Lauderdale v. State

• Decision Date: 13 February 1961
• Docket Number: No. 4985,4985
• Citation: 343 S.W.2d 422,233 Ark. 96
• Parties: E. A. LAUDERDALE, Sr., Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 422

343 S.W.2d 422

233 Ark. 96

E. A. LAUDERDALE, Sr., Appellant, v. STATE of Arkansas, Appellee.

No. 4985.

Supreme Court of Arkansas.

Feb. 13, 1961.

Dissenting Opinion Feb. 20, 1961.

Rehearing Denied March 20, 1961.

Howard & McDaniel, Jonesboro, for appellant.

Bruce Bennett, Atty. Gen., by Bill J. Davis, Asst. Atty. Gen., for appellee.

McFADDIN, Justice.

Appellant was charged with injuring property with dynamite--a violation of § 41-4237, Ark.Stats. The information stated: 'The said E. A. Lauderdale, Sr., on or about the 7th day of September A.D. 1959, did unlawfully and feloniously, and willfully damage and injure a building located at 800 Louisiana Street in the City of Little Rock, by means of dynamite, against the peace and dignity of the State of Arkansas.' Although appellant was charged with damaging the school building at Eighth and Louisiana, it was not claimed that he personally set off the dynamite: rather, the claim was, that he was an accessory before the fact with his accomplice, J. D. Sims, who, personally and in keeping with the directions of Lauderdale, set off the charge of dynamite. An accessory before the fact may be tried and convicted as a principal. Section 41-118, Ark.Stats.; Wilkerson v. State, 209 Ark. 138, 189 S.W.2d 800. J. D. Sims confessed to the crime and received sentence and then testified for the State in the trial against Lauderdale.

The trial resulted in a jury verdict of guilty; and from a judgment on the verdict there is this appeal. The transcript contains more than a thousand typewritten pages; the combined abstracts and briefs in this Court contain 537 printed pages; and the motion for new trial contains 55 assignments. We discuss some of these:

I. Change Of Venue. Appellant claimed that because of other dynamitings, because of widespread newspaper, television, and radio publicity, and because the Little Rock Chamber of Commerce offered a reward for the conviction of the dynamiters, it was impossible for him to obtain a fair trial in Pulaski County. The motion for change of venue stated in part: 'Within a matter of less than a week after the commission of the said crimes, public opinion in Pulaski County became firmly fixed against your petitioner, and the minds of the inhabitants of Pulaski County are now so prejudiced against petitioner that a fair and impartial trial cannot be had in Pulaski County, Arkansas, in this matter.'

Both appellant and the State called witnesses in regard to the change of venue; a total of twenty-three testified; and at the conclusion of the hearing the Circuit Court denied the motion. We cannot say that the Trial Court abused its discretion. In Perry [and Coggins] v. State, Ark., 342 S.W.2d 95, there was discussed this matter of the change of venue of two other parties involved in other dynamitings that occurred the same night. In that case, the Trial Court also denied the motion for change of venue and we sustained the ruling: what we said in that opinion on the change of venue matter applies with equal force to the case at bar.

II. Refusal To Allow Interrogation Of Veniremen On Certain Matters. A large number of veniremen were examined before the jury was finally completed. In the course of the voir dire examination the defendant's attorney asked many questions, some relating to membership in the County Club of Little Rock, the Capitol Citizens' Council, the Little Rock Chamber of Commerce, and also membership in churches and other organizations. The defendant undertook to ask the veniremen, 'Are you a segregationist or an integrationist?' The Court refused to allow any venireman to be asked such question; and the correctness of that ruling is the point here at issue. The appellant says that he had a right to ask the veniremen, 'as to whether they believed in integration, the mixing of the races, or segregation'; and appellant cites Bethel v. State, 162 Ark. 76, 257 S.W. 740, 31 A.L.R. 402, wherein we held it was proper on voir dire to ask veniremen if they belonged to the Ku Klux Klan. When relevant and of significance to the case being tried, inquiry should be allowed to be made on voir dire as to membership in an organization. The examination of the prospective juror is for the purpose of obtaining a fair and impartial jury, each member of which has a mind free and clear of all interest, bias, or prejudice that might prevent the finding of a true and just verdict. In 31 Am.Jur. 121 'Jury' § 139, the rationale of the holdings is summarized in this language:

'A wide latitude is allowed counsel in examining jurors on their voir dire. The scope of inquiry is best governed by a wise and liberal discretion on the Court, but the adverse litigant should be given the right to inquire freely about the interest, direct or indirect, of the proposed juror that may affect his final decision. Thus reasonable latitude should be given parties in the examination of jurors to gain knowledge of their mental attitude toward the issues to be tried. * * *'

The same authority then continues:

'However, as a general rule, the examination of jurors on voir dire should be restricted to questions which are pertinent and proper for testing the capacity and competency of the juror * * * and must not go so far beyond the parties and the issues directly involved that it is likely to create a bias, a prejudice, or an unfair attitude toward any litigant.' ¹

To ask a veniremen on voir dire whether he was a segregationist or an integrationist would have no bearing on his fairness as a juror to sit in the trial of a case being tried for dynamiting a building. This is particularly true in this case since the words, 'integrationist' and 'segregationist' are now relative terms, and convey meanings of a scope and degree of intensity of feelings as to be more confusing then helpful in determining the fitness of a juror. To compel the veniremen to answer questions on these points would have been to inject an issue not pertinent to testing the capacity and competency of the jurors and would have tended to create a bias or prejudice that would also have embarrassed the veniremen. The Judge of the Trial Court is vested with wide discretion in determining the extent to which inquiry may be made of veniremen; and, by seeing the trial, can determine first hand--far better than we can on appeal--whether the questions asked are in good faith or are for the purpose of creating bias and prejudice. We cannot say that the Trial Judge abused his discretion in the case at bar.

III. The Juror Smith. The appellant claims that the Trial Court committed error with respect to this juror (a) in preventing appellant from further interrogation of the juror on voir dire, and (b) in refusing to excuse the juror because of the answers he made on voir dire. However, we find no error committed by the Court in either of these matters. Several pages in the transcript contain the voir dire examination of the juror and the Court's rulings. It was not shown that Mr. Smith had discussed the case with any witness; but he did state that he had an opinion in the case. The Court then asked him the following:

'Q. You can and will set this preconceived opinion aside and go in the jury box with an open mind and try this case solely on the law and the evidence developed here and give both sides a fair and impartial trial?

'A. That's correct.'

In response to inquiries by appellant, the juror stated that he would have to hear evidence to feel that his original opinion was erroneous; and again the Court asked the juror:

'Q. You could set that opinion aside and try this case solely on the law and the evidence developed here?

'A. Yes, your Honor.'

The appellant desired to further interrogate the juror as to whether it would take evidence to remove his opinion, but the Court then ruled that the inquiry had been pursued far enough, and that the juror would not be excused for cause. The appellant had exhausted his peremptory challenges at this point.

The situation presented to the Trial Court was similar to the situation in many of our reported cases. In Rowe v. State, 224 Ark. 671, 275 S.W.2d 887, 888, this Court said:

'While it is true that some of the veniremen said that they had formed tentative opinions based upon newspaper reports or what some one had told them, all who were accepted stated that they could and would be guided solely by the testimony, giving to the defendant the benefit of all doubts that the law defines. There was no error in accepting these men. It is no longer practicable in an intelligent society to select jurors from a psychological vacuum or from a stratum where information common to the community as a whole is lacking.'

In Reynolds v. United States, 98 U.S. 145, 25 L.Ed. 244, Chief Justice Waite used this language, which is apropos:

'The reading of the evidence leaves the impression that the juror had some hypothetical opinion about the case, but it falls far short of raising a manifest presumption of partiality. In considering such questions in a reviewing court, we ought not to be unmindful of the fact we have so often observed in our experience, that jurors not unfrequently seek to excuse themselves on the ground of having formed an opinion, when, on examination, it turns out that no real disqualification exists. In such cases the manner of the juror while testifying is oftentimes more indicative of the real character of his opinion than his words. That is seen below, but cannot always be spread upon the record. Care should, therefore, be taken in the reviewing court not to reverse the ruling below upon such a question of fact, except in a clear case.'

In Niven v. State, 190 Ark. 514, 80 S.W.2d 644, 645, Mr. Justice McHaney said:

'Our rule is that a juror is not disqualified in a criminal case where he has a 'fixed' opinion which is based upon hearsay testimony, newspaper reports, or mere rumor, even though it would take evidence to remove such opinion, where h...