Rush v. State, 5148

• Decision Date: 01 November 1965
• Docket Number: No. 5148,5148
• Citation: 239 Ark. 878,395 S.W.2d 3
• Parties: Frederick L. RUSH, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 3

395 S.W.2d 3

239 Ark. 878

Frederick L. RUSH, Appellant, v. STATE of Arkansas, Appellee.

No. 5148.

Supreme Court of Arkansas.

Nov. 1, 1965.

Van B. Taylor, Donald Poe, Waldron, Hardin, Barton, Hardin & Jesson, Ft. Smith, for appellant.

Bruce Bennett, Atty. Gen., by Fletcher Jackson, Asst. Atty. Gen., Little Rock, for appellee.

McFADDIN, Justice.

The appellant, Fred Rush, was convicted of second degree murder in the killing of his stepfather, Paul Rush; and there is this appeal. This is the second time this case has been before us. The first appeal was in Rush v. State, 238 Ark. 149, 379 S.W.2d 29 (Opinion of May 18, 1964), wherein Fred Rush had been tried in the Sebastian Circuit Court and convicted of first degree murder and sentenced to life imprisonment. We reversed for the reasons stated in the Opinion and remanded the cause for new trial. Of course, on the second trial the greatest punishment the defendant could have received would have been life imprisonment. ¹ Sneed v. State, 159 Ark. 65, 255 S.W. 895.

On remand the case was transferred to Scott County, where Rush was tried and convicted of second degree murder; and from that judgment there is this appeal. The motion for new trial contains 53 assignments of error, but appellant's counsel have confined the argument to three points, which we now list and will discuss in the same order:

'I. The Court Erred in Refusing to Direct a Verdict of Acquittal.

'II. The Court Erred in Refusing to Admit Defendant's Exhibits 'G' and 'H'.

'III. The Trial Court Erred, and Denied Appelland his Constitutional Rights to a Fair Trial, in Instructing the Jury on Lesser Degress of Homicide after the Case had been submitted to the Jury for more than 28 Hours.'

I.

The information filed by the Prosecuting Attorney on March 14, 1963 charged 'the defendants, Frederick L. Rush, Raymond Wood, and Carolyn Brown, of the crime of murder in the first degree committed as follows, to-wit: the said defendants in the County, District, and State aforesaid, on the 13th of May, 1962, did unlawfully, wilfully, and feloniously and with premeditation and malice aforethought kill and murder Paul Rush by shooting him with a gun against the peace and dignity of the State of Arkansas.'

The defendants sought and obtained a severance, and each was tried separately. In both the first trial and the present trial of Fred Rush the State insisted that Fred Rush, Raymond Wood, and Carolyn Brown had formed a conspiracy to kill Paul Rush; that in keeping with the conspiracy Carolyn Brown drove the getaway car for Raymond Wood so he could flee without being seen after the murder; that Fred Rush lured Paul Rush to the basement of the V. & R. Sales Company building; that Raymond Wood fired the shot that killed Paul Rush and also fired a shot into the arm of Fred Rush to provide him with a better defense against being suspected of the murder of Paul Rush.

When this theory of the State was announced by the Prosecuting Attorney in his opening statement to the jury in the present case, the defendant moved for an acquittal, which motion was denied. The basis of the motion for acquittal was because the State had to admit that Raymond Wood and Carolyn Brown had each been acquitted of the murder of Paul Rush; and therefore since Raymond Wood was the man who fired the fatal shot and had been acquitted, Fred Rush could not be convicted. In other words, the defendant took the position that Fred Rush was at most an accessory to the killing that Raymond Wood committed, and that the acquittal of Raymond Wood as the actual murderer ipso facto worked the acquittal of Fred Rush.

We find no merit in the appellant's position. Under the evidence a jury could have found that Fred Rush was present, aiding and abetting in the killing, and without his work there would have been no killing. At the General Election in 1936 the People of Arkansas adopted ² Initiated Act No. 3, captioned, 'An Act to Amend, Modify and Improve Judicial Procedure and the Criminal Law, and for Other Purposes.' Section 25 of that Act, now found in Ark.Stat.Ann. § 41-118 (Repl.1964), reads:

'ACCESSORIES AND PRINCIPALS. The distinction between principals and accessories before the fact is hereby abolished, and all accessories before the fact shall be deemed principals and punished as such. In any case of felony, when the evidence justifies, one indicted as principal may be convicted as an accessory after the fact; if indicted as accessory after the fact, he may be convicted as principal.'

