the Little Rock police force as a slender black male wearing a mask. The officers who came to the house found the den spattered with blood and in a disorderly condition. Officer Paul Plummer found a trail of blood from the back door and through the backyard. Two .38-caliber bullets were removed from appellant's body at the hospital. One of them was positively identified by ballistics tests as having been fired from W. A. Siscoe's pistol. Bullet holes were found in a corner of the den and on the sidewall of a storage room opposite the den.

Siscoe was unable to describe the clothing of this intruder, but positively identified Johnson as the person with whom he exchanged fire in the house and at whom he fired outside the house, after the intruder left. Officers were unable to serve subpoenae, issued at appellant's instance, on Eddie Jackson, Lacie Gordon or Benny Kelley. George Johnson testified that he went to the Siscoe house with these three and was admitted by Jackson, who had gained entry through a window which he unlocked and raised after he had broken a pane with a pistol. Johnson testified that he had never owned a gun and that he did not have a gun of any kind while at the Siscoe house, but that Jackson did. Johnson saw Vicki Siscoe come into the house and walk toward that portion where he and Jackson were. According to Johnson, he never fired any weapon on that night but Jackson did. Johnson said that he was trying to open the back door, as instructed by Jackson, when he was struck by one bullet. He said he was hit by another as he fled through the backyard. According to Johnson, Jackson was entering a closet when last seen by him.

There is no doubt that if the Siscoe version of the shooting is correct the felony-murder rule would apply and it would be proper to say that Johnson was guilty of either first degree murder or nothing at all. Both of the elder Siscoes identified Johnson as the assailant. But this ignores appellant's version of the case. Under his theory, Johnson might not be guilty of the felony-murder. There is little doubt that Vicki Siscoe's father fired the fatal shot, and Johnson denies that he was a participant in the crime.

We cannot agree that appellant was entitled to a directed verdict on the felony-murder charge. He contends that since neither he nor the person he claimed to have accompanied to the Siscoe house fired the fatal shot, the killing of Vicki Siscoe could not constitute this type of murder. The most analogous case we have is Wilson v. State, 188 Ark. 846, 68 S.W.2d 100. There we agreed with the following principle stated in cases from other jurisdictions:

A attempts to rob B. B, while resisting the attempted robbery, shoots at A and accidentally kills C who is an innocent third party. A cannot be convicted of the murder of C. The reason for the rule in such a case is stated in the Kentucky case as follows: 'In order that one may be guilty of homicide, the act must be done by him actually or constructively, and that cannot be, unless the crime be committed by his own hand, or by the hands of some one acting in concert with him, or in furtherance of a common object or purpose.'

We did not agree, however, that the principle of these cases applied. In Wilson, we recognized and applied the 'shield' or 'breastwork' theory. Under this theory the acts of persons attempting to escape when a police officer discovered them in the process of robbing a bank, taking a teller from his place of safety in the bank at the point of a pistol, and putting him in a place of danger from gunfire by the officer, thinking perhaps that their pursuers would not shoot at them for fear of killing Guthrie, were held to constitute murder. Following the reasoning of two Texas decisions, Taylor v. State, 41 Tex.Cr.R. 564, 55 S.W. 961 (1900), and Keaton v. State, 41 Tex.Cr.R. 621, 57 S.W. 1125 (1900), we held that the fleeing felons must abide the consequences of their unlawful act, even though the result was not intended, and the act of Wilson in forcing the teller to a place known by the robber to be perilous was just as much a cause of the teller's death when he was accidentally shot by the police officer as if Wilson himself had fired the fatal shot. We held that since under Ark.Stat.Ann. § 41--2202 (Repl.1964), the manner of killing is not material this act constituted murder, both at common law and under the statute. We equated this action with homicide committed by exposing a helpless child to inclement weather, forcing a sick and weak sailor to go aloft, causing one to jump from a moving train, directing a blind man in a direction so that he walks off a precipice or striking a deceased blows which caused him to fall from a wagon in which he was riding, so that a wheel of the wagon passed over his body, which, of course, would constitute first degree murder, if the requisite circumstances exist. Examination of the authorities cited in Wilson clearly demonstrates the basis for the distinction we made there.

There is substantial evidence here that the intruder who used Vicki Siscoe as a shield was guilty of murder as defined in §§ 41--2201 and 41--2202. Consequently, there was evidence that the intruder committed murder in the perpetration of or in the attempt to perpetrate burglary. Since both Mr. and Mrs. Siscoe identified Johnson as this intruder, the evidence was sufficient to present a jury question on felony-murder. We might well end our inquiry into the felony-murder charge here, except for the testimony by Johnson that he did not enter the Siscoe house with the intent to commit larceny, and did not know that his companion Jackson had any intention to do anything there except collect some money due him, until Jackson broke a window to gain entrance. There is also testimony by Johnson that he did not in any way participate in the shooting or in the utilization of Vicki Siscoe as a shield, if indeed this happened.

This brings us to a consideration of Johnson's responsibility for the acts of his companion. In doing so, we must say that there was sufficient evidence from which the jury might well have found that Jackson and Johnson entered the Siscoe house in the execution of a conspiracy or common design or plan to do so with the joint object or purpose of committing larceny therein. Each conspirator or participant is responsible for everything done which followed directly and immediately in the execution of the common purpose as one of its probable and natural consequences. Bosnick v. State, 248 Ark. 846, 454 S.W.2d 311. The burglary and larceny, if committed, or the scheme to commit these crimes, if it existed, did not terminate until the perpetrators had left the scene. Clark v. State, 169 Ark. 717, 276 S.W. 849. The acts of the participants in an effort to escape are a part of the continuous scheme or...

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