*1 1260 of the car the occupants
the
of the
negligence
a
reading
is clear
though
even
jury,
listened,
if
looked
that
they
stopped,
they
the
engine,
could have avoided
they
striking
Did the
see and
boys
did.
thus:
We stated
question
train,
to make
its
so as
hear
or know of
approach
unnecessary?
signals
statutory
decisions,
to
it seems to
harmonize
these
In order
that, when comparative negligence
me
we must say
that
case,
failure of
is involved
collision
crossing
ceases
be
statutory signals
a train crew to give
approach
or
presence
a factor
when the
only
this
to one alleging
train was known
other means
was so obvious
recovery
basis for
or
failure as a
heard to
that he was unaware
the claimant cannot be
say
me
Otherwise,
jury is
it seems
of it.
negligence.
determine
cause and
proximate
compare
however,
tell
instruction
would
given,
effect,
to give
signals
the failure
jury,
if
statute
not be relevant
required
presence
could
could have been discovered by
of the train
approach
the exercise of
care
ordináry
the deceased through
this is the law.
I do
believe
part.
GLOVER
STATE
Ray
Clyde
Arkansas
“The evidence of the if believed the trier fact, of was abundantly ample support his con- death electrocution.
viction sentence our it will be of this appeal, the prosecution was court the evidence purpose persuade aAs matter a conviction. not sufficient to sustain State, believed, fact, if reveals and subsequent murders one of the more gruesome in the annals recorded to conceal murder attempt a serious question this State. There was every each and material credibility of about The defendant’s defense the State. witness for lack an alibi upon upon predicated called witnesses credibility against of all material him.” *3 the following relies upon reversal appellant
For points: in to refusing quash “The court erred
I. 5, 1969, on March issued search warrant pur- to obtained refusing exclude warrant. to such search suant in overruling appellant’s II. The court erred Shoe, for cause to Ralph talesmen challenges L. Alvin Britewell and Boyd, Wayne Glenn T. White. Jackson erred in to allow the de- refusing
III. The court to cross-examination of the prove fendant on Pitcher that said witness state witness Peggy hus- had told the defendant and her been that double-dating. been band The erred in on the commenting weight court IV. in effect stating the evidence by there was no testi-
presence jury the inference witness mony justifying Leorn Pitcher had assaulted decedent intent kill her. with an to allowing V. The erred accomplice court to Latham after crime testify a ring, where officers place showed the dece- finger taken allegedly the officers recov- dent, buried out place pointed at the ring ered the witness. Prose- allowing Deputy erred in court The
VI. cuting Mayes comment Howard to Attorney the witness stand. take failure defendant’s VII. The erred court defendant’s give refusing
requested instruction No. 1.” for failure reversing judgment we are Because talesmen from the jury to excuse the trial court Shoe, L. Britewell and Wayne T. Boyd, Glenn Ralph IV and we do not discuss Points Alvin White Jackson new arise on a trial. likely VI. are not They II POINT Shoe, record, to talesmen respect Boyd, with Brite- follows:
well and Jackson, Shoe when court Ralph interrogated Juror stated: A my “I own witness could opinion. formed just *4 I formed change come on the stand and everything. it I read about heard what opinion change it. As I a witness could talked about say, whatever, disregard opinions all I would around. I in the and base verdict my have formed past given on the evidence and the strictly simply I to which opinions law without regard any given held. I did not to previously any have talk may who to be witness.” body purported the juror counsel interrogated When defendant’s stated: I mental state is would present attempt
“My says what court about the evidence follow consider only and the law and evidence heard me given stand law from the witness and the But, connection, in that until I hear the court. evi- gives grounds dence from the witness stand that me something me to believe which would cause change my ideas, I would still have those . ideas. .” Boyd questioned by Glenn when T. Juror opinion had formed an court said that he realized whatever he read hearsay paper was disregard try juror if as a he would it and selected appellant on evidence he heard in court. But interrogated by counsel, he said: when defendant’s opinions “I formed some tentative about the mat- presently which I I ter to entertain. While indicated willing His I would be to set Honor that this try the case on the law and aside and evidence, until some evidence is introduced to re- opinion, move that I will still have it.” Wayne as follows: Britewell testified L. Juror Interrogation by court: reading of the decedent. death recall about
“I opinion. Regard- to form an It is a little hard less regardless opinions have formed and I may true, or heard is I have read whether what of I try in court to I hear the evidence would it on opinions ability. my these I would set best aside. appellant’s
Interrogation by counsel: Light, answering Judge I that what I stated “In only had, I evidence heard was read and go by supposed I I believe that time as I did hear Until such evidence. in this opinion. my present case, entertain I would *5 Interrogation by court: opinions at either arrived have formed were
“The I did who people from other it about hearing from I read what witnesses to be not purport I could which opinion is an This paper. such disregard readily I would disregard. readily solely and wholly verdict my base opinion an case. the evidence on by counsel:
Interrogation evidence to remove my “It would take some present opinion.” Alvin White after interrogation Jackson Juror counsel: court stated finally appellant’s I have indicated an to his Honor’s
