Moore v. State, 4891

• Citation: 315 S.W.2d 907,229 Ark. 335
• Decision Date: 01 July 1958
• Docket Number: No. 4891,4891
• Parties: James M. MOORE, Appellant, v. STATE of Arkansas, Appellee.
• Court: Supreme Court of Arkansas

Page 907

315 S.W.2d 907

229 Ark. 335

James M. MOORE, Appellant, v. STATE of Arkansas, Appellee.

No. 4891.

Supreme Court of Arkansas.

July 1, 1958.

Rehearing Denied Sept. 29, 1958.

W. Harold Flowers, Pine Bluff, for appellant.

Bruce Bennett, Atty. Gen., and Thorp Thomas, Asst. Atty. Gen., for appellee.

McFADDIN, Justice.

This is a death sentence case. In Moore v. State, 227 Ark. 544, 299 S.W.2d 838 the present appellant and three others had been convicted for the murder of M. R. Hamm. We reversed the convictions for the reasons stated in the majority opinion in that case. The facts surrounding the killing of Mr. Hamm and the appellant's alleged participation are stated in our opinion in the first appeal; so we do not again recite them.

On remand, James Moore (present appellant) obtained a severance, made no claim for change of venue, and upon trial was again convicted and sentenced to death. This appeal ensued; and, being a capital case, we have reviewed every objection in the record. See § 43-2723 Ark.Stats. We group the objections and assignments ¹ in convenient topic headings:

I. Appellant's Motion To Quash The Information. Appellant was tried on an information filed by the Prosecuting Attorney instead of an indictment returned by a Grand Jury; and he says:

'Again is presented to the Court the contention that Amendment No. 21 to the Constitution of the State of Arkansas violates those liberties provided for in the Constitution of the United States of America. The more recent interpretations of the due process clause of the Federal Constitution activates interest in the question of whether or not a State may, if it so desires, provide for prosecution by Information rather than Indictment.'

The contention here made has been rejected in many of our cases. In Washington v. State, 213 Ark. 218, 210 S.W.2d 307, 308, we said:

'Appellant was tried on an information filed by the prosecuting attorney, rather than on an indictment returned by a grand jury; and appellant claims that prosecuting him by information is violative of his rights under both the State and Federal Constitutions. Amendment 21 of the State Constitution reads: 'That all offenses heretofore required to be prosecuted by indictment may be prosecuted either by indictment by a grand jury or information filed by the Prosecuting Attorney.' This amendment has been upheld by this court against such attack as is here made, in numerous cases, some of which are: Penton v. State, 194 Ark. 503, 109 S.W.2d 131 and Smith v. State, 194 Ark. 1041, 110 S.W.2d 24. The United States Supreme Court has repeatedly held that a State can--if it so desires--provide for a prosecution by information instead of by indictment. Some of these cases are: Hurtado v. People of State of California, 110 U.S. 516, 4 S.Ct. 111, 28 L.Ed. 232; Bolln v. State of Nebraska, 176 U.S. 83, 20 S.Ct. 287, 44 L.Ed. 382; and Gaines v. Washington, 277 U.S. 81, 72 L.Ed. 793, 48 S.Ct. 468.'

The United States Supreme Court refused certiorari in the case of Washington v. State, 335 U.S. 884, 69 S.Ct. 232, 93 L.Ed. 423. So our holding remains the same as in Washington v. State. ²

II. Motion For Continuance. The trial of appellant's case was duly set to commence on July 10, 1957; and on the morning of that date the appellant filed a motion for continuance, claiming:

'On a late news telecast over television station KCMC at Texarkana, Arkansas, July 9, 1957, Bill Gill, newscaster, told viewers and listeners living in a wide area covering all of Miller County, Arkansas and much of the four State area which it serves, that Judge Lyle Brown had granted permission for the televising of the trial of the defendant scheduled to begin on July 10, 1957 at 9:00 A.M., in granting permission for the filming and recording from the corridors of the Miller County Courthouse. The defendant, by his attorney, moves for a continuance to ascertain the effect of the sudden and dramatic interest created by such an act, upon the minds of the inhabitants of Miller County, Arkansas, for a possible move to ask the Court for a change of venue.'

