*1 887 by engineering of meth- determination ods, digging, elevations locating underground utility lines, even staking building corners, of lot portrayal things plat, graphic on a these gross, permanent are, or in nor in item neither They may be, nature construction. all preliminary are, to, doubtless and in aid even- they tual construction. But are not in themselves construction, may which, fact, never occur. they permanent, Neither ing are lot arid build- lines changed. physical locations And the locating utility though requires digging, lines, improvement is no in itself. engineering performed
The extent of the case at bar is services basically planning and not construction meaning within the As this Act. we said Clark v. Co., General Electric 243 830 420 2d (1967), preparatory operation.” Any it was "at most a change to broaden further the terms of this statute legislature. addresses itself to the ruling respects The chancellor’s is in all affirmed. Dewey Ray MURRAY v. STATE of Arkansas 5487 W. S. 2d
Opinion February delivered February
[Rehearing denied 1971.] *2 Knox for Kinney, appellant. Purcell, General; Attorney Wilson, Mike Asst. Joe Gen., for
Atty. appellee. Dewey Ray Murray, Harris, Chief Justice. Carleton herein, was appellant convicted first de- his fixed gree, punishment at by death electrocution in accordance with the verdict Ark. Stat. Ann. jury’s rendered, From the so (Repl. 1964).1 judgment 41-2227 § appellant brings this reversal, For appeal. four points are asserted, as follows:
“1. The lower erred in court its refusal to in-
struct on second degree murder the other degrees homicide.
II. The lower erred in refusing permit
Counsel for appellant argue was not of death.
III. The lower erred in refusing instruct
the jury upon circumstantial evidence. 1 Actually provides Section when one receives death penalty, hanging. it shall carried Ann. out Stat. (1964 Repl.) changed provide the law electrocution. allowing intro- lower court erred IV. inflammatory photographs of duction ad- was of death the cause deceased when mitted.” Wayne Danny Murray, reflects that
The evidence McKay, Bosnick, Bosnick, were Jr., Franklin Franklin High- Grocery robbery Gatteys’ in a Store involved way Hughes, Arkansas, Mor- when south J. Jessie Testimony gan, police officer, Norris was killed. Morgan’s director, was Hodge, death funeral by multiple gun or four shot wounds—three occasioned six caliber wounds. caliber .30 wounds .22 operates husband, Gatteys, Joyce with her Mrs. who *3 grocery to, referred in the late afternoon testified that Jr.) (Franklin night early 31, 1968, of December David caliber) (22 pistol the store a Bosnick entered and fired candy hitting husband, her some at back1a bullet as later identified men, store. Two other McKay, Murray Danny Wayne Dewey Ray then came and Edwards, “long guns”. barreled in with James “sweep-up” Bosnick boy, and lock the door was told to go Gatteys back. to the to instructed the and Edwards (which Jimmy door Vance, to the farm came a worker Gatteys signaled open) outside, Mrs. from witness, According Bosnick to him and he left.2 get bag money paper put from the told her to and put register cash in it: he also directed that she change. money Gatteys Murray also demanded and Mrs. got appellant took silver halves and old also coins; some sweep-up boy’s wallet, the threatening wallet and her husband’s taping husband,
her hands. and his About time, a voice that there was a knock on the and door clearly Gatteys, de “Mrs. is Bosnick said the law”. “Well, B.’J, care directed clared I’ll take S. and Gatteys open stated that Mrs. the door. The witness complied, her, and went when Bosnick shot over out she Gatteys 1a Mrs. saw few minutes all defendants within a after they officers, them had been identified custody taken into by the as the robbers at that time. 2 Edwards slammed the door closed as Vance started enter. porch, firing pistol. onto the Re- several shots with his just turning, son-of-a-b...., he one said “I killed Murray guess “Well, I kill another one.” stated I go job here”, I better out here and finish this off out long gun.3 door, and Gatteys went out with a barreled Mrs. fired, heard more shots ran intruders out of the room. testimony Gatteys’ Mrs. Edwards corroborated James
