Perry v. State , 232 Ark. 959 ( 1961 )

J. Seaborn Holt, Associate Justice.

Tbe appellants, Jesse Baymond Perry and Jobn Taylor Coggins, were charged with the crime of unlawfully and feloniously injuring property with dynamite in violation of Arkansas Statutes (1947) § 41-4237. Separate trials were held for each of the named defendants and a jury returned a verdict of guilty against each. Punishment for Perry was assessed at three years in the State Penitentiary. Punishment for Coggins was assessed at three years in the State Penitentiary and a $500.00 fine levied. A synopsis of the material facts shows that the appellants were part of the “confidential squad” of an organization known as the Ku Klux Klan who planned and carried out acts of violence directed against the Little Bock Public School Board and certain city officials of the City of Little Bock. The violence was designed to harass the School Board and city officials for their role in the integration of Negro pupils into the Little Bock school system. On the afternoon of September 6, 1959, Perry and Coggins, in the company of another person, drove to the places that had been selected as targets for bombing in order to acquaint themselves with the nature and location of the targets. On the night of September 7, 1959, the appellants proceeded to carryout the plan of dynamiting the school board offices at Eighth and Louisiana Streets, Mayor Werner Knoop’s office on Gaines Street, and the bombing of Little Rock Fire Chief Gann Nalley’s station wagon. Perry and Coggins were arrested on September 10, 1959, and charged the following day with willfully and feloniously destroying property with dynamite.

Although the appellants assigned numerous alleged errors in the trial court proceedings, they argue but three on this appeal. (I) That the trial court erred in refusing to grant a change of venue, (II) that the trial court erred in refusing to quash the jury panel, and (III) that the trial court erred in permitting statements of other offenses with which the defendant, Jesse Raymond Perry, was charged to be admitted in evidence.

I

It is first contended that the trial court erred in refusing to grant a change of venue to the defendants because widespread coverage of the crime by local newspapers and other news media created a situation where public sentiment was so aroused and inflamed that it would be impossible for the defendants to obtain a fair and impartial trial in Pulaski County. A petition for change of venue was filed under Arkansas Statutes (1947) § 43-1501 and supporting affidavits were signed by thirteen persons, nine of whom testified at the hearing. The State filed counter-affidavits from twenty-seven persons and twenty-one of these testified. Unless the trial court abused its discretion in denying appellant’s motion for a change of venue, then we must affirm the court’s order. See Bailey v. State, 204 Ark. 376, 163 S. W. 2d 141, Meyer v. State, 218 Ark. 440, 236 S. W. 2d 996. In the present case, our review of the facts does not show an abuse of discretion. Numerous witnesses testified for both the defendants and the State. Their testimony was contradictory. However, in Leggett v. State, 227 Ark. 393, 299 S. W. 2d 59, this court held no abuse of discretion existed where there was presented a situation where hundreds of veniremen were searchingly examined under oath over a three-day period. Here, as in the Leggett case, supra, there is evidence that many veniremen may have reached positive conclusions as to the guilt or innocence of the defendants, but the lower court reached the conclusion after hearing all the testimony firsthand that the defendants could receive a fair trial and we cannot say under the facts of this case there was an abuse of discretion. We said in the Leggett case:

“It cannot be said that the court abused its discretion in refusing to order a change of venue. What the statute requires is a showing that the minds of the inhabitants of the county are so prejudiced against the accused that a fair trial cannot be had. Arkansas Statutes (1947) § 43-1501. Formerly the court was restricted to determining the credibility of the affiants supporting the motion, but the 1936 revision of the statute permits the court to ascertain whether the allegations of prejudice are well founded. Robertson v. State, 212 Ark. 301, 206 S. W. 2d 748. Here the trial judge had listened for more than three days while hundreds of veniremen were searchingly examined under oath. In deciding whether the appellant’s two witnesses had correctly estimated the local sentiment the court was entitled to consider the views of scores of citizens already heard. Although many veniremen had reached positive conclusions from what they had read or heard, there is no indication that the news reports were biased or represented a studied effort to inflame the public. Meyer v. State, 218 Ark. 440, 236 S. W. 2d 996. Despite the defendant’s theory that it was impossible to obtain a fairminded jury within the county, the court was convinced by testimony heard at firsthand that this goal had almost been reached. In these circumstances the conclusion that the asserted prejudice did not exist lay well within the limits of the court’s discretionary authority.”

II

It is next contended that the trial court erred in refusing to quash the jury panel. The court appointed three jury commissioners for the September 1959 term of court. The jury commissioners selected the jury panel for the September term of court and the respective jurors were summoned to appear on the first day of the new term, September 28, 1959. On this same date the court felt that one of the Commissioners, Marion Ward, was disqualified to serve as a jury commissioner and removed him. The jury was dismissed and each was paid for one day’s jury service. A new jury commissioner, Jack Pickens, was selected by the court to replace Mr. Ward. The new commissioners selected a panel of jurors by which Perry and Coggins were ultimately tried and convicted. The appellants rely upon Arkansas Statutes (1917) § 39-222 which provides if the panel of jurors selected is set aside that the court shall order the sheriff to summon a petit jury who shall attend and perform the duties of jurymen as if they had been regularly selected. It is argued that in the present case, since the regular panel of jurors was set aside, that the sheriff should have summoned a panel of jurymen to try the defendants. We do not agree. Act 205 of Acts of 1951, compiled as Ark. Stats. 39-220.1 and 39-221.1, provides:

“Deficiencies in the regular panel of the petit jury shall be filled by selecting jurors from the special panel provided for in section 3 [§ 39-220] of this act and when in the trial of any case the regular panel is exhausted the court shall direct the summoning of a sufficient number of jurors from the special panel to complete a jury for the trial of said cause. In no event, except by consent of the parties, shall bystanders be summoned.