“Although answer I am to set aside perfectly willing questions ability to the best my opinions my present evidence, die case on the law and the it would try I take evidence to remove that and would opinion I until heard evidence to keep opinion contrary.” 6, Constitution, No. Amendment
Both the U. S. 2, 10, Constitution, guarantee Arkansas Art. and the § im- trial “by criminal prosecutions the accused all a sensational involving killing In a case jury”. partial to find it almost impossible publicity and newspaper on the who has not to serve jury an informed citizen formed some who has Tiot about the case and heard In such accounts. newspaper- upon based opinion court to determine the trial duty it is the cases and whether has been formed whether opinion to the ac- give can aside such lay jurors the law requires of all doubts the benefit cused given him the law and the evidence trying while trial. When a venireman states during to them opinions give preconceived he can aside such lay which he is of the doubts the accused the benefit law, conceded that under is generally entitled under the constitu- as “impartial” venireman qualifies State, Rowe Ark. See tional requirements. where we said: (1955), S. W. 2d 887 *6 1266 said veniremen
“While it is true of that some based upon opinions tentative had formed they one had told some what reports newspaper they could stated them, accepted who were all testimony, solely be guided would doubts of all the benefit the defendant giving in accept- no error There was defines. law that the in an is longer practicable It no men. these ing psycholog- a jurors to select society intelligent information where a stratum or from ical vacuum lacking.” is a whole as community common 751, 717, 6 L. Ed. 2d Dowd, U. S. 366 v. Irvin In Court, speak Supreme U. S. (1961), 1939 81 S. Ct. Clark, discussed Tom Mr. through ing Justice language: in this requirement juror “impartial” essence, . “. . trial right jury guarantees to the accused a fair trial criminally by a panel ‘indifferent’ impartial, jurors. failure to ac cord an accused a fair violates hearing even the Oliver, minimal standards of due Re process. 333 257, 682, 499; U. S. Ohio, L. Ed 68 S. Ct. v. Tumey 92 510, 749, U. L. S. Ed.
273
71
S. Ct.
47
437,
ALR
‘A fair
50
trial
a fair
1243
tribunal
is a basic
of due
Re Murchi
requirment
process.’
son,
133, 136,
942, 946,
U. S.
L.
349
99
Ed.
75
In the
S. Ct.
ultimate
analysis, only
623.
jury
a
can
man of his
strip
liberty or his life. In the
Coke,
of Lord
language
must be
‘indif
juror
as
ferent as he stands unsworne.’ Co. Litt. 155b. His
verdict must be
based
upon
developed
Louisville,
at the trial.
Thompson
Cf.
U. S.
362
199,
true,
654,
4 L. Ed 2d
80
S. Ct.
This
624.
regardless
heinousness
the crime
charged,
of the offender or
apparent guilt
the station in
life which he
It
occupies.
was so
into
written
our
law as
early
Chief
Marshall
Justice
It is not required, be jurors of the facts and totally ignorant issues involved. swift, widespread In these days diverse communication, methods of an important case can be to arouse the interest expected public *7 the of those best vicinity, any scarcely qualified will to serve as not have formed some im- jurors or as to the merits of the pression opinion case. This is true in particularly criminal cases. To hold that the mere existence of any preconceived accused, notion as to the or innocence of guilt an more, without is sufficient to rebut the presump- tion of a prospective juror’s would be impartiality to establish an impossible standard. It is suffi- if cient the can juror aside his lay impression or opinion render a verdict based on the evidence Illinois, in Spies presented 131, court. v. U. S. 123 80, 21, 22; 31 L. Ed. States, Holt v. United 8 S. Ct. 245, 1021, U. S. 54 L. 218 Ed. 31 2, S. Ct. 20 Ann. 1138; Cas. Reynolds United States (U. S.) supra. v. rule, however, ‘cannot of such The adoption case, whether, in a given as inquiry foreclose a deprivation works rule of the application without due process liberty life or of the prisoner’s 236, 219, S. California, 314 U. Lisenba v. law.’ of As stated 166, 180, S. Ct. 280. L. Ed. 62 86 the nature ‘whether the test Reynolds, as in law are such formed the opinion of strength of partiality. the presumption . raise . necessarily. of mixed law is one thus presented The question of ‘The affirmative 156. .’ At p. . . . and fact Unless he shows challenger. is upon the issue opinion of such existence the actual the presumption as will raise juror mind of the be set necessarily need juror of partiality, and decided opinion aIf positive aside. ... even formed, incompetent been he would have
been expressed.’ p. As At 157. not been it had though 507, 443, Allen, S. 344 U. Brown was stated 397, so-called 515, Ct. S. L. Ed. constitu- application questions mixed leave facts as found to the tional principles It federal judge.’ with the of adjudication duty therefore, Appeals was, of the Court duty testimony dire the voir evaluate independently jurors.” the impaneled Shoe, Boyd, talesmen to us it appears
Thus keep would White, they stating Britewell and until reading newspaper formed their did not qualify contrary, to the heard they either meaning within "impartial” jurors It of Arkansas. or the Constitution’ Constitution U. S. discharging erred in not trial court follows for cause. four talesmen the appellant because before us error is clearly four on the challenges his peremptory four of used chal- peremptory of his *8 after all involved and talesmen exhausted, show the record to he caused were lenges his chal- to so exhaust been required if he had not talesmen, would have per- four on these lenges who sat on the Burns talesman challenged emptorily jury.
