*1 1075 every supra, provides “in case of Section duty of "the em- it shall hernia as defined, above provide' necessary proper ployer and forthwith to hospital surgical ef- care attention to medical, operation a cure radical of said not fectuate hernia, fifty exceeding, hundred dollars, sum two however, appears clearly .” . that the Act directs that Thus, employer “pro- insurance carrier —shall —not necessary hospital vide” the medical and facilities, employer all has done in this this the case. provision requiring find no
We the Act consent operation. carrier to of the insurance authorize the opinion plain We are further of the under that, Compensation terms 13 is also Act, hospital entitled to recover for medical and services exceeding sum $250.
Accordingly, judgment reversed, appellant’s cause remanded with directions allow compensation as in claim death cases and, addi- hospital expenses for medical and tion, in accordance provisions question. with the of the Act in v. State. 4297 2d S. W.
Opinion delivered June 21, 1943. *2 Robley Schoggen, appellant. J. Ross and Elmer for Guy Attorney E. and Earl N. General, Williams, Attorney appellee. Williams, Assistant General, degree J. From a verdict of McFaodtn, death, appellant brings and a sentence murder, appeal. September Dolores Smith,- On Catherine 25,1942, girl years age, a little ten left the Woodruff School building p. company in Little Rock at 3:45 m. in with a appellant man whom witnesses identified as the herein. began The did her child not reach home and her mother a day appellant search for her. The (who next herein was married to the sister of the mother of Dolores Ca- Smith) therine was identified as the man who left school with the child and who proceed- was seen with her ing westerly; and the defendant was arrested and im- prisoned any and was never released at time thereafter.
On October spot 22, 1942, a hunter in a secluded about three miles west of the Woodruff found a School, some skull, bones, flesh, clothes and hair, shoes. Fowls, nearly had devoured or rodent animals hogs predatory left from the bones part all of the hut flesh, from hair, that this was the remains of witnesses testified dead ten old who had been years female about white and shoes were or five weeks. The clothes about four Dolores as those worn Catherine identified when she disappeared. custody was in the offi- the appellant
While he claimed was extorted a statement which he made cers, This al- threatening. beating from him whipping, will be discussed later. leged Naturally of the child and the entire disappearance situation at- much attention The newspapers. tracted prosecut- filed an information against *3 him with first murder for the degree of charging killing some by Dolores means and in- manner, Catherine and on a weapons strument of not unknown, plea there was a trial on November beginning guilty, 24,1942, until November when 27, 1942, jury and continuing find the defend- “We, in the brought verdict: Joe W. of murder ant, Smith, guilty the first degree as in the information.” On charged verdict, after the motion for new overruling court trial, and there is this appellant death; sentenced appeal. motion for new trial contains The 29 assignments these are into in the grouped eight points error, unnecessary for It is for appellant. and brief argument of error because assignments us to each of the 29 discuss and we reversed; the cause must be be- for two reasons lieve that other for grounds assignment of error will on a new present trial. So we proceed to a con- sideration of the two reversible to-wit: errors,
I. Failure to instruct on its to fix right at life imprisonment. punishment Pope’s 4257 of laws of Arkan- Digest Section “In all cases from the circuit appealed sas provides: to the Supreme prosecuted courts of this state or Court, where in the Court writs of Supreme upon error, of a has convicted in the lower court been capital offense, all errors lower court prejudicial to the The rights.of. heard .appellant and con- shall..be sidered Court Supreme whether exceptions were saved in the lower or court ami not; Supreme Court any finds that error prejudicial was committed trial any court in the trial of in which a conviction of a capital offense such cause shall be reversed resulted, and remanded new or modified judgment n at the discretion of the court.” section,
Under that
we have
consideration to
given
now discussed.' The
the case at
point
instructions
bar
462 to
appear
transcript,
pages
we fail to find
study
instructions,
from a careful
of these
where the trial
ever' instructed the
punishment could be life imprisonment. The law is well
settled in this
that where the
state,
jury finds the de-
fendant
of murder
guilty
as
degree
charged
in the information and does not fix the punishment,
then
the law fixes the punishment
at death.
v. State,
Clark
849;
169 Ark.
276 W.
Bullen v.
Ark.
State,
This court
held
repeatedly
that it is error for the
.has
*4
trial court
to fail
to instruct
the
it
fix
might
the punishment
at
life imprisonment.. The defendant
does not have to
this
request
instruction.
It is mandatory
on the trial court in a first degree murder case to advise
the jury of its power to fix the punishment
at life im-
prisonment.
