Jones v. State

• Decision Date: 13 April 1942
• Docket Number: 4251
• Citation: Jones v. State, 161 S.W.2d 173, 204 Ark. 61 (Ark. 1942)
• Parties: JONES v. STATE
• Court: Arkansas Supreme Court

161 S.W.2d 173

204 Ark. 61

JONES v. STATE

4251

Supreme Court of Arkansas

April 13, 1942

Appeal from Phillips Circuit Court; E. M. Pipkin, Judge; reversed.

Judgment reversed, and cause remanded.

Peter A. Deisch, for appellant.

Jack Holt, Attorney General, and Jno. P. Streepey, Assistant Attorney General, for appellee.

SMITH J. GRIFFIN SMITH, C. J., dissenting. Mr. Justice HUMPHREYS joins in this dissent.

OPINION

SMITH, J.

Appellant was tried under an indictment which charged that with malice aforethought and after deliberation and premeditation, he had shot and killed one George Miller. The jury returned the following verdict: "We, the jury, find the defendant, A. T. Jones, guilty as charged in the indictment and fix his punishment at death in the electric chair." Upon this verdict appellant was sentenced to death, and from that judgment is this appeal.

For the reversal of this judgment it is strongly urged that the court erred in refusing to give appellant's counsel a reasonable opportunity to study and analyze the report made by the officials of the State Hospital for Nervous Diseases upon the question of appellant's sanity. As that time has now been afforded it will be unnecessary to decide that question; but as the report will, no doubt or very probably, be used at the retrial of the cause we will discuss the objections made to it.

There was passed, on December 17, 1838, which was shortly after the admission of this state into the Union, an act, which has since been unchanged and which now appears as § 4041, Pope's Digest, reading as follows: "The jury shall, in all cases of murder, on conviction of the accused, find by their verdict whether he be guilty of murder in the first or second degree; but if the accused confess his guilt, the court shall impanel a jury and examine testimony, and the degree of crime shall be found by the jury."

This act has been applied in many cases, four of which appear in the 26th Arkansas Report: Thompson v. State, 26 Ark. 323; Allen v. State, 26 Ark. 333; Trammell v. State, 26 Ark. 534; Neville v. State, 26 Ark. 614.

It was held in all these cases, and in all subsequent cases which have cited the section quoted, that its provisions are mandatory, and that the death sentence may not be imposed upon one convicted of murder unless the jury found that the accused was guilty of murder in the first degree. In addition to the cases above cited the following are to the same effect: Simpson v. State, 56 Ark. 8, 19 S.W. 99; Porter v. State, 57 Ark. 267, 21 S.W. 467; Carpenter v. State, 58 Ark. 233, 24 S.W. 247; Carpenter v. State, 62 Ark. 286, 36 S.W. 900; Lancaster v. State, 71 Ark. 100, 71 S.W. 251; Clark v. State, 169 Ark. 717, 276 S.W. 849; Hembree v. State, 68 Ark. 621, 58 S.W. 350.

In the case last cited, the Hembree case, this question, and no other, was discussed, and the question was regarded as so definitely settled that the case is not reported in the state reports, and appears only in the Southwestern Reporter.

Thus the law stood until the rendition of the opinion in the case of Bettis v. State, 164 Ark. 17, 261 S.W. 46, in which case it was said: "Here the jury in the Ruck case did not expressly name the degree of murder in its verdict of which it found Ruck guilty, but it found him guilty and fixed his punishment at death, thus showing that they found and intended to find him guilty of murder in the first degree, for murder in the second degree is not punished by death."

The capital sentence imposed in that case was affirmed; but the opinion makes no reference to any of the earlier cases above cited. The opinion does recite that there was no bill of exceptions in the case, and for that reason as the opinion states the presumption was indulged that the jury had been properly instructed and the verdict returned no doubt conformed to the instructions of the court as to the form of verdict to be returned in the event that the defendant was found guilty of murder in the first degree.

Such instruction and direction as to the form of the verdict was given in the instant case. The charge as to the form of the verdict was as follows: "If, from all the evidence in the case, you find the defendant guilty of murder in the first degree, the form of your verdict should be: 'We, the jury, find the defendant, A. T. Jones, guilty of murder in the first degree, as charged in the indictment, and fix his punishment at death in the electric chair.' Or, if you exercise the option that is conferred by the law on you, you may make the penalty life imprisonment in the state penitentiary."

