*1 208 nothing in evidence to warrant can find
venture. We voluntary giving involun- on and of an instruction manslaughter. tary after the shows that The record
POINT III. into court and it returned some time deliberated had requested upon degree murder. Where- second definition of given proceeded to read the instruction the court explain degree the difference and murder on second between degree degree murder. This and first second procedure approved in Harrison v. (1940), fur- has 138 W. 2d overruling authority. such no reason for our
nished argues that the trial here POINT IV. testify permitting witnesses to court erred appellant four Orval, shot told them that he shot Clarice without merit shot himself. We find the contention May- (1)^The testified that reasons: witnesses for two saying, he was and knew what field was conscious properly brought alleged (2) was not error trial. in the for new forth motion Affirmed. v. STATE of Arkansas Lloyd JOHNSON
William 458 S. W. Opinion delivered October *2 Warner, Warner, & Ragan Smith and R. Troy Doug- hs, for appellant. Attorney Purcell, General, Gibson, Sam Asst. Joe
Atty. appellee. Gen., for charged in- Holt, Frank Justice. robbery formation with the crime was convicted charge by punishment of that which fixed his years penitentiary. fifteen Since evidence disclosed that used a firearm in the commis- robbery, imposed upon him, sion of the the trial court pursuant (Supp. 45-2336, to Ark. Ann. §§ Stat. -2337 1969), years consecutively an additional seven to run fifteen-year jury. with the set From the judgment upon separate these two sentences comes this appeal. *3 Piggly Wiggly
The state’s case established that the approximately Food Mart in Fort Smith was robbed of by men, wearing $3,660 army fatigue pants, armed two one of whom was jumper
a blue denim work and a cowboy flight white hat. Their from the scene attracted bystander the attention of a who took down the license get away information, number of their car. This to- gether description with a of the armed robbers two employees store, police. was furnished to the police report dispatched describing A radio was then the robbers and their car—a 1968 or 1969 black over yellow Chevrolet, license number A state BNI-247. trooper, observing Highway this vehicle on 64 about Ozark, seven miles from radioed ahead to Clarksville. up, stopped. A road block was set and the vehicle was open replied trunk, The driver was to asked but that the car was a rental unit and that he did not have key. police thereupon proceeded a trunk A officer drive the car toward Ozark where the trunk could be opened. way, weight On the officer a felt shift the back end of the car and heard noises from pulled road, stopped of over to side trunk. He car, and went back the trunk. He and the local (who joined him) occupant, any sheriff had commanded they to come trunk or forth would shoot into the trunk. The apparently open then forced was from the inside occupants appellant and a confederate and emerged. description men fitted the rob- These pistol A loaded bers and were arrested. was removed money bag, man; hat, $3,657, from each a a eyebrows, false sideburns and cosmetics were recovered from inside the trunk. as one of was identified trial objects robbers, of most found in the trunk were introduced into evidence. reversal, tangi
For
asserts that the state’s
ble evidence
illegal
was the fruit of an
and seiz
search
erroneously
and,
therefore,
ure
admitted. We do not
agree. A determination of the
of
lawfulness
a search and
particular
seizure must be made from the
facts and cir
1057,
Ark.
State,
v.
case.
of each
cumstances
Jones
may
course,
search,
made with
of
be
441 W.
out a warrant
S.
2d
arrest and
to a lawful
is incidental
if it
State,
contemporaneous
substantially
Moore v.
therewith.
(1968);
S. W.
Tygart
Ark.
244
248
bar, then,
the case at
W.
In
Ark.
2d 225.
contingent upon the law
issue is
this
a
resolution
was is
appellant’s
no warrant
arrest. Since
fulness
if there
lawful
appellant’s
was nevertheless
sued,
arrest
justify
An arrest without
it.
probable cause
arresting
has a reason
officer
where
is valid
warrant
person
com
grounds
has
the arrested
believe
able
(Repl. 1964);
felony.
Ann.
43-403
§
Stat.
mitted
821, 415 S.
*4
Ark.
W. 2d
State,
Read v.
242
in a de
own facts
Again,
rest
its
must
case
each
probable
existed.
cause
whether or not
termination of
Supp.
