Young v. State, 4940

• Decision Date: 01 June 1959
• Docket Number: No. 4940,4940
• Citation: 324 S.W.2d 524,230 Ark. 737
• Parties: William YOUNG, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 524

324 S.W.2d 524

230 Ark. 737

William YOUNG, Appellant, v. STATE of Arkansas, Appellee.

No. 4940.

Supreme Court of Arkansas.

June 1, 1959.

James E. Hyatt, Jr., Osceola, for appellant.

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

McFADDIN, Justice.

This is a capital case. On Sunday afternoon, August 17, 1958, the appellant, William Young, shot and killed Erman Cox, a State Highway Police Patrolman. Appellant was arrested a few hours after the shooting; and at a preliminary hearing in the Municipal Court of Osceola, he pleaded guilty. He was charged with murder in the first degree. § 41-2205 Ark.Stats. The jury trial of appellant in Circuit Court began on October 14, 1958; and he entered a plea of guilty to the information filed against him. A jury was empaneled to determine the degree of the crime and to fix the punishment, as provided by § 43-2152 Ark.Stats. ¹ The jury returned a verdict of murder in the first degree and fixed the death penalty. The motion for new trial was overruled; sentence was pronounced; and this appeal ensued. We have examined all of the assignments in the motion for new trial and also every objection appearing in the transcript, as is our rule in capital cases (Smith v. State, 205 Ark. 1075, 172 S.W.2d 248, 249). We group and discuss the assignments and objections in suitable topic headings.

I. Sufficiency Of The Evidence. Erman Cox was an Arkansas State Highway Police Patrolman; and had been stationed at Osceola, Arkansas for some time. He was subject to call 24 hours a day; and the fact that he was not in uniform did not prevent him from being in the discharge of his duties. About 1:00 p. m. Cox went in his personal car (being a red and white Dodge) to the store of Mr. Heaton to get a package of cigarettes. Cox had frequently been in that store, both in uniform and in civilian clothes; and Mr. Heaton testified that he had seen the appellant, Young, talking to Officer Cox when the latter was in uniform as well as in civilian clothes. While Officer Cox and Mr. Heaton were in conversation (about 1:00 p. m. Sunday afternoon, August 17th) they observed appellant Young getting some one to push his pickup truck and when the truck started, Young drove in a fast and reckless manner. On direct examination Heaton described the method of Young's driving as 'going all over the road'; and on cross-examination he said Young was 'zigzagging'.

Officer Cox got in his car and 'started out after' the appellant and pursued him across two levees to Young's home on the bank of the river. It was there that the homicide occurred. The witness, Grigsby, testified that he saw Young marching Cox at gunpoint around the house and cursing him, and then the witness heard the shot. Other witnesses heard the shot, and when they reached Cox' car they found him seated in his car, dead. A bullet had entered his face under the left eye and had never left the cranium.

In his statement to the officers after the arraignment in Municipal Court, Young said that he shot Cox without knowing that Cox was an officer, but that Cox was retreating to his car; and Young said that after he had shot Cox and while Officer Cox was seated in the car 'quivering', Young turned off the ignition to Cox' car, and then went into a boat and went to sleep in the boat after going some distance from the landing. The statement which Young gave to the officers was in writing and witnessed; and Young admitted (when he testified in the hearing on the motion for new trial) that the statements in the confession were correct, and were voluntarily made.

The testimony of all the witnesses makes clear that when Cox saw appellant driving as he was, Cox pursued him to make an arrest; that Young drove to his home, went in and got the gun, came out and marched Officer Cox around the house, cursing him; and then after Cox had returned to his car and was seated therein and had started the engine, Young shot the officer in the face and caused his death. This evidence is sufficient to show that Young acted deliberately, feloniously, wilfully, and maliciously and with premeditation and malice aforethought, and intentionally shot Cox in the head. So the evidence is amply sufficient to support the verdict. We have several cases wherein, after a plea of guilty, the appellant has been given the death sentence by the jury. Some of them are Rorie v. State, 215 Ark. 282, 220 S.W.2d 421; and Jones v. State, 204 Ark. 61, 161 S.W.2d 173.