up shooting. time said when Bosnick to the of the He shooting pistol, knelt on the back in he came after Jr. just spent cartridges said, trying eject “I floor got enough man, me if I to kill another.” killed one let see commented, said at this time Edwards job,” go “Well, that he had I’ll finish this out and rifle as he went the door. out Jimmy Vance told how the store door was slammed suspi- in his face Edwards and stated that he became cious and notified his radio to the law. boss call manager Helms, farm for Shannon Brothers En- Wv J. terprises, Gatteys Grocery located, the farm oh is Morgan officer walk around toward the residential saw part building pistol and heard shots. Then some- one, bégan firing arrived, him. more at After officers Morgan lying steps leading dead, saw left living quarters. Trooper Bob testified that he Self Trooper Hadaway, riding together, received call ad- *4 vising robbery place Gatteys’ that an armed had taken at Grocery upon arriving, The( direction, Store. officers in started that and convertible,
observed a 1959 Chevrolet they pulled With three white inmen it. Self stated that as car, subjects high in powered front one the had a (it rifle aimed across the back of the front at them seat developed Murray); they got that man this was out custody, lying car and took four men into men one of the on the back floor board of the son of the Arkansas State Police Criminal D. convertible. W. David-
Investigation Department Morgan’s body arrived while still in was yard. suspects He talked each of with at that time and appellant’s immediate statement was he fired neither pistol supporting testimony nor the rifle. Other was long
3 The gun barreled was a rifle. 30-30 necessary this state, to detail it not is offered evidence determining appeal. in age, Appellant, year was that he testified honorably high graduate dis- and had been school military January 1966; he from service Pineville, employed by Park Woods was Products Bosnick, Sr. talked He said that Franklin Louisiana. robbery. participating testi- His other three into mony substantially Mrs. that of not different from is Morgan Appellant Gatteys door. on the until knocked thought might Bosnick. he be Franklin stated that He then heard a first firing, outside,
pistol David went pistol rifle him the 30-30 handed the and took Bosnick empty, him; it was from Bosnick fired the 30-30until gave Murray rifle not fire the it back. stated that did any time. at appel- point reversal,
With reference to first lant instructed contends that trial court have should provi- degree pursuant the sions of state, on second (Repl. 1964). Ark. The Stat. Ann. § 43-2152 citing (Repl. 1964) con- Stat. Ann. charge tends that was amended to information “felony State, 160 Ark. murder” and that Clark v. under (1925), decisions, and other similar except required any degree was not instruct on murder; first that of- nothing. fense, or attorney, prosecuting filed information setting
after mitted, com- forth where and when the offense was Murray of the crime
accused others “unlawfully, they wil- in the first in that murder fully, feloniously premeditation and delibera- after aforethought assault, kill, tion malice did their by shooting Morgan him a fire- with murder Jessie J. arm or firearms”. instructing jury,
In informa- read the *5 tion been and then added the has “and information allege killing the amended to ‘while the occurred perpetrate perpetrating attempting to defendants were or dignity robbery, against peace and of the the crime of the ” original (amending record, The State of Arkansas.’ transcript) clearly in reflects that was done chambers case. before the ever selected the trial of the for attorney he The stated verbally Prosecuting Attorney object desired to charging degree “to the during him first trial with course of robbery. Now, murder in commission of get argument, argue when we to alleged final can Information, in law he’s under the as charged by continually repeated- Court, as but trial, ly, charge opening statements and the course verbally charge than him with a other murder grave error, specified by as and be a the Information would requests defendant so instruct”. Court attorney prosecuting proof fact, “I if the stated think says shows, the first law what raising constitute, that, shall if I like to he’s would perpetrated robbery’ amend upon ”. ‘comma Where- permit said “The will Court amend- charge ment to the Information to this defendant with committing perpetrating or the crime of murder while attempting perpetrate robbery”. Objec- the crime of exceptions tions and were taken order. court’s being 43-1024, Ark. Stat. Ann. Initiated § Measure provides 1936, 24, 3,No. as follows: prosecuting attorney “The attorney repre- or other senting State, may court, with leave of the amend an indictment, form, as to matters of file a bill particulars. no amended, But indictment shall be nor bill particulars filed, change so as to the nature of the crime charged. or the of the crime All particulars amendments and bills of shall noted record.”