POINT I examining points raised by the appellant, we find no error in the trial court’s refusal to quash the search warrant and exclude the evidence obtained thereby. Both the appellant the state rely on our decision in State, Walton Ark. 431 S. W. 2d (1968), for their on respective positions this point. In Walton we said:
.“. . an While affidavit for a search warrant may be based upon personal affiant, observations of the based, it may also be in whole or on part, hearsay information. When it is based upon hearsay, the magistrate must be informed of some of the underlying circumstances from which an inform- ant concluded that the object of a proposed search was where he said it He was. must be also advised offi- which the from circumstances of the some identity (whose the informer concludes cer disclosed) in- or his is credible be then need not formation affidavit, does not which An reliable. allegation any that affiant affirmative contain knowledge matters personal speaks with in- to show that fails and also therein contained source was given unidentified formation conclusion, been merely suspicion, has belief or probable cause.” to show held not for a an affidavit that while will be noted It upon personal may observation be based search warrant hearsay may in- affiant, on be based also hearsay, upon based affidavit is When the formation. magistrate under- of some of the be informed must lying informant con- which an circumstances object proposed where search was cluded that rule, Walton, as we it in announced it was. he said designed war- simply issuance of search to eliminate is issuing mag- expressed suspicion on mere rants hearsay. The affiants must based on istrate give affiants personal magistrate ob- the benefit of their sought basis, and is on that when the warrant servation magistrate pass the facts on the affiant must hearsay in- the affiant obtained and circumstances sought formation, on that basis. when the warrant goes rule, Walton, no further than as set out in The good justice in the interest of common sense directs any court, play. other inso- this court nor fair Neither *9 determine, that able to has held far as we have been an affiant must prove beyond doubt the a reasonable war- for a search truth of contents his affidavit may by be issued rant before a valid search warrant magistrate. object in the case at bar was a of the search revolving light that red and the affidavit states believing ground “a for officers had reasonable Ray by revolving light, current, owned red DC was light revolving red is now located and that said Glover Ray upon property premises the said Paragould, Highway 1 Glover on County, North of in Greene revolving light Arkansas; and that said red upon county highway in was used this on or about stop by Judy 1, 1969, March a vehicle driven one grounds Evans; and the affiants have reasonable believing Judy Evans killed said by Ray was and murdered on together person that date Glover with other or persons.” concerning Now, the information furnished underlying in their to the officers affidavit as circumstances from which their informant concluded light, was; was red where he said it toas the advice of some of the circumstances from which the officers concluded that the informer was or credible reliable, his information fidavit as follows: the officers state in their af- “That affiants have been informed so an in- affiants, formant known to these informant stating present Ray placed was with Glover at the revolving light time the red in a build- property ing upon Ray the aforementioned Glover.
That informant known the affiants and previous supplied by information in- said proven formant has reliable and accurate and that the affiants have reason to believe that the infor- dependable. mation herein is also reliable and gave That on another occasion informant informa- ring upon person tion that a certain was worn Judy death; Evans at the time of her said ring by Ray that the was removed Glover and in presence of the informant buried at a certain supplied location to affiants and other investi- gating upon officers; that search the location given by ring the informant said was in fact found. That on sup- other occasions this informant has plied concerning information theft of automobiles by person persons when in fact said automo- reported biles had been stolen. *10 Ray the said that state
That affiants further wearing herein mentioned at all times Glover was shoes, trousers, time shirt, at leather jacket, a in- upon Evans said Judy of the killing of the is believed to clothing said information formant’s described; herein located upon premises be evidence contain believed to clothing is said killing.” at case in the affidavit hold simply We necessary it was all magistrate furnished
bar refusing err did court know, him for or exclude warrant search to quash thereunder. obtained
POINT III witness, As to third appellant’s State’s point, Pitcher, admitted that she was Peggy involved civil litigation with the appellant she readily admitted that she disliked him. Mrs. Pitcher and her husband had purchased house trailer from which appellant contents, with its which repossessed Mrs. Pitcher says purchased other parties belonged dislike and not her. Mrs. Pitcher’s appellant for dislike, the reason her have been such might cause that would affect her witness. Perkins as a credibility State, 168 Ark. S. W. Mrs. (1925). Pitcher admitted already her dislike for and we appellant find no error in the court’s refusal to permit appellant to cross-examine Peggy Pitcher she what concerning had been told about her husband and double-dating The offer of on this indicates proof point appellant. effort obvious prove Pitcher’s bias Peggy against Under offer of appellant. Mrs. Pitcher proof, denied that she knew about her anything husband and ap- pellant with double-dating one Alice Cannon and the decedent Judy Evans. We hold trial court was exercise of proper its discretion in limiting of cross-examination scope Pitcher Peggy as to what had been told her about double-dating.