Testimony on the motion was duly heard. It disclosed that the defendant's attorney had agreed ³ that a television camera could be placed in a corridor of the Courthouse and that through a window or conduit into the Courtroom certain portions of the trial could be filmed; that the filmed portions would be edited after the trial; and that the pictures could then be televised as silent films. No cameras were stationed in the courtroom and no pictures were taken by any one in the courtroom. ⁴ The motion for continuance was not because of the television itself, but because a radio newscast on the night of July 9th had stated what was to be done; and appellant's attorney wanted the trial continued to see whether the radio announcement on the night of July 9th had adversely affected his client.

The Prosecuting Attorney, the Defense Attorney, and the Trial Court arranged some sort of pickup camera outside the courtroom. The motion for continuance is not an effort by the defendant's attorney to recede from that agreement: rather it is a motion for continuance to see if the announcement of the facts of the agreement had adversely affected his client. ⁵ We fail to see how the radio announcement could be a cause for continuance. The statutes (Ark.Stats. § 43-1705 et seq.) and construing cases specify the essential content and showing that must be made in a motion for continuance; and no such content or showing was here made.

III. Motion To Quash The Panel Of Petit Jurors. This presents the claim of racial exclusion of trial jurors in Miller County, Arkansas. The motion to quash recites, inter alia:

'That at all times material herein it has been, was and still is the custom in Miller County, Arkansas, to use white persons exclusively for regular Petit Jury service in any and all cases including the trials of felonies, and in selecting the current jury and the supplement thereto the Jury Commissioners substantially followed the said customs in naming only white persons to the said jury panel. The defendants allege that no Negroes are now serving on the present panel of petit jurors, and that they have been systematically excluded from serving solely because they are Negroes, and that this action constitutes discrimination and a denial to them of equal protection of the laws of the United States of America as guaranteed by Section One of the Fourteenth Amendment to the Constitution of the United States of America.'

A lengthy hearing was held on this motion covering seventy pages of the transscript. ⁶ The evidence reflects that for several years prior to November, 1953 no Negroes had been selected on the trial jury by the Jury Commissioners, with the exception of the June 1951 term, when four Negroes were selected. There are two terms of the Miller Circuit Court each year, being the terms of June and November. The record as to Negroes selected by the Jury Commissioners for trial jury service from November 1953 to date of this trial is as follows:

The defendant was tried at the June, 1957 term of the Court, at which ten Negroes had been selected for trial jury service. The record does not disclose the number of Negroes in Miller County who are qualified for jury service, and census figures of the total number of Negroes in the County would not indicate how many were qualified for jury service. ⁷

The issue here is whether, as regards the calling of Negroes for jury service in Miller County, Arkansas, there has been either a systematic exclusion or a studied vasion. We went into this issue in considerable detail in Washington v. State, 213 Ark. 218, 210 S.W.2d 307, 309; and we there said, as regards the claim of systematic exclusion in Jefferson County:

'* * * in the case at bar the record reflects that Negroes were selected for jury service at a special term of the Jefferson Circuit Court in March, 1947, and again at the regular term of the court in October, 1947, from which last-mentioned term comes this appeal. Thus, at the two most recent terms, including the one in which appellant's trial occurred, Negroes were selected for jury service. So, any alleged systematic exclusion of previous years certainly had been abandoned at the time of the trial of this case--and this abandonment was no doubt in keeping with the holding of the U. S. Supreme Court in Hill v. State of Texas, 316 U.S. 400, 62 S.Ct. 1159, 86 L.Ed. 1559. That case referred to grand juries, but--a fortiori--is also germane to petit juries. So, we hold that the evidence here sufficiently repels any inference of present systematic exclusion, since Negroes are now called for jury service.'

In the case at bar, Negroes have been called for jury service in Miller County, Arkansas since 1953; so certainly no systematic exclusion has been shown.

As regards appellant's claim of studied evasion, we likewise conclude that the proof offered fails to substantiate such claims. In Washington v. State, supra, we said on the claim of studied evasion:

'The fact that the jury commissioners selected Negroes for the panel satisfies the burden placed on the State under the holding in Patton v. State of Mississippi, supra [332 U.S. 463, 68 S.Ct. 184, 92 L.Ed. 76]: and the burden then devolved on the appellant to show that the jury commissioners practiced 'evasion.' There is no such proof in the record.'

Here, the record reflects that the Trial Judge positively instructed the Jury Commissioners to have Negroes on the trial jury list that was to be called to try this case. On June 19, 1957 when there was a preliminary hearing on the motion to quash the jury panel, the record reflects:

'* * * said motion is held in abeyance after announcement by the Court of intention to have additional jurors selected. Whereupon the State of Arkansas elects to put James M. Moore to trial first, to which there are no objections, and this cause is continued...