What is “the record”? In
Ark.
Silas
quotting
case,4
an
we said:
earlier
2d
Allen,
4 Bakerv.
893 any pleadings, ex- proper includes record “The summons, showing thereto, service statement hibits judgment, preceding of court order material trial, order over- itself, judgment for new motion appeal.” grant ruling same, necessary itself be not that the Information It was only necessary amended, of the court that an order simply if and it dictates be made is sufficient court Barg reporter. Lane, v. In Smith & the order to court State, Ark. situation arose 2d analogous. opinion consider reflects the fol that we lowing: say quash
“Appellants their the in- motion dictments have been because the Court’s should sustained affirmatively or records did not show that the minutes indictments were of the Grand open presence returned Court Jury, it nor was of the shown that twelve jurors secondly, legal indict; and, voted to there was no presented Jury upon evidence could base true bills. to. the Grand which open The indictment was indorsed. ‘Returned into presence Jury, Court, in the of all the the fore- Grand thereof, day October, man and filed th this 17 1949’. passing Judge In ment on the motion state- Harrison dictated a Reporter, Court substance of might well have been taken from the docket.” judge simply to,
The statement of the was referred Jury gone report- open that the Grand had into court ed the two indictments. This held that the trial correctly quash. denied motion to
It will not be observed that did the amendment change the crime nor the nature permissible accordingly entirely offense, of the and it was for the be made. Lee amendment to See course, 315 S. W. Of there was no element 916. 2d surprise appellant was since familar with the nature charged, crime with other which he two ever, already tried; at having had been nor defendants any requested follows time, It a Bill of Particulars. in this contention. is no merit there point appellant’s we find merit Nor do Murray in stated to for chambers Counsel reversal. *7 jury argue the planned that to the he to the that court guilty stated: The court of death”. was “not defendant jury argue proposes the to to for defendant “Counsel they fire a shot did not the defendant if believe that that guilty the they may of deceased, find him not ‘then at the permit for the penalty.’ counsel will not The court death defendant to language, it is con- argue because in that The trary law, it. Court as the Court understands they argue, to, if permit that if he wants to will Counsel deceased, that, shot at the find he did not fire a fatal that guilty, although the law he be considered would under shot, have it fire a should at the same time if he did not receive, bearing punishment that should some on the respect say anything in that to that wants and he penalty’ counsel guilty using can, death of the words ‘not but not guilty a of the defendant is not found because thought saying, penalty.” Further, I “The is not plain my opening statement, that counsel I made it for the defendant ment that he desires that the defendant any argu- may
may argue, put forth not receive should saying penalty, he should is that death the Court the but penalty.’ guilty of the death the words ‘He is not not use may, you argue, you anything you Now, use want but to ‘you the of find him not terms the words and argu- says improper penalty.’ that is death The Court ment.” was, course, It was within of correct. they
province jury give imprisonment life if so provides punishment desired, statute charged, guilty, for the offense if is either death found imprisonment. life electrocution or refusing jury There was no error in instruct upon “felony circumstantial evidence. In murder” a charge, necessary elements for conviction are the perpetration attempt perpetrate felony,5 killing course, the during occurring the crime. Of course witnesses, even from the state’s direct evidence Morgan killed appellant himself, established words, robbery. during perpetration In other actually Murray fired necessary to show was not matter, Morgan. we have For that killed the shots that give on circumstan- instructions held that the refusal wholly upon depends the case tial evidence even where already fully evidence, if the has error court upon is not such credibility correctly and witnesses, instructed presumption of weight evidence, State, 184 innocence, Ridenour and reasonable doubt. given were There 43 S. 60. instructions W. 2d objection. case instant without allowing Finally, it is asserted that the court erred deceased, photographs the cause introduction of being times of death admitted. have held We numerous *8 proper photographs itself directs that the to the discretion of admission recently court, as the trial and as
of State, 1, 1970, v. photographs we held in Franklin Bosnick June 311, Ark., 454 where these same S. W. 2d evidence, no been abuse were offered that there had into permitting be intro- them to of discretion the court case, Likewise, we find no in this the facts duced. under of discretion. abuse
Affirmed.