POINT V appellant’s point. fifth There find no merit We objection testimony he was was no to Latham’s appellant ring present when the drew a off decedent’s subsequently wrapped finger appellant when masking tape ring in and buried it at the end of a picture bridge Corning. Appellant concedes that near a depicting Latham, offered in him ring showing buried, was C. I. D. men where the objectionable reception because its would been have testimony which appellant harmless, absent object. testimony appellant does objects Latham’s to which
appears as follows: Ray wrap ring up did Where Glover “Q. in that? body shop.
A. At his package? did What he do with the Q. little pocket. A. Put it in his again you it ever see after Did that?
Q. seeing again. A. I don’t recall it you Ray Did see what did with it? Q. bury bridge up
A. I him saw it at the this side Corning. you picture, you I show here ask Q. examine it? up bridge
A. Picture taken of me at the this side Corning showing where I was the C. I. D. ring men where the was buried. ring Was the
Q. recovered there? was. Yes. It
A. in evidence. Offer Mr. Pearson: Extrajudicial object. statements Howard: I Mr. conspirators confirma- after one of the made improper. conspiracy, tion Objection overruled. THE COURT: *12 Exception. Mr. Howard: hearsay. ground object the of And on the
I further and, accuser, right to face has the defendant testimony here, according done outside to the presence of the defendant. Objection overruled.
THE COURT: Exception.” Mr. Howard: reasoning appellant’s in connec- do not follow
We testimony, objection this as we do his to tion with constituting testimony as “acts of Latham consider the conspir- the termination of the declarations after and acy.” simply to himself testified as what he Latham did. saw and VII
POINT point, appellant’s find no last we seventh give appellant’s refusal the trial court’s error 1, requested was: Instruction No. which any determining involved truth on issue “In case, of numbers witnesses should in this mere your the sole criteria determination. not be credibility you Rather, lack or should consider credibility respective witnesses and the of the of number of witnesses called alleged establish an you solely alone should be fact considered light improbability probability or as to may have alleged witnesses to which fact the testified.” instructions, sufficiently other covered Its content especially follows: as No. Instruction judges of the sole “You are the weight thereof, credibil- and of the case and of arriving a conclusion ity witnesses, at of the you weight to the evidence shall attach to what you witness, into con- any particular will take in the result her interest his or sideration conduct, manner case, demeanor or her his stand, upon testifying as a witness while knowing ascertaining or her means concerning he or she which the facts truth of you sworn witness has If find that a testified. may you point issue, any falsely entirely material as to testimony disregard witness of such testimony only you his or her if all of believe part regard you may give false, to that be disregard you true and believe to be *13 which part may you to be You have false. which believe you any right disregard to believe statement no to may simply sworn he or she have because be true falsely fact.” to some other II, this matter in Point reasons stated For the remanded. reversed and C.
Harris, dissenting. and Jones, J. J. participating. not Fogleman, J. dissenting. I am unable to Justice, Fred Jones, J.
agree by majority with the results reached the in this respectfully case and I first in the decision of the dissent for two reasons. In the place, nothing I find in the record before us nor Supreme States Court
United Dowd, 751, Irvin v. 366 U. S. L. Ed. cited 2d by majority, make the and relied on which should long at bar immune to the rules this court followed case heard of ever Court Supreme States the United before case of Irvin v. Dowd. Indiana tried the second not place, appellant by effect, he any juror for cause. In challenged appel- lant contends that had he not wasted four of his on who peremptory challenges jurors should prospective cause, have excused been under for challenges would have exercised a on a Mr. peremptory challenge but who was Burns who sat not challenged on jury appellant cause. when years age was twenty Evans Judy were body of her still smouldering remains charred her 1966 Pontiac on floor of parents’ discovered in a burning gravel pit which was found automobile Auto- Arkansas. County, a road Greene county off with human together mobile tire and footprints, and other evidence sur- automobile position scene, made prior autopsy, even rounding of her did die as result clear that Judy perfectly automobile, her operation own negligence it ap- make attempted as someone had obviously evidence, even the multiple pear. physical prior pointed unmis- autopsy, skull fractures revealed to sub- veiled effort thinly to a stupid takenly arson, and to the crime of murder a crime merge aided by former cremation all evidence of the destory of gasoline generously applied. ample supply James soon were Clyde Ray ap- Allen Latham and Glover crime of murdering with the charged prehended Evans. Judy before us the above facts are all