See Webb v. State,
“In the present case, the the finding jury might .of have been different had the court explained to the jury the alternative right given by the statute in the fixing majority punishment of Therefore. of accused. pre- punishment opinion is of the court being character, in its alternative the statute scribed duty having made it the the statute fixing punishment, it was in its discretion exercise applicable the trial part case, the law regard charging to the discre- in in not erred was found the accused it in case to be exercised tion guilty degree. first murder by reducing the however, be cured, “The error can imprisonment. The punishment life of .the degree will be in the for murder of death sentence imprisonment reduced to and the sentence set aside, penitentiary at hard life in the state unless the labor, Attorney within elects two weeks to have the General judgment reversed and cause remanded for a new trial.” State, the same effect see Ark.
And to Crow 2d and Williams v. Ark. State, 13 S. W. 606, authority 2d of these we 39 W. 295. On cases, independently of the other error hereinafter men- hold, sentence, have to reduced that the would from tioned, penitentiary imprisonment at hard to life death Attorney should within elect, unless the General labor juridical days, to have the fifteen case reversed for a new remanded trial. open-
II. Reference to the ing prosecuting attorney. assignment of error No. 8 the motion for new’ permitting it is set out: “The court erred in
trial, prosecuting tbe to discuss and detail the of the defendant in the course of exceptions, over the statement to ’’ transcript page the defendant. The disclosed on 63: making “While following occurred: Schoggen: Let the record “Mr. show that the de- *5 objects detailing alleged to the fendant confession prosecuting attorney defendant objection being overruled statement, which exceptions. saves his court, defendant Exceptions “The Court: saved.” attorney prosecuting permitted The court to de- alleged jury over defend- tail the confession to the any cautionary ant’s and instruction without any kind If the confession had later been court. in no error have But admitted would resulted. evidence, page not admitted in From the confession was evidence. (and consuming por- page transcript a 364 of the 184 to testimony days) two the court heard chambers tion of regarding properly and held confession, in evidence. was not admissible officers, that the swore Smith, The Joe defendant, whipped had and beaten confession, an effort to a extort body his and saturated came from him, blood deputy appealed prosecuting to the his that he clothes; give punishment to him relief from the and tor- subjected; deputy which he ture to was and that the told him that the matter out of that later hands; beating whipping another when were to about be- agreed gin, give the defendant which the Physi- state contended was the this case. cians who examined defendant testified that he had body, bruises and welts, contusions on which could whipping beating. have been caused from The de- fendant named the officers he beat him. ITe who, said, deputy ap- named he whom pealed protection, place and the time and where said appeal was made. (Tr. The pp. trial court three times 300) prosecuting attorney put called parties disprove on the stand to these statements, prosecuting attorney par- but the false; did not call the ties named. saying are not
We that the defendant’s statements merely detailing were we true; are what the defendant regarding testified confession. doWe Gestapo. live land of the German The law7of our every person land surrounds accused of crime—even the presumption meanest vilest criminal —with
1081 presumption never'allow must and we innocence; by Gestapo is well set destroyed The law tactics. to he nature of question as to the is raised when a tled that its the to show is on State the burden confession, voluntary State, 336; 22 Ark. v. Love character. free and 1123; State, Bell v. 85 W. Ark. 74 State, Arkansas West’s See, also, 2d 618. S. W. 79, 20 180 Ark. (1). Digest, The state failed to Law,” “Criminal regarding the confession the burden sustain correctly held the confession the trial court bar; at inadmissible. Now back to the confession. much
So prosecuting made when the statement: (by virtue of the opening he knew to the way) guilty, plea if in no other of not defendant’s repudiated In the defendant. had been the confession opening jury state- detailing the confession objection, prosecuting the defendant’s over at- ment, torney responsibility consequence of the took admissibility ruling on the of the confes- later adverse prosecuting did not know course, sion. Of admissibility rule on the what the court would advance but reversible error was committed in confession; detailing over the de- an this case the confession was later when held fendant’s to be inadmissible. There was a sweet little innocent girl, confession, a vile and heinous crime, a detailed attorney, prosecuting jury day then the for left imagination going draw on its own as to what was on in inevitably juror the result follows chambers; that no his mind could eradicate from what the at- torney detailing had said in the confession. Just as ink cannot be erased from so the snow, confession, prosecuting attorney, as detailed could not be erased from minds of the in this and the case; trial court made no effort to eradicate the said confes- sion from minds of the even after the confes- sion was held inadmissible. support
The cases and textbooks the views herein State, stated. Gehl v. 179 Ark. 2d 396, S. W. practice allowing prose- this court criticized por- opening cuting attorney, to read a testimony inquest; and taken at coroner’s tion of practice said that such but that the' error, testimony subsequent admission of the said in evidence particularly cured when the error, trial court at the time of the statement had cautioned the *7 testimony that unless the was said admitted in evidence, jury disregard then the would it. People App. Luberto, v. Div. 691, 209 N. Y. S. Appellate Supreme
