White v. State, CR

• Decision Date: 20 October 1986
• Docket Number: No. CR,CR
• Citation: 290 Ark. 130,717 S.W.2d 784
• Parties: Charles Lee WHITE, Appellant, v. STATE of Arkansas, Appellee. 86-34.
• Court: Arkansas Supreme Court

Page 784

717 S.W.2d 784

290 Ark. 130

Charles Lee WHITE, Appellant, v.STATE of Arkansas, Appellee.

No. CR 86-34.

Supreme Court of Arkansas.

Oct. 20, 1986.

Goodwin, Hamilton & Moore by Donis B. Hamilton, Paragould, for appellant.

Steve Clark, Atty. Gen. by Theodore Holder, Asst. Atty. Gen., Little Rock, for appellee.

HOLT, Chief Justice.

The primary issue presented in this appeal is whether voluntary intoxication constitutes a defense to second degree murder, as it negates the existence of the requisite intent.We hold that voluntary intoxication is no longer available as a defense to criminal prosecutions, overruling our previous decisions to the contrary and those of the Arkansas Court of Appeals.

The appellant, Charles Lee White, was charged with first degree murder for the January 15, 1985, beating death of his wife, Joyce Cummings White.He was also charged with being an habitual offender.A jury convicted White of second degree murder and he was sentenced to 40 years imprisonment.Our jurisdiction is pursuant to Sup.Ct.R. 29(1)(b).

I.VOLUNTARY INTOXICATION

Appellant argues on appeal that the trial court erred by failing to give his requested instruction on the defense of voluntary intoxication as set out in AMI Criminal, 4005.1, and by instructing the jury that voluntary intoxication was not a defense to the crime of second degree murder.The underlying question concerns the very existence of the defense of voluntary intoxication in light of an act of the Arkansas Legislature designed to eliminate the defense of self-induced or voluntary intoxication.

We recognized in Mosier v. State, 285 Ark. 67, 684 S.W.2d 810(1985) that "some confusion surrounds the defense of voluntary intoxication" and we stated that we might re-examine our position in the appropriate case.As the issue is squarely presented in this case, we now take the opportunity to resolve the confusion.

At common law, evidence of voluntary intoxication, while no excuse for a crime, could be admitted to show the defendant was incapable of forming the specific intent necessary for the crime.Wood v. State, 34 Ark. 341(1879).See alsoOlles & Anderson v. State, 260 Ark. 571, 542 S.W.2d 755(1976).With the adoption of the 1976 Criminal Code, the statutory defense of voluntary intoxication was created, fashioned in part on common law.Act 280 of 1975, codified at Ark.Stat.Ann. § 41-207 provided: "[s]elf-induced intoxication is an affirmative defense to a prosecution if it negates the existence of a purposeful or knowing mental state".

Two years later, with Act 101 of 1977, the Arkansas Legislature amended § 41-207 to delete this subsection.Act 101 was entitled "An Act to ... Eliminate Self-Induced Intoxication as a Defense to Criminal Prosecution ...."

The Act included an emergency clause which read:

It is hereby found and determined by the General Assembly that the defense of voluntary intoxication is detrimental to the welfare and safety of the citizens of this State in that criminals are at times excused from the consequences of their criminal acts merely because of their voluntary intoxication and that this Act is necessary to eliminate the defense of self-induced or voluntary intoxication....

This court first interpreted the Legislature's action in eliminating voluntary intoxication as a defense in Varnedare v. State, 264 Ark. 596, 573 S.W.2d 57(1978) where we held:

By amending § 41-207 to remove self-induced intoxication as a statutory defense, the legislature, in effect, reinstated any prior Arkansas common law on the subject ...

* * *

Therefore, under either the statutory provisions of § 41-207, as the parties involved thought them to be, or under the case law, as expressed in Olles & Anderson v. State, the defense of self-induced intoxication was available to the appellant, if it rendered him incapable of forming the intent that was a necessary element of the crime.

This viewpoint has been consistently followed by this court.SeeMorgan v. State, 273 Ark. 252, 618 S.W.2d 161(1981);Harmon v. State, 277 Ark. 265, 641 S.W.2d 21(1982).

The Arkansas Court of Appeals, in considering voluntary intoxication as a defense, has drawn a distinction between crimes committed "knowingly" and crimes committed "purposefully."Bowen v. State, 268 Ark. 1088, 598 S.W.2d 447(Ark.App.1980).In Bowenthe court stated that a crime with "knowingly" as the requisite mental state does not require a specific intent, and the common law defense of voluntary intoxication is only available as a defense to specific intent crimes.A crime requiring proof that it was committed "purposefully", however, is a specific intent crime, according to the court.Accord : Menard v. State, 16 Ark.App. 219, 699 S.W.2d 412(1985).