From the record knew, known, have juror could any prospective *14 trial, case. At the to the trial this Latham prior in his the murder and explained admitted part knew detail how Glover felt too gruesome Judy thefts, well bur- much about as house automobile others, includ- and arson which glaries Glover witness, Latham explained were involved. ing light he red revolving detail how and Glover used a how Glover highway; on apprehend stop Judy he used road while Judy’s to a little automobile drove using; were Glover he and automobile in the followed how Glover Judy “pecking” automo- in her at started by occupied Judy to the automobile ran and how bile against Glover, protection sought his Latham thought erroneously drunk. Latham to be she whom description by Glover of how gave blow a blow then she how when Judy his fist and with unconscious beat bumper revived, head with an automobile beat her he dead; then, they thought how when jack she was until beating, they was still Glover her heart noticed that by her hair and beat head pulled her her head over remarking bumper jack, at more with the some explained Latham him a bit. that it didn’t bother time gallons request, he, for the four went how at Glover’s days purchased gasoline before several he had part. cleaning purpose Latham automobile body they placed Judy’s upright explained how they accelerator; how foot on the automobile with her pit; gravel automobile into accelerated the then body Judy’s they the automobile and saturated how gasoline. ignited He| gasoline and how Glover with related disposed’, how he and in minute detail Glover They Judy’s purse. divided the loot from of the change small¡ chewing gum. Latham testi- and he chewed the helped blood from Glover clean as to how he fied Glover’s He described how Glover coat. leather black finger Judy’s ring prepared took from and buried fire, they body he led the and how on set her before officers bury ring it. in Glover he had seen to the where participation attempts explain his own Latham physical Glover, by asserting but his fear crime this any testimony prompted de- was he denies that his gree chair. Latham’s of the electric at all his fear fully testimony circumstantial corroborated testimony witnesses, includ- of other appellant’s Randy Ray Glover, own ing that of day year fol- son, old testified sixteen who by Latham, lowing ghastly night’s related work Judy they casually killed father remarked money had not because she missed some Evans and had pay was the nature her check. Such cashed *15 the testi- of committed, was the nature and such crime by mony the state. offered testimony offered appellant heard all of grisly he failed by
against the state him detail everything deny the state’s did he said and that to The burden said and did. testified that witnesses guilty prove as Glover was to that state on the course, was well within charged and, Glover of failing testifying rights own defense. in his in not any testify, to contradict other evidence or offer ap- however, testimony the state’s witnesses of uncontradicted and pellant evidence the state’s leaves credibility except unimpeached such lack of as to ghoulish may a rights such the casual commission attend claim all individuals who crime privileges credibility men; and such lack
of civilized testimony may of an admitted thief attend the accessory such crime. supra, relied Dowd, Unlike Irvin case of any majority, no there is anything jurors, any prospective jurors, heard they Judy’s murder until heard details of at all about the trial of the case. In so at the it from the witnesses they reveals, knew or could have all far the record Judy known, been murdered and was that her automobile; body but the record does in her burned they even knew she had been murdered. not reveal that Dowd, is silent in the case Irvin v. the record Unlike newspapers published bar as what was at opinions. jurors have formed from which the could majority fully agree of this I Glover and the with impartial Glover was entitled to a fair and court that agree majority trial, I do not with Glover and the but did of this court impartial not receive a fair and Glover majority contends, and the trial. Glover overruling appel- agrees, that the trial court erred Ralph challenges Shoe, to the talesmen lant’s cause Wayne Britewell, Lynn Boyd, and Alvin L. T. Jackson gentlemen dire stated on voir of these White. Each *16 or in- to the guilt as opinions had formed they that reading newspapers by of the appellant nocence none in by people general, the case discussed hearing know actually or to purported were witnesses of whom and the The news articles case. about the anything record, are not discussion general of substance gentlemen the court these by questioning but under the opinions aside lay and would could they that stated verdict according render their formed had they court and evidence as law as instructed examination by appellant’s Under at the trial. presented counsel, that it would stated jurors these prospective they change opinion take some they They asked, state, what nor did were formed. they did sit on the jury neither were; opinions their tried. These whom the jurors appellant before discharged appellant through summarily were challenges. his peremptory of exercise contention, therefore, actual is The that appellant’s the trial court committed error prejudicial by causing him to waste four of his twelve peremptory challenges on talesmen who should have been for discharged This contention is conceived and ingeniously cause. it has the ma- expertly presented; apparently impressed of this court. out jority majority points the record to show that if he had not caused appellant on peremptory been to exhaust required challenges talesmen, the four he would have chal- peremptorily talesman Burns who did sit on the It lenged jury. me that if the had been as con- appears appellant Burns, cerned with the as he juror qualifications now he would have at least Burns appears, challenged cause, if for he felt that Burns was not in- qualified, stead of additional asking peremptory challenges not, not, can which the law does give. court and the State, In Rowe Ark. S. W. 2d 887, the first of error eight assignments related to the when, court’s action to serve permitting jurors view, from the point defendant’s answers given on their dire disclosed fixed prejudice, voir position guilt, or were in or defendant’s some to the jury relationship influence action irre- calculated to passing spective the “fixed the evidence. assignment case, opinion” court said: this that some of veniremen said true “While opinions they based had formed tentative newspaper reports upon some one had what accepted they them, all were stated told who solely testimony, guided by the and would be could giving doubts to the defendant benefit all accept- the law There was no error in that ing defines. longer practicable in *17 these men. It is no an intelligent society jurors psycho- to select from a logical or from a stratum informa- vacuum where community tion common to the as is lack- a whole ing.” State, Leggett 393, v. Ark. 227 S.
