Smith v. State

• Decision Date: 09 January 1967
• Docket Number: No. 5227,5227
• Citation: Smith v. State, 241 Ark. 748, 410 S.W.2d 126 (Ark. 1967)
• Parties: Arvin SMITH, Charles Riggs, G. D. Burris and Wayne Seawright, Appellants, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 126

410 S.W.2d 126

241 Ark. 748

Arvin SMITH, Charles Riggs, G. D. Burris and Wayne Seawright, Appellants, v. STATE of Arkansas, Appellee.

No. 5227.

Supreme Court of Arkansas.

Jan. 9, 1967.

Danuser & Huckaba, Mt. Home, for appellants.

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

FOGLEMAN, Justice.

Appellants were convicted of the crime of grand larceny of three hogs belonging to Billy Gene Owens in the Circuit Court of Marion County on the 16th day of April, 1966, and sentenced to one year in the penitentiary, with a recommendation that the sentence be suspended upon restitution in the amount of $500.00 and payment of court costs. Appellants assert twelve points for reversal, some of which are interrelated. We find one of these points to justify a reversal. This is because of instructions given by the circuit judge relating to commendations of clemency and suspension of sentence in response to inquiries by the jury. The case was closed and the jury instructed. After deliberation for a time, the jury returned to the courtroom and asked: 'If we give these boys a prison sentence, can we suspend the sentence--a suspended sentence?'. After advising the jury that it had the right to recommend a suspended sentence if they wished to do so, the trial judge said:

'I would have to tell you that under the law the Court is not bound exclusively or conclusively by the recommendations but I will tell you that I would certainly give grave consideration to any recommendation of the jury.'

The foreman of the jury then inquired whether compensation to the boy for his hogs entered into this. After advising the jury that there was no way the jury or the court could require this, the judge added:

'I might explain to you, however, that that could be made a condition of the recommendation for leniency. In other words, the recommendation could provide for restitution as a condition of your recommendation, if you wish to make it so.'

The foreman then asked: 'What about the Court costs?', to which the court replied that the law provided that defendants should be responsible for the court costs if they are financially able to pay, in case of conviction. He further advised that in order to avoid any misunderstanding, in case of a conviction and suspension of sentence, if there was a sentence, one of the conditions the court would have to make would be payment of court costs.

The jury then retired, after which defendants' attorney objected to the remarks of the trial judge that the court would give grave consideration to the recommendations of the jury, contending that, in effect, the statements indicated that the court might suspend the sentence and that this might cause the jury to convict when they might otherwise not do so, but no objection was made to any other remarks.

Later the jury again returned to the courtroom and inquired about the acceptability of a form of verdict finding appellants guilty of grand larceny but fixing '0 years' punishment, with an appendage after the foreman's signature adding '$500.00 for payment of hogs to Billy Gene Owens plus Court costs.' The trial judge properly advised that this would not be compliance with the law for the reason that the minimum penalty was one year, but added:

'Of course, you can consider this answer in connection with the answer the Court gave you a while ago to the other inquiry, you can consider these two answers together.'

After the court properly refused to permit appellants' attorney to make an offer to the court in the presence of the jury, objection was made to the remarks of the trial judge as an invitation to the jury to convict the appellants and make a recommendation of a suspended sentence.

After a motion for a mistrial on other grounds, the trial judge again advised the jury:

'The jury is the sole judge of the facts in this case and it is in your hands to determine the guilt or innocence of these defendants, and to make any recommendations which you see fit to make.'

Thereafter the trial judge told the jury that he was not bound by the recommendations, but when advised by the foreman that this was holding up the jury, replied:

'Yes, the only thing I know is the jury is not willing to trust the Court.'

The appellants, after first moving for a mistrial, then objected to the trial judge's remarks and moved for a mistrial. Later the jury returned its verdict resulting in the judgment from which this appeal is taken.