Here, the trial court followed the reasoning of the court of appeals in refusing to recognize voluntary intoxication as a defense to second degree murder because the state is just required to prove that the crime was committed "knowingly."¹Ark.Stat.Ann. § 41-1503(Repl.1977).

After re-evaluating our cases and those of the Court of Appeals, we are now convinced that our court was wrong in Varnedare when we held that the elimination of § 41-207 reinstated the common law defense of voluntary intoxication.

It is a principle of statutory construction that a statute will not be construed as overruling a principle of common law, "unless it is made plain by the act that such a change in the established law is intended."(emphasis added)Starkey Const., Inc. v. Elcon, Inc., 248 Ark. 958, 457 S.W.2d 509(1970).In Barrentine and Ives v. State, 194 Ark. 501, 108 S.W.2d 784(1937)we said:

It has long been the rule in this state that 'A statute will not be taken in derogation of the common law unless the act itself shows such to have been the intention and object of the legislature.'

It is also a general principle "that the repeal of a statute which abrogates the common law operates to reinstate the common-law rule, unless it appears that the legislature did not intend such reinstatement."73 Am Jur 2d Statutes§ 384, pp. 505-06(1974);Johnson v. Olson, 92 Kan. 819, 142 P. 256(1914).Furthermore, the courts have no power to perpetuate a rule of law which the legislature has repealed.Id;Singer, Statutes & Statutory Construction, § 23.07 p. 326 (4th ed. 1985);State v. Tennyson, 212 Minn. 158, 2 N.W.2d 833(1942).

In Patapsco Guano Co. v. North Carolina Board of Agriculture, 171 U.S. 345, 18 S.Ct. 862, 43 L.Ed. 191(1898) the U.S. Supreme Court considered an act of the North Carolina Legislature requiring inspection of fertilizers and fertilizing materials, and payment of the costs of the inspection.The argument was made that certain earlier acts were revived by the repeal of other statutes but the Court disagreed, holding:

It is impossible to impute to the general assembly the intention, in repealing parts of the code which had been declared unconstitutional, to revive earlier laws which might render the amended law liable to the same objections.

The intention of the Arkansas Legislature in repealing § 41-207(a) is apparent from the title and emergency clause of the act: they intended to eliminate the defense of self-induced intoxication in criminal prosecutions.By reinstating the common law rule, which permitted voluntary intoxication as a defense to crimes requiring a specific intent, this court has perpetuated a rule of law which the legislature effectively repealed.We now reverse our position and declare voluntary intoxication is not a defense in criminal prosecutions.Likewise, the distinction made by the court of appeals between crimes committed with a "knowing" mental state and crimes committed with a "purposeful" mental state is of no consequence because this defense is no longer available.

Since the error complained of here is that the trial court failed to instruct the jury that voluntary intoxication is a defense to second degree murder, we affirm the trial court's holding.

The appellant raises several other issues in this appeal including the admissibility and voluntariness of a statement he gave to police officers; the presentation of that statement at the trial; the admission into evidence of certain items; and the court's failure to appoint a psychiatrist to examine him.They are all without merit.

II.APPELLANT'S CONFESSION

The appellant contends that his confession was not voluntarily and intelligently made and therefore should not have been admitted.

We independently review the totality of the circumstances surrounding a confession to determine whether an accused knowingly, voluntarily and intelligently waived his constitutional rights.Orr v. State, 288 Ark. 118, 703 S.W.2d 438(1986).Among the factors considered in determining the validity of a confession are the age, education, and intelligence of the accused, the advice or lack of advice of his constitutional rights, the length of detention, the repeated or prolonged nature of the questioning, or the use of mental or physical punishment.Id.We do not reverse the trial court's holding unless it is clearly against a preponderance of the evidence.Harvey v. State, 272 Ark. 19, 611 S.W.2d 762(1981).

As to the enumerated factors, White was 47 and illiterate.He was advised of his rights twice; he was not detained for any length of time prior to confessing, but rather began making statements immediately after officers arrived at his home; and there was no allegation that the questioning was prolonged or that there was mental or physical punishment.There was conflicting testimony about whether White was still intoxicated when he gave his statement.Conflicts in testimony are for the trial court to resolve and we defer to the superior position of the trial judge in that regard.Harvey v. State, supra.

Based on the totality of the circumstances, the trial court's decision to admit the confession was not against a preponderance of the evidence.

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