In 299 W. 2d crime, 59, bar, as in the case at was a sensational assignment relating one. of the of error to the selection jury so was near on all fours with the case at quoting fully justified opinion bar, I feel in from our point involved, in on the as that case follows: apparent record “It is from the that news about investigation the crime and its had been extensive- ly reported press by radio and television. Many opinions veniremen who had formed on the reports court, basis of such were excused appellant jurors but the that four insists whom he challenged should cause also have been re- jected. Each of men these four stated substance opinion case about the had formed he that that required remove his be would questioning man each upon further opinion, but preconceived lay aside could declared also upon law impartially try the case view evidence. by many It is settled decisions that a tentative upon newspaper kind, based this re- ports like, disqualify prospec- and the does not 1280 upon relies chiefly juror. The appellant
tive 165, early State, case of but Polk v. Ark. 45 State, Hardin v. 66 was disapproved decision followed 904, not been 53, and has 48 S. W. Ark. 178, State, 143 Ark. v. 219 Sneed later case. any 278, State, Ark. 1019; 247 Howell v. W. S. W. S. 2d 952.” State, Ark. of Howell the case in the court’s refusal 952, error was assigned
S. W. 2d Mack one L. L. dire examination on voir dismiss in view of the and particularly one of the jurors, were exhausted challenges all peremptory fact Mr. selected. finally the full jury before appellant case in that questions answered asked and Mack was as follows:
‘Q. Mack, Mr. do you have such an opinion
on your mind at this time as would take evidence to overcome it? sir, Yes, I don’t know
A. if the State sup- ports what I have read of the thing, I have that opinion if that is true now. I am open minded on what the newspaper reported, *18 but I have formed an opinion from that. Q. Could you, and would you go into the
trial of this matter with an open mind and discharge any preconceived notion or opin- ion and render your verdict on the facts and circumstances developed in evidence, applying the law given by court, could you render a verdict and disregard any idea you might have?
A. I think I could. Would
Q. you know say you you could? Yes, A. if the evidence it.’ warrants appellant asked: Counsel you you telling at this court Are
‘Q. your opinion present an on time have mind? reports. newspaper on
A. Based opinion would take evidence And Q. part of defendant to remove from your mind? say say I
A. I wouldn’t that. would if presents evidence as State outlined things, press and it would some other take disprove that, other evidence to know what I don’t going the State show.’ The Court then asked: words, In other it would be what
‘Q. the State develops the evidence? Yes,
A. sir. go jury You could into the box Q. free with a open mind? keep A. don’t see I I how could from form- ing reported if the áre facts as press. by the discharge open you are still But
Q. th^t verdict render your mind taking into case, also presents its State evidence, would which do that? all consideration you defense, could include *19 ” Yes, sir.’ A.
In that case this court said: 1282 court to refuse to for the dismiss error was
“It decisions of many cause under for juror 454; State, 40 Ark. court, Dolan v. as: such this 13, 748; State, Ark. 96 S. W. 80 v. Daughtry 472, 582; S. W. 114 Ark. 170 State, v. Dewein 37, State, W. 591.” 158 Ark. S. v. 249 Borland and of information the source attend may Presumptions as was an opinion form may a juror from which State, Ark. v. case of Rush out 238 set clearly Fred Rush was being In that case 149, S. W. 29. 2d 379 Rush, of his Paul stepfather, murder tried a furniture company operated owned “and who venire- examination one voir dire Fort On Smith. to the furniture building he rented a stated that men with an the case employee had discussed and company' as a witness was also listed who of the company case, (the that he venireman) an opinion remove. He also stated take evidence which would the case try aside his opinion could set that he introduced at the trial. on the the law and of the venire- the qualification challenged defendant held that he was qualified. court but trial man erred, this court dis- trial court holding news- formed reading between opinions tinguished the case discussed generally, and hearing accounts paper the case discussing formed as a result and opinions witness, language: in the following a prospective with this court has held that al- “In numerous cases has formed an opinion, a venireman though that would newspapers, and the reading rumor remove, he is if he can qualified take evidence both box and the State give into the jury go base trial and a fair and impartial the defendant introduced in the case the evidence his verdict on State, Hardin v. 66 of the court. instructions 20, 904; State, Ark. 53, v. Ham Ark. 48 S. W. 555, State, 805; 150 Ark. v. West 13 S. W. 2d State, Ark. 80 S. W. 997; Niven W. S. out the venire- There it pointed 644. 2d witness; any Howell v. with had not talked men
1283 952; Leggett 278, W. S. 2d State, 247 Ark. 220 Lauder 393, 59. S. W. 2d State, Ark. 299 v. 227 422, it 96, W. S. 2d State, Ark. 342 v. 233 dale talked venireman that out was pointed a witness. to case, we have and no to cited been have