Byrd dissent. JJ., Holt, dissenting. performance In the Conley Justice, Byrd, my pleasure reversing duties, of I find no a criminal a vi- case when the cious is akin to that of accused’s conduct though requires beast, trial. even the law a new society, Believing, however, as between an individual fairly impartially applied the law be should undertake, respect personalities, without I without 41-2205, 5 This offense (Repl. is defined in Ark. 1964). Stat. Ann. § statute, included, provisions Under the of the only all felonies are not arson, rape, robbery, burglary, larceny. portion my disagreement pleasure, with to show holding majority to instruct that the failure of the on second view degree not error. murder was Stat. Ann. is Ark. involved here of the statutes One provides: 1964) (Repl. § 43-1024 prosecuting at- of indictment. —The “Amendment State, representing attorney with torney or other indictment, may as to court, amend an leave of the particulars. form, bill of file a matters of par- amended, nor bill shall no indictment But change crime filed, as to nature so ticulars charged. All degree charged of the crime or the particulars be noted shall bills amendments and record.” that, provides “no It will be noted that statute particulars amended, filed, nor bill indictment shall be charged change or the the crime so as to the nature of case, charged.” first Bosnick In the the crime we Bosnick 2d pointed here involved out that information “premeditated murder” as “class of known murder” jury on fail and that it was error to to instruct murder. “premeditated The distinction between murder” “felony being through interpre- murder” came into ap- tations of this In court. the Revised Statutes proved by legislature against 10, 1838, March “offenses *9 persons individuals” divided into MURDER (Re- and MANSLAUGHTER. Murder was defined as I) I, Chap. Statutes, Ill, XLIV, vised Div. Art. Sec. “. . . killing being, peace the unlawful of a human in the aforethought, expressed with malice either or implied.” only penalty (Chap. XLIV, was death 7.). Ill, I, Manslaughter (Chap. Div. Art. Sec. was defined 1) XLIV, Ill, killing II, Div. Art. Sec. as “. . . the unlawful being, express implied, of a human malice or without penalty and without deliberation.” The fine was a of not imprisonment $1,000 $10,000 less than nor more than and exceeding years. by ap- Subsequently not proved seven an act legislature provided: 17, 1888, the
December modifying correspond Code, “An Act the Penal Penitentiary. with the establishment of a by Assembly Be it enacted the General the State perpe- Arkansas, that all murder shall be by poison by by lying wait, trated means of or in or wilfull, malicious, deliberate, other means of and premediated killing, or which shall be committed in perpetration attempt perpetrate, of, in the or rape, robbery, arson, burglary, larceny, or shall be degree, deemed murder the first and all other murder shall be deemed murder the second de- gree; murder, shall in all cases accused, conviction of verdict, find their whether he be of murder in the first or second degree; guilt, if the confess accused his the court impannel testimony, shall and examine and the de- gree jury. of crime shall be found such per- every enacted, SEC. And be it 2. That further degree, son convicted first as accessory murder, before the fact to such shall suffer by hanging by every person neck; death degree, convicted of murder in the second shall be undergo imprisonment public sentenced to jail penitentiary period house, for a not less than years twenty-one years. five nor more than enacted, SEC. 3. Be it That whoever shall further voluntary be shall manslaughter, convicted of the crime of undergo imprisonment jail peni- in said tentiary period house, for a of not less than two nor years; every person more than seven who shall involuntary manslaughter, be convicted of shall imprisoned jail penitentiary house, in said period exceeding not twelve months. . .” years the now Over the the clauses in the first section of separate as That section act became codified statutes. *10 as follows: appears Annotated in Statutes Arkansas DE- per- IN FIRST MURDER § “Ark. Stat. 41-2205. be which shall All murder DEFINED CREE by by poison, lying wait, in or petrated or means of by wilful, deliberate, malicious other kind of premeditated killing, shall be com- or which and mitted attempt perpetration in of or larceny, robbery, rape, burglary perpetrate, arson, or Dec. first deeree. [Act shall be deemed murder l(lst clause), Dig., p. 121; 2343; & M. 1858, C. § 17, § Pope’s Dig., 2969.] § DE- IN SECOND MURDER