This court has always zealously guarded against the possibility that any remark of the trial judge might influence a jury's verdict. The statement of a trial judge relating to the transfer of a minor convicted of felonious homicide to the reform school was held improper, even though the trial judge advised the jury that this should not influence the jury one way or the other in determining guilt or innocence. Pittman v. State, 84 Ark. 292, 105 S.W. 874. A similar instruction about the committing of women to a state farm for women has been held prejudicial for the reason that it might have influenced the jury in returning a verdict of guilty. Mitchell v. State, 155 Ark. 413, 244 S.W. 443; Snyder v. State, 155 Ark. 479, 244 S.W. 746.

While convictions have been sustained by this court where trial judges have given similar instructions to the jury because no objection was made at the time the statements were made, (See Pendleton v. State, 211 Ark. 1054, 204 S.W.2d 559; Filtingberger v. State, 216 Ark. 754, 227 S.W.2d 443; Andrews v. State, 225 Ark. 353, 282 S.W.2d 592.) this court has held that no statement should be made by the court that might tend to lead the jury to believe a suspended sentence would be granted if requested. In the Andrews case this court held that statements to the jury that the trial judge believed he had thus far followed jury recommendations of clemency and that he would be glad, if they so desired, to receive such a recommendation were objectionable. Statements made by the trial judge in the present case would seem to tend even more to indicate that he would suspend a sentence based on restitution and payment of court costs if recommended.

A very similar statement by a trial judge, after instructing the jury at some length upon the right of the court to suspend the sentence in case of a verdict of guilty, that 'you may safely trust to the court the right performance of whatever duty and responsibility is imposed by the legislature upon that officer, and you will make no mistake in such assumption,' was held in Bryant v. State, 205 Ind. 372, 186 N.E. 322, to seem to be designed to lure or wheedle the jury past the obstacle of and to disarm the jurors of any doubts or hesitancy occasioned by the severity of the penalty involved. We are aware of and accept the statement of the trial judge that his remark about the lack of trust in the court by the jury was a facetious one and made as the jurors started to file out of the room. On the other hand, we must recognize that facetious remarks by the judge presiding over the trial are not always so taken by hearers and where the liberty of accused persons is at stake the making of such remarks is to be discouraged. Facetious or not, the words of the trial judge in the background of previous statements on the subject were prejudicial to the defendants, even if heard by only part of the jurors.

Objection was also made by appellants to the trial judge's permitting the sheriff to select two jurors of his choice from the special panel of 25 provided by the jury commissioners, the regular panel having been exhausted. While this probable was not reversible error because the only objection made was that the sheriff was prejudiced because he was a prosecuting witness, and because the record does not show that defendants had exhausted their peremptory challenges when the two additional jurors were summoned or whether these jurors actually served, we deem this objection to be of sufficient importance to be considered.

The mere fact that the sheriff is a witness in the case is not necessarily an indication that he is prejudiced against a defendant and does not disqualify him from serving in the absence of a showing of actual prejudice. Hudspeth v. State, 188 Ark. 323, 67 S.W.2d 191; Hulen v. State, 196 Ark. 22, 115 S.W.2d 860; Ashcraft v. State, 208 Ark. 1089, 189 S.W.2d 374. No such showing was made.

Where it is not shown that appellants had exhausted their peremptory challenges and were thereby compelled to accept any juror who was not qualified and impartial, they are not in a position to complain of the method that was used. Rogers v. State, 133 Ark. 85, 201 S.W. 845; Brock v. State, 237 Ark. 73, 371 S.W.2d 539.

Nevertheless, in the Brock case this court expressed its disapproval of a procedure whereby persons to be served from such a special panel were selected by the trial judge without regard to numerical order and for reasons known only to the judge himself. We hold that the language of Ark.Stat.Ann. § 39--220 (Repl.1962) providing that 'said list to be drawn in lieu of summoning bystanders' can only be construed to require that the names of those to be served be drawn by lot, as in the case of a drawn...