“In the event it becomes evident to the court that the special panel should be supplemented with additional names of petit jurors the court may recall the jury commissioners which selected such panel for the purpose of supplementing said special panel with such number of petit jurors as the court deems necessary. In the event of disqualification or unavailability of one or more of such jury commissioners the court may appoint one or more jury commissioners in lieu thereof.”

In the present case both the regular and the special panels of petit jurors were quashed, therefore it was necessary for the court to recall the jury commissioners to supplement the panels selected. It will be noted that this section of the statute, § 39-221.1, provides that the court may appoint other jury commissioners if one or more of the jury commissioners is disqualified. This was done in the present case. We think that the court followed the proper procedure in the present case and no error was committed as urged by the appellants.

The appellants also argue that the jury panel should have been quashed because two of the jury commissioners, Jack Pickens and Milton Anderson, were members of business firms which had subscribed to a reward fund sponsored by the Little Eock Chamber of Commerce to be paid for information leading to the arrest and conviction of individuals responsible for the aforementioned crimes. We think this is without merit.

In Arnold v. State, 148 Tex. Cr. R. 310, 186 S. W. 2d 995, 158 A.L.R. 1356, the defendants were indicted by a grand jury for cattle thefts and convicted by a petit jury. Both the grand jury and the petit jury contained persons who were members of an association whose purpose was to help investigate and prosecute cattle thefts. The Court of Criminal Appeals of Texas held that such members were not disqualified. And in Corley v. State, 162 Ark. 178, 257 S. W. 750, the citizens of Newport had contributed money to promote a law and order league, and several of the veniremen had contributed money to this association. These veniremen testified that their contributions had been made for the purpose of suppressing lawlessness generally, and no juror held competent was shown to have made a contribution for the purpose of prosecuting the appellant personally. The court in commenting upon this noted:

‘ ‘ The veniremen were not disqualified by this bias. The rule is that a juror is not disqualified from trying a person accused of a particular crime because he has a prejudice against the crime charged, if such prejudice against a particular crime would not prevent the juror from impartially considering the question of the guilt of the accused.”

"While the above cases deal with either grand or petit jurymen we can see no reason to apply a different rule of disqualification for jury commissioners who are even further removed from the case than a petit juror. The bias, if any, of jury commissioners, Pickens and Anderson, was not toward the particular defendants in this case, but toward the crime committed. It was their desire to see the offenders punished, whoever they might be. It is certainly no disqualification that a jury commissioner or juror be prejudiced against lawlessness. “. . . (G-)ood citizenship implies a respect for and obedience to all laws, so long as they are laws, and a willingness and desire to see them effectively administered.” Remer v. State, 3 Okla. Crim. 706, 109 P. 247.

in

Finally the appellant, Perry, contends that the court erred in allowing the prosecution to offer proof of an offense in addition to the one for which he was being tried. The record shows that Perry and the other members of the confidential squad met on several occasions to plan the dynamiting of three different places. All three bombings were part of a single scheme and were carried out in rapid succession on the same night. In the case at bar Perry was being tried on the charge of dynamiting the School Board office. The court allowed the prosecution to introduce proof of the entire plan and its execution, and this evidence showed that Perry was also implicated in the bombing of Nalley’s car. The jury was instructed that the proof concerning the other offense was not to be considered with reference to the defendant’s guilt of the charge on trial.

The court’s ruling was correct. “If several crimes are intermixed, or blended with one another, or connected so that they form an indivisible criminal transaction, and full proof by testimony, whether direct or circumstantial, of any one of them cannot be given without showing the others, evidence of any or all of them is admissible against a defendant on trial for any offense which is itself a detail of the whole criminal scheme.” Underhill’s Criminal Evidence (5th Ed.), § 207.

The principle has often been recognized by this court. In the early case of Baker v. State, 4 Ark. 56, we stated the rule as follows: “Generally speaking, it is not competent for a prosecutor to prove a man guilty of one felony, by proving him guilty of another; but where several felonies are connected together, and form part of one entire transaction, then the one is evidence to prove the character of the other. . . . All the authorities concur, that the intention and design of the party are best explained by a complete view of every part of his conduct at the time, and not merely from the proof of a single and isolated act or declaration ; and it may so happen, that, from the nature of the offense charged, it is impossible to confine the evidence to proof of a single transaction.” Again, in Banks v. State, 187 Ark. 962, 63 S. W. 2d 518, we said: “Moreover, the testimony of Mrs. May was competent for another reason, that is to say, if several crimes are intermixed, or blended with one another, or connected so that they form an indivisible criminal transaction, and full proof by testimony, whether direct or circumstantial, of any one of them cannot be given without showing the others, evidence of any or all of them is admissible against a defendant on trial for any offense, which is itself a detail of the whole criminal scheme. Thus, where two or more persons are assaulted at or about the same time and place, it will be permitted to prove all the assaults on the trial of one indictment for any one of them. For the reason that all the assaults are merely parts of one transaction and to prove one necessitates proof of all of them.” Other cases to the same effect include Johnson v. State, 152 Ark. 218, 238 S. W. 23, and Mayfield v. State, 160 Ark. 474, 254 S. W. 841.

We have examined the other numerous assignments of error hut find no error as alleged.

The judgment is affirmed in both cases.

Robinson, J., not participating. Johnson, J., concurring.