“Ark. Stat. § 41-2206. murder All be deemed GREE. other murder shall clause), (2nd degree. 17, 1838, 1§ Dec. second [Act Dig., p. Dig., Pope’s 2344; 121; § 2970.] C. § 8cM. MURDER “Ark. Stat. CASES—DE- § 43-2152. jury FOUND BY GREE OF OFFENSE JURY. murder, shall, in all cases of on conviction guilty accused, their he be find verdict whether degree; if the first or second of accused murder guilt, impanel a shall confess his testimony degree jury crime examine jury. 1§ Dec. be such [Act shall found Pope’s (3rd clause), p. Dig., 3205; 121; M. § C. & Dig., 4041.]” (1925),
In Clark v. S. W. 849 requiring guilty plea, on a not we construed statute or first to find whether offense constituted directory only. degree held that murder to We where the evidence showed that die murder occurred while the defendant was
perpetrating felony, a trial courts properly juries to find mur- first could instruct the nothing. der consistently differ-
However, made a has is had trial for murder of the act when ent construction guilty plea. Upon plea to a first charge, whether no difference makes
899 “felony charge “premeditated is or murder” murder” raising instance, hold, in each because issue our cases the motion, this court’s own that the trial court must guilt upon jury the issue of the defendant’s submit degree degree both first Wells second murder. See v. (1937), State, 193Ark. 104 S. 451 and Walton W. 2d State, (1960). Ark. 334 S. W. 2d 657 impractical arising from inconsistent results application supra, readily Act, our onstrated entered a and of the 1838 are dem- although appellant Here, this record.
plea guilty, of not he took the witness stand conspiracy rob, admitted his involvement in the killing Morgan presence of Officer in his and that possession rifle in his when went of and out put came back into the house was used to 30-30 bullets Morgan’s body. plea guilty into Officer I submit that putting would not have admitted Are more. we not then application form before substance of the statute? Notwithstanding majority upon rely the fact that the charge “felony amendment the information to get statutory requirement murder” to around the jury required appel- to find their verdict whether guilty degree lant be gree, of murder in the first or de- second majority opinion states: “It will be observed that the amendment did not change charged nature the crime nor the de- gree of the offense...”
The latter statement was made because Ark. Stat. Ann. supra, 43-1024, providing that “no indictment shall be particulars amended, change filed, nor bill of so toas degree nature the crime or the of the crime charged.”
As I here, view the record without amendment would have been entitled to the instruction degree on second murder. We so held on identical facts Supra, State, Bosnick v. Bosnick v. intellectually S. W. 2d 688. I cannot be myself agree honest with the the that an amendment to particulars information and bill of which reriioves right degree to a accused’s and which murder instruction
permits the trial court tell either find him of first or loose him turn change does not the nature and of the crime involved, change Finally, majority says amend- *12 part complied of Ark. with that ment of the information requires “All amend- that: § Stat. Ann. which particulars of record.” ments The amendment here prosecuting attorney shall be noted and bills by the
made was a verbal motion the trial and a statement verbal granted. only record, judge if be called that it was reporter record, took down was that which the court the mean- hand. If constitutes a record within short why ing statute, I am at a loss understand enacting 43-1024, people, Ann. bothered Ark. Stat. requirement quoted statute into the to write the above surplusage. pure it is because graver life,
Furthermore, affairs law our testaments, respect re- particularly quire to last wills and with writing. be in thereto and all amendments indictments, they require laws As criminal I read our writing. particulars to be in informations and bills of any less to an information an amendment Should my grandchildren appellant’s mother formal? When seeking why to an instrument me amendment ask an dispose greater property be executed with has to a man’s
formality indictment to an than an amendment say, not seeking “I do life, have to I have to take his will greater that the know,” to admit will further appears formality placed property to be a life over on ordinary justice ex- upon citizen blemish pects law. for a and remand reasons I reverse
For these would to instruct new trial of the trial court’s failure because Act. with the 1838 accordance