Jones v. State , 204 Ark. 61 ( 1942 )

Appellant is a Negro, and so is George Miller, whom he murdered. Miller operated a moving picture show at Helena and was shot in the back of the head while seated in a chair. Appellant's purpose in entering the theater was to rob his victim. This intent was admitted in a signed statement introduced at trial without objection.

The indictment charged murder committed "willfully, feloniously, with malice aforethought, and after deliberation and premeditation."

The jury found appellant ". . . guilty as charged in the indictment, and [we] fix his punishment at death in the electric chair."

We therefore have an express finding that the accused committed murder in the first degree, yet ". . . human life is so tenderly regarded by the law that it may not be taken upon a conviction under an indictment charging the crime of murder unless, by the jury's verdict, the crime was found to be murder in the first degree."

The law's tender solicitude for the so-called rights of this malicious murderer who acted with premeditation and deliberation must rise above the verdict. We must reach for that phantom called technicality and remand the cause to the trial court in order that another jury may add the words "first degree"; and this procedure is adopted notwithstanding the finding so definitely made in language clear and comprehensive — a verdict so explicit that nothing written or said can supplement the meaning or add dignity to the judicial process.

Certainly human life is dear. It is tenderly — even passionately — protected by the law's zealous pronouncements predicated upon the proposition that it is better to let ninety and nine who are guilty escape than that one be unjustly punished. No one challenges the soundness of this policy; nor does the public protest more than momentarily when juries resolve doubt in favor of freedom for malevolent characters against whom the evidence is not convincing beyond a reasonable doubt. These seemingly lucky individuals usually become second or third offenders, and not infrequently gratify their proclivities for bloody butchery as they range at will because of the law's "tender regard" for the crossing of every "t," the dotting of every "i."

William Bettis and Sugin Ruck were electrocuted, according to penitentiary records, June 27, 1924. The verdict condemning Rucks was: "We, the jury, find the defendant guilty and fix his punishment at death." On appeal it was argued that the finding was defective; hence, no judgment could be rendered on it. In affirming the convictions April 14, 1924, this court said [164 Ark. 17, 261 S.W. 48]:

"Verdicts that are silent as to the degree [of homicide] are imperfect and void, because it is impossible for the court to determine from such a verdict what punishment the jury intended to inflict upon the accused, and therefore impossible for the court to pronounce such a judgment on such a verdict, because the punishment had not been fixed by the jury. But such is not the case at all where the jury returns a verdict of guilty and fixes a punishment which as clearly indicates the degree of murder as if the degree had been expressly named in the verdict. Here the jury in the Ruck case did not expressly name the degree of murder in its verdict of which it found Ruck guilty, but it found him guilty and fixed his punishment at death, thus showing that they found and intended to find him guilty of murder in the first degree, for murder in the second degree is not punishable by death."

In the Bettis case the jury did not recite a finding that Ruck was guilty as charged. In the instant case the jury, as stated, not only found that murder had been committed, but that nature of the act made it murder in the first degree. The indictment charged that offense, and stated how and with what intent the crime was consummated.

I am not convinced that capital punishment as a deterrent is preferable to other means of dealing with murder. But it is the system adopted in Arkansas, and the law is not judge-made. Our duty is to review for possible errors of trial courts, where business must be transacted in greater haste than is the case where time is available for research and reflection.

It seems to me that in sending Sugin Ruck to eternity in consequence of a verdict more indefinite than the one with which we are dealing, and in embracing a technicality in the case at bar and holding that the murderer of George Miller may try his luck before another jury because express language was omitted from a verdict that by no conceivable construction nor stretch of any man's imagination could have meant anything but what a casual reading finds in it, the scales of justice are being needlessly tilted in a direction they should not incline.¹

Mr. Justice HUMPHREYS joins in this dissent.

¹ On remand the defendant was tried and again found guilty of murder in the first degree, by express language. The judgment was carried out July 31, 1942.