544, Division' of the New York involving a by Court decided case an the defendant to a heinous and that crime; court held error reversible was committed when, his attorney statement, the People for. the of New York jury detailed to the an confession which was not later admitted in evidence. The court said: “The state- ment was not offered in evidence, doubtless un- because, der the strenuous of the defendant’s counsel questions preliminary of series to its introduction, admissibility. the district lost faith in its . . . opening But the district remarks had jury of told contents He statement. character- ized it as a ‘written confession of his under oath.’ We impute attorney. bad faith to do not the district un- He doubtedly against intended to use the the de- progress changed and in the the trial fendant of his mind. accomplished. If But the was mischief statement had merely being offered in evidence without been char- as a ‘confession’ or its acterized contents revealed to the justifi- had been no excluded, criticism would they But the were told before able. heard a word that the defendant had evidence confessed of under oath just by committed all the had acts as that he claimed complaining and thus the Avitness, unconscious bias against \Adiichhe had doubtless his defendant, jurors sought to exclude from the examination immediately on their cast therein ac- box, Avas jurors. ceptance him as The remarks district posi- attorney, official influence surrounded jury. A sworn tlie lost on were not tioii, voluntarily of a the course fairly made in guilt, ordinarily the defense fatal judicial he must a con- person makes such who subsequent trial of a jury were told which the That was the condition fession. subsequently Nothing elimi- done existed. here they impression have must minds the their nate from n received. E. People Y. 76 N. 183 N. Wolf,
“In general is that rule ‘The was said: material and com- it is unless should be stated no fact proper petent proved, subject, to be and hence however, upon subject where the law to reasonable latitude is elementary every lawyer not so should know it. jurors . . Of what use is the rule that lis- must not out of court in relation to the ten to conversations case, containing newspapers an account of the trans- or read attorney, if the district with all the in- actions involved, permitted position, to make official fluence *8 very to them in court statements facts which it is the object of rules of evidence to exclude from their con- People Smith, 162 sideration?’ v. N. Y. See, also, 520, N. 56 E. 1001.” People Rogers,
In Ill. 136 N. 578, v. E. 470, Supreme recognized that it of Illinois 'was error Court attorney, opening for the state’s to de- statement, tail to an confession of the defendant; the Illinois did but court not reverse the case since the attorney object. defendant’s had failed to In Common Supreme 292Mass. E. Clark, 409, 193 wealth v. N. 641, passing ques- in on the Massachusetts, Judicial Court particular in held that no error was committed tion, why there was no reason offered the con- case because Reagan in In should not be admitted evidence. fession attorney, People, in 785, Pac. the district 316, 112 49 Colo. purported opening detailed a confession; in wás later admitted and the the evidence, but the confession Supreme held that the admission Court Colorado possible in dis 890, cured error. 16 C. J. confession cussing prosecuting opening attor- statement ney, ney prosecuting it is stated that it is error for the attor- if state in the accused detail the confession of properly confession is And in admissible in evidence. prosecuting J. it is stated: “The 529, C. may, opening, in . . refer to the of ac- confession give properly or cused the substance of its contents it is ’’ admissible in evidence. Bishop (2d Ed.), § Criminal Procedure discussing opening prosecuting statement of the at- torney, says: “A confession to be admissible must first adjudged voluntary. be adjudica- since Therefore, precede may tion cannot and the never permit practice it to reach the the better excludes (the confession) opening.” from the (10th Ed.)
And in Wharton on Criminal Procedure discussing opening prose-. statement of the cuting attorney, open the rule is stated: “While he must well declarations as as it is indecorous him facts, open confessions, evidence of is for which it the court to prose- If weigh ... it is admitted. before may cuting rules, violates these the court order a officer juror in case of a new or, conviction, to be withdrawn, may attempt granted prejudice unfair when an trial successfully made.” has been we hold that reversible error was com-
Therefore, alleged' in this because reference to the mitted objection over the of and with- defendant, any cautionary out instruction of the court, because inadmissible at all times. As we have previously *9 the other mentioned, errors, as appellant, probably will claimed not recur on they are new so discussed.
Beversed and remanded. concurring. opinion J.,C. After our Grieein Smith, appellant joined prose- was handed down, counsel for cuting stipulation in a that the trial did, might in punishment instruct the fact, fix the defendant’s imprisonment at life in lieu of electrocution. reporter, Through, it was the instruction error of the said, transcript. But could from the even we was omitted permit not be amended the result would the record required ground. changed, on another since reversal v. State. Fancher 2d 172 S. W. Opinion delivered 1943. June appellants. Claude A. Fuller and John W. Nance, Guy Attorney F. and Earl N. Williams, General, Attorney appellee. Assistant Williams, General, for