(W.
314
D. Ark.
F.
Theriault,
States v.
United
descrip
report reciting
1967). police
a sufficient
radio
prob
grounds upon
adequate
to base
which
tion can be
States,
See Theriault v.
United
an arrest.
able
401 F.
for
cause
1968).
(8th
is to be
Probable cause
Cir.
2d
police
the
collective information of
from
evaluated
department
merely
personal knowledge
on
not
arresting
v.
State,
officer.
supra;
Williams
Jones
(D.
The
States,
F.
C. Cir.
v. United
information must
but
necessary
2d 326
suspicion,
more than a
establish
mere
proof
quantum of
be tantamount
it need not
State, supra.
v.
support
conviction.
Jones
ground
probable
Simply
stated,
is a reasonable
cause
strong
sufficiently
by
supported
suspicion
circumstances
in themselves to warrant a cautious man to believe the
felony.
accused
v.
committed
States,
Theriault
United
supra;
State,
850,
v.
410 S.
W. 2d 766
Jackson
(1967);
State,
Russell
v.
240 Ark.
Appellant also per- contends that the court erred in mitting (the certain of the state’s exhibits is un- record precisely clear here as to what jury) was in view of the displayed prosecutor’s to be prior on being table evidence, offered particularly since all the items on display subsequently were not admitted into evidence. While practice, we do not condone hardly this we can assign reversible error to it in the circumstances. Even in the more extreme situation where exhibits are intro- duced into evidence and later excluded because of a failure to connect defendant, them with the reversible error will not be declared if the verdict was not affected challenged Thompson evidence. 249 Ark. only Here, exhibits not intro- 458 W. eyebrows duced into burns were the evidence false and side- and the From an observation cosmetics. appears particular court, trial it that these items were jury. any rate, At never visible was later actually only admonished to consider mitted; and, pellant’s guilt ad- evidence *5 reviewing ap- record, in it is clear that sufficiently by ample was established com- petent evidence. prejudicial
Appellant error asserts that next prosecuting attorney commented when the committed during appellant argument that was from Illi- closing apparently Ap- made his from crime. and livelihood nois denied, pellant’s request for a new trial was only jury to consider the evi- court admonished arriving at court in a verdict. The then stated to dence attorney: the defense invited comments of this “[Y]ou’ve your in and in statements to the nature fairness prosecuting attorney you.” is entitled answer We often occasion to note have had that trial court has arguments supervising wide of counsel discretion juries unless before not reverse will that this court is a manifest abuse discretion shown. Parrott v. Petty State, 924; State, 439 S. Ark. W. 2d Here, no abuse W. Ark. 434 S mis- to declare a trial court’s refusal in the manifested trial. urges that his also conviction should be according attorney because, him, his trial
reversed motions; failed to file certain failed to make sufficient objections exceptions; and otherwise failed to con- adequate always possible It is duct an defense. almost performance criticize, fact, attorney after the of an in matters which involve elements of discretion and upon competent judgment might which counsel hon- 28, 444 W. estly disagree. Barnhill v. not substantiate record does review 2d 97. inadequacy United Cross v. See of counsel. contention of 1968); (8th United States, States, Mitchell v. 360 787 Cir. F. 392 259 2d 2d contrary, (D. To Cir. C. F. appears benefit of effective had the it assistance of counsel that
in the case at bar. the addition Finally, the contention we come seven-year trial court violated of an extra rights. this we must With appellant’s constitutional validity, not deem it Although we do agree. of doubtful constitutionality pass necessary here to 43-2336, -2337, 1969; applicable §§ [Act statute *6 We consider 1969)]. (Su'pp. only -2338 the application of this to case. present act Section 43-2336 provides court, discretion, in its that trial may an impose added sentence of to seven up years upon anyone con- victed a utilized a firearm in its felony of who commis- sion escape or therefrom. Secdon establishes 43-2338 aof to take a right separate appeal from defendant However, such an sentence. added the act provides “* * * that only question the sole be decided such shall be whether upon separate appeal the evi- a finding dence warrants that the defendant actually * * bar, a firearm In the case at employed the in- did not a formation that firearm separately allege was in of udlized violation Act of The information statute, only was premised upon general robbery statute, the terms of this latter (Repl. By 41-3602 § or of the manner of the force mode intimidation not robbery. the crime of Although material evidence was adduced that appellant committed crime while specific armed with a no pistol, finding was ever made to this effect which jury (before the appellant chose his to have inasmuch as this particular tried) .case issue never presented it. The trial court merely the evidence and its considered made own determina- firearm, tion fact or of of to the use a “finding” of thus his to trial divesting appellant It right by jury. is also in quite probable jury, assessing ap- at fifteen pellant’s punishment took into years, account of evidence his use of a firearm. See Smith 1041, 110 194 Ark. S. W. In 2d 24 case bar, the state’s argued counsel jury, properly so, of the use the firearm and asked for a substantial statute, punishment. general The relied robbery information, for provided from penalty three to twerity-one years imprisonment. The sen- jury assessed a tence of fifteen the trial years. By judge’s independent of afi additional imposition penalty, is well twice for the likely being punished same offense. Fur- thermore, II, Article Section 10 of the Constitution of an the State Arkansas accused guarantees the right to a “to trial and be informed of the nature and him cause of the accusations and to against copy have a VI, States also Amendment United Con- See thereof.” availability consider the bill Nor do we stitution. of infirmity. particulars of this constitutional curative infringements outlined constitutional above For the *7 43-2336,-2337, of -2338 of application §§ [Act in the portion judgment bar, of the case at that 1969] seven-year penalty imposing on added an must It is so ordered. and dismissed. be reversed part; part. in in reversed Affirmed George J., Smith, Rose concurs. C. J., J.,
Harris, Fogleman, would affirm the in its entirety. judgment concurring. agree George Justice, Smith, Í Rose imposed by seven-year sentence the the additional
that trial clearly judge were set aside. must There two be. charge First, procedural in the court below. defects robbery by of firearm should been the use a have of satisfy information, constitutional included in requirement be informed of the nature the accused that against Const., Art. § him. accusation of the robbery thing charge simple is not the same as a of any robbery by firéarm, charge of a the use more of thing charge charge of is the same a assault than a deadly weapon. Secondly, with a of assault court jury away from the the matter not have taken should imposing under Act of an additional of quite (Supp. 1969; Ann. It is § Ark. Stat. 43-2336 employment jury possible of the considered that fifteen-year fixing sentence, in which in firearm punishment judge’s imposition of a second nial case the prohibition against violated the same offense for the jeopardy. double majority opinion, however, disagree in I with the we, pass upon should in this I believe that
that instance validity it to be con- hold Act and should the stitutional. argued is in the briefs and is
The issue of the matter of public interest in the administration is cer- the state. It almost a throughout law criminal act will be eventually validity that tainty no There is reason good in some future case. before us make when so we doing for our decision deferring reversed and needlessly cases to be it for other possible retried. needlessly merits, in Act challenged provision
On an additional permits is that clause which period confinement, fire- be imposed to seven up years, arm "in the discretion court.” sentencing cases such involves a charge disputed It argued that to a of fact that must be submitted rather question than to a judge. me "the statutory phrase,
It seems to court,” be should construed to refer either sentencing *8 may to or to the case be. Ordi- jury, the judge case, in a fixes criminal judge narily if are jurors but do so unable judge may if is or the case tried agree punishment agreement jury. without in Arkansas “court” ordi
In criminal trials In that situation composed is narily judge jury. been has statutory frequently reference court alone, is held to refer if that what Road Dist. No. 4 v. 313 really Frailey, statute means. 568, Ill. 145 E. Missouri v. N. 195 Pac. (1924); Ry. 404, Merrill, 40 P. v. (1888); People Kan. Barrett, 56 Hun 9 N. Y. S. Holland (1890); Dicks, Co. Okl. P. Banking court,” In phrase, the case bar the “the sentencing The has no established in the law. meaning legislature, however, meant the term. It obviously something be me that the statute should construed plain seems either or to the is jury, to refer whichever judge In case. that view the law appropriate particular constitutional, I so hold. would