Ward v. State
| Decision Date | 16 September 1963 |
| Docket Number | No. 5073,5073 |
| Citation | 370 S.W.2d 425,236 Ark. 878 |
| Parties | William D. (Bill) WARD, Appellant, v. STATE of Arkansas, Appellee. |
| Court | Arkansas Supreme Court |
Lee Ward, Jonesboro, for appellant.
Bruce Bennett, Atty. Gen., by Russell J. Wools, Asst. Atty. Gen., Little Rock, for appellee.
Appellant, William D. Ward, was sentenced to a term of three years in the state penitentiary for the crime of fondling a male child under the age of 14 years in violation of Ark.Stat.Ann. § 41-1128 (Supp.1961). On appeal appellant contends the case should be reversed because of three alleged errors. One, the jury was invited to let the court fix the punishment. Two, the argument of the prosecuting attorney was prejudicial. Three, the court should not have permitted the introduction of testimony pertaining to prior and unrelated incidents. These alleged errors will be discussed in the order above mentioned.
One. Instruction No. 5 given, along with other instructions, when the case was submitted to the jury, reads:
'You are further instructed that if you find the defendant guilty as charged but are unable to agree upon the punishment to be imposed, you may return a verdict of guilty and leave the punishment to be fixed by the court.'
Ark.Stat.Ann. § 43-2306 (1947), in pertinent part and in substance provides, that when 'a jury find a verdict of guilty, and fail to agree on the punishment to be inflicted * * * the court shall assess and declare the punishment * * *.' The question then arises: When should the jurors be told they can leave to the court the responsibility of fixing the punishment--before they retire or after they find they cannot agree? The giving of a similar instruction as it was given here has been approved by us previously. See: Knighton v. State, 210 Ark. 248, 195 S.W.2d 47; Keese and Pilgreen v. State, 223 Ark. 261, 265 S.W.2d 542; Downs v. State, 231 Ark. 466, 330 S.W.2d 281. In the case of Underwood v. State, 205 Ark. 864, 874, 171 S.W.2d 304, the court seemingly indicated a preference for the procedure followed in the case under consideration--before the jury retired.
Appellant, obviously aware of the above decisions, contends however that the statute clearly indicates it is the province of the jury to first honestly endeavor to fix the punishment before they are informed they can leave the responsibility to the court. The reason given by appellant for his position is that it is human nature for a person to avoid making difficult decisions when he knows it is not necessary to do so. This line of reasoning seems to find some support in the recent case of Edens v. State, 235 Ark. 996, 363 S.W.2d 923 where, in commenting on the decision in the Underwood case, we said:
'Even so, we did not intend to state that the instruction should routinely be given in every case, and if the Underwood case has been so interpreted we take this opportunity to point out that ordinarily there is no occasion for the jury to be supplied with this information.'
Thus, it appears, we have not previously announced any required rule in this regard to guide the trial courts. So, after careful consideration, we now hold that the jury should not be told initially they can let the court impose the punishment but should be told only after they report they have reached a verdict of guilty but are unable to agree on the punishment to be imposed. We do not reverse the trial court for failing to follow this procedure in this instance because it was not aware of what we later said in the Edens case, supra.
Two. Appellant strenuously insists the jury was prejudiced by the allegedly heated argument of the prosecuting attorney, which argument we have carefully read although it is not fully abstracted. Since we have concluded that the case must be reversed and remanded because of the error later discussed, we deem it unnecessary to comment on all the objections raised by appellant to the argument.
As stated in Hall v. State, 161 Ark. 453, 257 S.W. 61, and in many other decisions of this Court, we, recognizing that jurors are men of good sense and sound judgment, have always held that a wide range must be given to the argument of counsel and much discretion must be left to the trial court. In particular, appellant here refers to certain remarks of the prosecuting attorney to the effect that he and his deputy would receive no extra pay if appellant were convicted and that appellant's attorney (once a deputy prosecuting attorney) would have prosecuted the appellant had the same facts been presented to him. We think the jurors were capable of assessing such arguments for what they were worth--that they had no bearing on the guilt or innocence of appellant. Consequently no reversible error has been shown.
Three. Finally it is contended the case must be reversed because the jury was allowed to consider evidence intended to prove appellant had engaged in similar unnatural sex activities with other young boys on former occasions.
The statute under which appellant was convicted provides, in all pertinent parts, that it shall be unlawful for any person with lascivious intent to place his hands on the sexual part of a male under the age of 14 years. The succeeding section fixes the punishment for violation at one to five years in the penitentiary.
Appellant, age 36, went to the Beasley Home at about 9:30 a. m. to install telephones. Mrs. Beasley, who was out temporarily, had left her son Tommy, age 11 (together with his brother Terry, age 8), at the house to point out the locations for the phones. Tommy stated positively that appellant fondled him two or three times on that occasion. He was corrobotated in part by Terry. Appellant denied emphatically and categorically that he in any way mistreated Tommy. There was no other direct testimony to show appellant's guilt or innocence of the offense for which he was being tried. This situation obviously presented a clear-cut issue of credibility to the jury.
On behalf of appellant it was shown that he had a good reputation; that he had been post commander of the American Legion, and was now its service officer; that he belonged to the Masonic Lodge; and, that he had once served as Chapter Dad of the local DeMolay organization. On the other hand the state, evidently hoping to convince the jury that Tommy and Terry Beasley (and not appellant) had told the truth, offered testimony tending to convince the jury that appellant had, on two former occasions, indulged in similar unnatural sex relations with other boys.
We have concluded that the testimony relative to one of the incidents was clearly inadmissible and prejudicial, and calls for a reversal. Over appellant's objections and exceptions a witness was permitted to testify that some four or five years previously, during a conclave of the DeMolay organization in a gymnasium at Piggott, he saw appellant engage in some acts which be thought were unbecoming; that appellant had one of the smaller boys kinda armed up, had his arm around him nudging him toward the south door, and he presumed he was loving the boy up a little bit--this didn't continue very long--the boy's father was present. Regarding the same occasion, another witness gave similar testimony, but neither witness saw anything approaching a violation of the statute.
We thing the above testimony was most prejudicial, and we have no way of knowing to what extent it influenced the jury. It is reasonable to suppose the jury gave considerable weight to the testimony because it was given by two witnesses who, apparently, stood high in the community. One was with the Weights Division of the State Police and lived in Piggott all his life; the other was a grain broker and a member of the International Supreme Council of the Order of DeMolay, and he was also an Executive Officer of this State.
It is difficult to think of a more dangerous precedent than to sanction the type of testimony above described. It...
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Caton v. State
...was held not too remote to be admissible as evidence of the defendant's proclivity to indulge in unnatural sex acts. Ward v. State, 236 Ark. 878, 370 S.W.2d 425. The trial court's latitude of discretion in the matter of remoteness is illustrated in these Evidence of such similar acts by a d......
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...they tend to establish a necessary motive or explanation for an otherwise inexplicably horrible crime; see, e.g., Ward v. State, 236 Ark. 878, 883, 370 S.W.2d 425 (1963); Acuna v. State, 332 Md. 65, 75, 629 A.2d 1233 (1993); State v. Forbes, supra, 331; see also 140 Cong. Rec. 24,799 (1994)......
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...case, evidence of prior similar offenses has been admitted when the charge involved unnatural or unusual sexual acts. Ward v. State, 236 Ark. 878, 370 S.W.2d 425 (1963); Alford v. State, 223 Ark. 330, 266 S.W.2d 804 (1954); Roach v. State, 222 Ark. 738, 262 S.W.2d 647 (1953); Hummel v. Stat......
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