But we to serve one is none, qualified holding found in the a witness with has talked who on a jury take that would an opinion formed has and case cases two have at least remove. We to Ark. State, 69 v. Caldwell contrary. to the holding 528, State, 168 Ark. 59; 270 Lane v. 322, 63 S. W. the venire- holding in erred court S. W. 974. as a juror.” to serve Laws, man, to be qualified W. 948, S. 448 State, 247 Ark. As v. we said in Stout 710, State, Ark. 454 636, in later Pointer and 2d have to right does not have an accused W. S. 2d selected, an ac but panel from the of his choice a jury im fair and a competent, to only right has cused Stout, in privilege peremp As stated jury. partial se not a right selecting jury challenge tory 2d, Am. lection, rejection. is a privilege Jur. 233. Jury, § must,
I Ias think recognize, everyone intelli- minds gent ideas and form inquiring acquire opinions heard, from what is read and and that practically every citizen is to law-abiding prejudiced varying degrees crime and criminals. against Consequently, se- case, lection of a to a criminal jury try the important is not so much question whether a formed juror has or is prejudiced; important question citizen, is whether when duties carrying out his as a lay can aside his and juror, opinions prejudices fair give the accused a trial. An accused is not robots, entitled a trial before a jury he is entitled to a trial honest before who are jurors intelligent their own enough recognize opinions and prejudices if honest so are unable to enough say they fairly the accused. try impartially majority have overreacted to feel I the. y. Irvin decision Court Supreme United States reached results let Dowd, have supra, as a solemn case stand facts on the the court *21 fol- and applied of law to be and rule rigid mandate set different entirely under an in the case at bar lowed me the ma- words, it appears In other of facts. v. in Irvin decision into the more reading are jority Irvin In the Dowd, to read out of it. I am able than media had the news clear case it is perfectly crime against of normal prejudice the flames fanned were mere opinions where to the point and criminals facts, reason and fixed and established into converted in the even consumed, or process; lost abandoned was words, In other jurors. of prospective the reason kindled a fire of public successfully newspapers and fed then fanned Irvin and against of cold reason could until no amount cool its flame the life of Irvin effect, less than nothing searing it. was the situation Such extinguish could case case, the situation in the such was not Irvin but at bar. case, in the Irvin it I the decision
As view well deserved indictment scorching, a actually media, and abetted a sheriff and by the news aided Irvin to the extent pre-trying attorney, prosecuting trial, before not only that he stood convicted Indiana, which he but for charged crimes with misdemeanors ever committed by crimes and all syllabus him of which he was ever accused. The Dowd, sets apart from the v. poles in Irvin alone contains statement: following case at bar for it trial, “At the the jury panel consisted of 4S0 per- sons; of these were excused for cause as having fixed opinions as to the guilt of petitioner; the 12 who finally served on the ad- jury mitted they thought petitioner was guilty, that, but each indicated his notwithstanding opin- ion, he could render an impartial verdict.” (Em- phasis added). he was six murdering people; was accused
Irvin reached the and his case in Indiana convicted tried and The build by certiorari. Court Supreme States United Irvin newspapers through of prejudice up Dowd, average person much further than went media would go. news that responsible would conceive Clark, it was alleged, Mr. out As pointed Justice trial, opinions that curbstone for a new in the motion on the recorded newspapers solicited and were guilt, as to the only appellant’s streets and public receive. A should but even to what punishment headlines, articles, cartoons barrage newspaper during were unleashed against appellant pictures trial. news six or seven months preceding back- details of the appellant’s stories revealed the when reference to crimes committed ground including *22 his for arson almost a convictions 20 he was juvenile, for and a court martial burglary years previously, He of the war. was accused charges during on AWOL announced his The headlines a violator. being parole identification; he faced a lie detector police lineup crime, and the of the scene at test, placed had been re- petitioner but were solved murders the six announced later newspapers The to confess. fused the six murders and the fact of his in- confession to in dictment for four of them Indiana. They reported if a plead guilty promised 99-year offer petitioner’s sentence, the but also determination the other hand to secure the death and that penalty, prosecutor modus burglaries had confessed petitioner (the of robberies was to that of compared these operandi the dra- similarity noted). story the murders and One of the a sheriff to devote his matically relayed promise life to execution the state of petitioner’s securing where the was to have Kentucky, petitioner alleged murders, of six if failed to committed one the Indiana as do so. Another article characterized re- petitioner without conscience but also as having morseless and of doc- panel been found sane by court-appointed was In of the stories described many petitioner tors. six,” a of violator slayer parole as “the confessed artist. Petitioner’s court-appointed fraudulent-check “much criticism received as having was counsel quoted out, it was pointed Irvin’s counsel” being over be would attorney, excusing by way to represent he refuse should to disbarment subject car- newspapers the trial On day Irvin. before murder admitted the orally that Irvin story ried the in as well as “the robbery- the case) of Kerr victim (the Holland; of Mrs. the murder murder of Mrs. Mary slaughter in and the County, Sailer Posey Wilhelmina Duncan Henderson members of three family trial, of Irvin’s day the