Appellant's counsel, on appeal, argues most persistently that we should reduce the punishment from the death sentence to life imprisonment. It was the prerogative of the jury to assess the degree of the crime and fix the punishment; and when we find the evidence is sufficient to sustain the verdict, we have performed our constitutional duty. In Rorie v. State, supra, we were urged to reduce the punishment in a death case; and what we said there applies with equal force here:

'Finally, appellant's counsel asks this Court to 'exercise its constitutional power and reduce the death sentence to life imprisonment.' Among other cases, we are cited to Blake v. State, 186 Ark. 77, 52 S.W.2d 644, in which case this Court modified the judgment, from the death sentence to imprisonment. When this Court finds that the evidence is insufficient to support the punishment assessed, then we have the power to modify the punishment. Our cases clearly reflect, however, that this modification is done, not on a basis of judicial clemency, but only in a case in which the evidence would not sustain the higher punishment assessed. In the case at bar we find the evidence sufficient to support the jury verdict.' [215 Ark. 282, 220 S.W.2d 173.]

II. All Of The Appellant's Rights Were Recognized And Safeguarded. Appellant's present counsel makes an ad hominem argument to the effect that appellant did not receive full protection of all his constitutional rights at the jury trial. We have examined the record most carefully in this regard, and find no merit in such argument. The appellant was taken before an examining magistrate shortly after his arrest (§ 43-601 Ark.Stats.); and he was sent to the State Hospital for sanity examination ² (§ 43-1301 Arks.Stats.). The information charged in part:

'The said defendant on the 17th day of August, 1958, in the Osceola District of Mississippi County, Arkansas, did unlawfully, deliberately, feloniously, wilfully, maliciously, and with premeditation shoot and kill Arkansas Highway Patrolman, Erman Cox, near Jacksonville Landing, Osceola, Arkansas, by deliberately and intentionally shooting the said Erman Cox through the head with a 31 calibre Japanese make rifle, against the peace and dignity of the State of Arkansas.'

On October 1, 1958, on arraignment in Circuit Court, appellant had no attorney; and the Court appointed two attorneys to represent him, being Messrs. Ralph Wilson and Mitchell Moore. They were and are capable attorneys and conscientious gentlemen. They entered into the discharge of their duties; had access to the signed statement appellant had given the officers; and they conferred with appellant, his wife, and others. As to defendant's plea, the record reflects:

'On this 14th day of October, 1958 comes the State of Arkansas by Terry Shell, Prosecuting Attorney, and comes the defendant in proper person in custody of the Sheriff and by his Attorneys, Moore and Wilson, and waived formal arraignment, and after having the nature of the Information, plea, and effect thereof explained to him by the Court elected to enter a plea of Guilty.'

After the plea of guilty, the Court empaneled a jury to fix the degree of the crime and the punishment (§ 43-2152 Ark.Stats.). Appellant was advised repeatedly by his counsel that he could take the witness stand or not, as he saw fit, and that his failure to testify would not be considered against him. He decided that he did not want to testify, and later admitted (in the hearing on the motion for new trial) that he so advised his attorneys. These lawyers were so anxious to fully represent their client and protect his rights that they consulted an attorney from another city, and even went to the Trial Judge in chambers on the matter of the appellant deciding not to testify. The cross-examination of some of the State's witnesses and the objections made as to the order of argument (to be considered later) show the zeal which these attorneys exhibited in representing the confessed murderer. Since appellant had pleaded guilty in the examining trial and had made a free and voluntary confession, the attorneys thought that by allowing the appellant to plead guilty, the jury might given him punishment of life imprisonment rather than the death sentence.

The Trial Court required the State to prove every point of its case, just as though there had been no plea of guilty, because it was for the jury to determine the degree of the crime and to fix the punishment. The Court fully instructed the jury. The forms of verdict given to the trial jury covered not only murder in the first degree with the two options of punishment, but also murder in the second degree with years for sentence, and also a form for a possible finding of not guilty. The jury returned into open Court its verdict:

'We, the Jury, find the defendant guilty of Murder in the first degree and fix the punishment at death by electrocution.'

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