Some of our cases considering the 1936 Initiated Act are Wilkerson v. State, 209 Ark. 138, 189 S.W.2d 800; Fields v. State, 213 Ark. 899, 214 S.W.2d 230; and Lauderdale v. State, 233 Ark. 96, 343 S.W.2d 422. In each of these cases we held that one who stands by, aids, and abets, may be tried as a principal. So when the State offered testimony that Fred Rush was standing by, aiding and abetting in the murder of Paul Rush, he could be tried as a principal regardless of what had happened in the cases of the State against Raymond Wood and Carolyn Brown.

II.

The appellant's second point relates to the refusal of the Trial Court to allow the defense to introduce in evidence certified copies of the judgments of acquittal of Raymond Wood and Carolyn Brown. As heretofore stated, Fred Rush, Raymond Wood, and Carolyn Brown were charged with the murder of Paul Rush; and each defendant claimed and received a severance. After the first trial of Fred Rush the State then tried Raymond Wood and he was acquitted on May 25, 1963. The State then tried Carolyn Brown and she was acquitted on July 11, 1963. At the present trial of Fred Rush he sought to introduce in evidence a certified copy of the judgment of acquittal of the said Raymond Wood, and a certified copy of the judgment of acquittal of Carolyn Brown. These were the Exhibits G and H, referred to heretofore. The Trial Court refused to allow such exhibits to be introduced, and the correctness of such ruling is the point now argued.

The Trial Court was correct. We do not know what the evidence was in either the Wood trial or the Brown trial. We do not know what the instructions were in either of those cases. To allow a certified copy of a judgment of acquittal to be introduced would shed no light on the evidence in those cases. In Smith v. Dean, 226 Ark. 438, 290 S.W.2d 439, there was an attempt to introduce a certified copy of a judgment in a criminal case to support a claim against a party in a civil case. The Trial Court refused to allow such certified copy to be introduced; and in affirming the ruling we said:

'At the trial below the appellees introduced a certified copy of the judgment of conviction, but it is the settled rule in this state that such a judgment is not admissible to prove the fact on which it was based. Horn v. Cole, supra [203 Ark. 361, 156 S.W.2d 787]; Washington Nat. Ins. Co. v. Clement, 192 Ark. 371, 91 S.W.2d 265.'

In People v. Kief, 126 N.Y. 661, 27 N.E. 556, the situation was quite similar to the one in the case at bar. There, the defendants were jointly charged but tried separately. The copy of the judgment acquitting one defendant was held to be inadmissible when offered at the trial of the other defendant. The reasoning of the New York Court is so clear that we quote at length:

'But with the change effected by the Penal Code the distinction between principal and accessory disappeared, and thenceforward he who aided, abetted, or counseled in the commission of a crime became equally guilty with him who committed it, and could be indicted, tried, and convicted as a principal. If it is immaterial, therefore, upon the question of his guilt, whether a party, engaged in the commission of a felony, directly committed the crime alleged, or only abetted in its commission, it must be quite immaterial whether one jointly indicted with him for the offense has been acquitted or not. The question of the one defendant's guilt cannot turn upon the establishment of the other's guilt; it is an independent issue, to be tried out alone. * * *

'Now, the fact that Carrie Howard [the other indicted person] had been acquitted or convicted could not legally prove anything for or against this defendant, for he was not a party to that record. The general principle upon which the admissibility of evidence rests is its relevancy or its tendency to establish the issue upon trial. Carrie's acquittal would not prove this defendant's innocence of the charge in the indictment. At the most it would only prove that, being tried first, for some reason, she escaped conviction at the jury's hands.'

The Supreme Court of Massachusetts in Commonwealth v. Tilley, 327 Mass. 540, 99 N.E.2d 749, in reaching the same conclusion as the New York Court, stated that what happened in the case of the other defendant was 'res inter alios acta' in the trial of the current defendant. In line with these cases, we hold that the Trial Court committed no error in refusing to allow the Exhibits G and H to be introduced.

III.

The third point urged by the appellant relates to the action of the Court in waiting until the jury had been out 28 hours before giving an instruction on second degree murder. Originally the Court instructed the jury that they should either find the defendant guilty of first degree murder or acquit him. The State requested no instruction on second degree murder, and none was given.

The case was submitted to the jury at 2:00 P.M. on January 29, 1965 on the sole issue of guilt of innocence of first degree murder. At 8:00 P.M. the jury announced that it was 'hung.' The Court at that time inquired of the foreman as to how the jury stood numerically, and the foreman replied, 'ten and two.' After further deliberation that night the jury was sent back to the motel for a night's rest, and returned to the Court for further deliberation at 9:00 A.M. Saturday, January 30, 1965. At 11:30 A.M. the jury returned to the courtroom,...