Notwithstanding this specific direction as to the form of verdict to be used in the event the defendant was found guilty of murder in the first degree, the jury did not find the degree of the homicide.

If it be said that the imposition of the death penalty shows what was intended, it may be answered that a capital sentence may not be imposed by intendment. The mandatory provision of the statute is that to impose that sentence there must be a finding that the defendant was guilty of murder in the first degree. However technical this may appear, it is nevertheless the requirement of the law. Human life is so tenderly regarded by the law that it may not be taken upon a conviction under an indictment charging the crime of murder unless, by the jury's verdict, the crime was found to be murder in the first degree.

The testimony shows, although the indictment does not allege, that the homicide was committed in the attempt to commit the crime of robbery, and the statute provides that a homicide so committed shall be murder in the first degree. But that statute (§ 2969, Pope's Dig.) does not make the provisions of § 4041, Pope's Digest, any the less mandatory.

Subsequent to the opinion in the Bettis case, supra, the opinion in the case of Wells v. State, 193 Ark. 1092, 104 S.W.2d 451, was delivered. In that case the accused was indicted for murder in the first degree, alleged to have been committed by the administration of poison, and the accused entered a plea of guilty to the crime charged; notwithstanding that plea a jury was impaneled to find the degree of the homicide, as required by § 4041, Pope's Digest.

The court charged the jury in that case that "The defendant in this case has entered his plea of guilty to the charge against him in the indictment; that is, of murder in the first degree. The law provides in such cases that the jury shall be empaneled to assess his punishment." In holding this instruction error it was said: "While it is true that appellant was indicted for murder in the first degree by poisoning which, under the statute, is made murder in the first degree, § 2343, Crawford & Moses' Digest, still the instruction above set out was error under said § 3205, above quoted (4041, Pope's Digest), and the verdict of the jury was bad in that it failed to find the degree of the crime. By § 3205, 'But if the accused confess his guilt, the court shall empanel a jury and examine testimony, and the degree of crime shall be found by such jury,' the court's instruction would not leave it to the jury to find the degree of the crime. After telling the jury that the defendant had entered his plea of guilty to murder in the first degree, the court told the jury that it was 'empaneled to assess the punishment.' And again that the only question for them to determine was 'that of the punishment to be imposed.' And again he told the jury that it was their 'duty now to retire and fix the punishment.' The statute provides that 'the degree of crime shall be found by such jury,' not merely to fix the punishment or assess the punishment. The instructions in effect told the jury that the defendant was guilty of murder in the first degree and that they could fix his punishment either at death by electrocution or life imprisonment. This was error. The verdict of the jury was defective in that it failed to find the degree of the crime."

That opinion cited a number of cases hereinabove cited, and quoted from the case of Lancaster v. State, supra, as follows: "'This statute was no doubt overlooked by the circuit judge, for under it this court has several times decided that a verdict upon an indictment for murder which does not find the degree of murder is so defective that no judgment can be entered upon it.'"

In the case of Porter v. State, 57 Ark. 267, 21 S.W. 467, Chief Justice COCKRILL said: "The object of the statute was to make sure that the accused should not be subjected to capital punishment unless the jury specially find that he is guilty of the first degree of murder."

The opinion in the case of Fagg v. State, 50 Ark. 506, 8 S.W. 829, was written by the same learned judge. In that case the defendant was indicted and tried for murder and the jury returned the following verdict: "We, the jury, find the defendant guilty of manslaughter, but cannot agree upon the punishment." Upon this verdict the court pronounced sentence for voluntary manslaughter, and that action was assigned as error, for the reason that the verdict did not declare whether the defendant had been found guilty of voluntary manslaughter or involuntary manslaughter. In affirming that action it was said that there was not a scintilla of evidence that the appellant, if guilty at all, was guilty of involuntary manslaughter. Indeed, the contention of the defendant was that the killing was either murder in the first degree or justifiable homicide, and that the jury could not legally return a verdict of manslaughter. But it was said that the accused had acquiesced in that part of the charge at a time when it seemed favorable to him, and that he could not be heard to complain now. No instruction on the question of...