second On Kentucky.” County, of the jury, was devoted to selection which often bitter “strong feelings, newspapers reported surface,” “the ex- and that rumbled to and angry, family murders —three one multiple which tent was em- the area throughout —have aroused feelings of the 35 prospective jurors when Friday phasized biásed holding pretrial were excused questioned, were feelings .” few de- days . A later opinions. and bitter as pattern deep prejudice scribed “a comments, as fitter.” Spectator former against pipe is made mind “my were printed by newspapers, “he hanged.” “I think he is should be guilty”; up”; almost v. Douid in Irvin news reporting bar, crime itself in the case at as as the revolting result I no with the reached in have certainly quarrel we Irvin facts that case. Irvin have only under the media, and the news through the facts reported *23 at the facts as the case bar we have testified only at trial An additional import- witnesses of case. following Irvin in the out in stands ant distinction language: 2,783
“An examination of the voir dire record page or almost 90% of jurors shows that prospective of (10 on the members point those examined whether or they were never asked had panel guilt entertained some to opinion as any opinion) mere to ab- suspicion in from intensity —ranging that, if they A number admitted certainty. solute he in the dock and in in place were the accused’s would they with their opinions, jury theirs him on a jury.” not want Irvin in v. point and decisive important case at from distinction
Dowd, as further as well Dowd, follows: as v. Irvin in bar, is stated and bitter of deep prejudice’ the ‘pattern “Here community, to be throughout shown present California, clearly v. 343 U. S. was cf. Stroble of the voir dire examina in the sum total reflected jurors placed jury tion of a majority was Eight petitioner out of the thought box. guilty. . . . Where ac one’s life at stake —and is of human the frailties nature —we counting that light say the circum only can stances here the finding does not impartiality standards. Two-thirds meet constitutional that was petitioner guilty had an opinion jurors cir familiar with the material facts and were involved, other the fact including cumstances him, so far some going murders were attributed it would take evidence overcome as to say said he . . give, their belief. ‘could not . One he of the doubt is the defendant the benefit had a Another stated that he ‘somewhat’ innocent.’ No fixed as to petitioner’s guilt. certain opinion that he doubt each sincere when said juror but would be fair and impartial petitioner, such a declara impact requiring phychological its Where tion before one’s fellows often father. times, so admitted such many prejudice, so many, be little a statement can impartiality given added). weight.” (Emphasis Dowd, Irvin the court v. indi- my result have reached a different probably
cates would such we the facts in that case been have States, United v. Reynolds at case bar. Quoting Dowd, in Irvin 145, 155, the states: court 98 U. S. *24 however, “It be jurors is required, 1288 involved. and issues of facts
totally ignorant swift, and diverse widespread of days In these communication, can an case important of methods in the public interest of expected to arouse the be best of those vicinity, scarcely any quali- some will not have formed jurors fied to serve as the merits of the case. as to or opinion impression hold in criminal cases. To true This is particularly notion any preconceived mere existence of accused, of an without to or innocence as the guilt more, of presumption sufficient to rebut is be estab- would impartiality juror’s prospective is if the It sufficient lish standard. impossible opinion lay impression can aside juror based on the presented a verdict render Illinois, 131; U. Holt v. v. S. court. Spies States, 245; v. United Reynolds U. S. United States, supra. rule, however, ‘cannot
The of such a adoption whether, case, in a given as inquiry foreclose of rule works a deprivation the application due life or without liberty process of the prisoner’s 219, California, Lisenba v. U. S. of law.’ 236. the test ‘whether the na- As stated Reynolds, formed are such opinion ture and strength . . . raise of necessarily as in law the presumption is one of presented thus partiality. question . .’ 156. ‘The affirmative mixed law and fact. At p. the issue is Unless upon challenger. of such an shows the actual existence the mind as will raise juror presump- need not necessarily tion of partiality, juror be . If a positive set aside. . decided opinion formed, have had been he would been incompetent At even had not been expressed.’ 157. though p. 443, Allen, As stated in Brown 344 U. S. mixed or the the ‘so-called questions applica- tion of constitutional facts principles found leave with the fed- duty adjudication was, therefore, the duty It eral the Court judge.’
1289 the voir dire evaluate to independently of Appeals testimony of the impaneled jurors.” or even authority, suggestion find I fail us, Dowd, facts in Irvin justify v. that would bar, we have procedure at abandoning the case cases, as a adopting followed in our own supra, results law, reached rule of procedural Court on the bizarre facts Supreme United States Indiana different and to the foreign case completely continue to follow the facts the case at bar. I would followed, we have heretofore and continue to in- rules of the case, in each given quire whether application rule works a life or liberty deprivation prisoner’s law. In I am bar, case at due process without convinced it did not. trial on all
I would affirm the court points. BOSNICK, Franklin David Jr. The STATE of Arkansas 455 S. W. 2d delivered Opinion June