Bosnick v. State

Conley Byrd, Justice. Appellant Franklin David Bosnick, Jr., was found guilty of first degree murder and sentenced to death. For reversal he relies upon the following points: 1. The lower court erred in its refusal to instruct the jury on second degree murder and the other degrees of homicide. 2. The information charging appellant with first degree murder was fatally defective and will not support a conviction of the crime of first degree murder with the evidence presented. 3: The lower court erred in instructing the jury on Ark. Stat. Ann. § 41-2246 (Repl. 1964), said statute being violative of the 14th Amendment to the U. S. Constitution. 4. The lower court erred in allowing testimony that indicated that appellant had committed another crime not related to the crime of murder. 5. The lower court erred in allowing the introduction of inflammatory photographs of the deceased when the cause of death was admitted. The testimony in this case is essentially the same as in Bosnick v. State, 248 Ark. 846, 454 S. W. 2d 311, except that in this case Bosnick, Jr., a son of the appellant in the former case, took the witness stand in his own behalf. His mother, Mary Evelyn Tucker, also testified. Appellant’s testimony shows that he was 17 years old at date of trial. When he was 15, he stole a truck and went to reform school. Before leaving his mother’s home in Louisiana, his father had called and asked him to steal a vehicle and bring it to Arkansas. Instead, appellant, Dewey Ray Murray and Danny McKay came to Arkansas in Dewey Ray Murray’s car. In Arkansas, after drinking beer and whisky furnished by the father, they burglarized a filling station where they obtained some tires, while appellant’s father drove up and down the road outside the station. The tires were put on Dewey Ray Murray’s car. On the date of the killing, appellant, Dewey Ray Murray and Danny McKay again had been drinking beer and whisky supplied by Bosnick, Sr. During the afternoon, appellant entered Gatteys’ store to look for guns and see how many people were in the store. Appellant testified that he told his father that he didn’t want anything to do with robbing Gatteys’ store and that they should call it off. However, appellant stated that his father told him that if he backed out, he, Bosnick, Sr., would whip appellant. He stated that when he went into the store the second time he fired a shot into the shelves and later fired a shot by Mrs. Gatteys’ foot, which scared her so that she could not walk. Appellant then heard a knock at the door and tried to open it, thinking it was his father. After the door was opened, he told whoever was outside to come in but the person fired first and when he felt the fire hit him in the face he started shooting. He said that he was scared of his father and thought his father was shooting at him. Appellant denied having shot over Mrs. Gatteys’ shoulder and denied having heard anyone or anything other than a knock on the door. On cross-examination he stated that after the person who fired at him turned and ran, appellant ran outside and fired. Other testimony by appellant shows that he did not know that it was not his father he was firing at until after he saw his father get in the car after the robbery was over.^ The testimony of Mrs. Tucker shows that appellant was not a bright boy, that while not low enough to go to a mentally retarded class he was always the lowest in his class. He repeated the first and third grades. Promotion from the third grade was on a physical promotion. It was during his third year in the eighth grade that he got into trouble and was put in the reform school. Mrs. Tucker says that Bosnick, Sr., kept calling appellant over her objection. Mrs. Tucker was cross-examined by the prosecuting attorney about assistance or aid she gave appellant during an escape following his original arrest and prior to trial. This was over appellant’s objections. POINT 1. Under the information here filed against appellant which alleges that he “unlawfully, wilfully and feloniously after premeditation and deliberation and of their malice aforethought did assault, kill and murder Jessie J. Morgan by shooting him with a fire arm,” we hold that appellant’s version of the shooting, if believed, is sufficient to sustain a finding of second degree murder. Consequently the trial court erred in failing to instruct the jury on second degree murder. See King v. State, 117 Ark. 82, 173 S. W. 852 (1915); Montague v. State, 240 Ark. 162, 398 S. W. 2d 524 (1966). It is suggested that the appellant may not urge the error of the trial court in failing to instruct on second degree murder because appellant offered no instruction on that issue. The record with respect thereto is as follows: “MR. SHARPE: The defendant would request that you give the jury the contents of Section 43-2152: The jury shall, in all cases of murder, on conviction of the accused, find by their verdict whether he be guilty of murder in the first or second degree; but if the accused confess his guilt, the Court shall impanel a jury and examine testimony, and the degree of crime shall be found by such jury.’ THE COURT: In other words, as I understand it, Mr. Sharpe, you are asking the Court to instruct the jury that they may find the defendant guilty of murder in the first degree, or murder in the second degree, or manslaughter. MR. SHARPE: Yes, Your Honor. THE COURT: That request will be refused, because the Court is of the opinion that this is a case where murder was perpetrated, or the murder happened while perpetrating the crime of robbery in which this defendant participated, and therefore can only be murder in the first degree, or nothing, and that is the way the Court will instruct the jury. MR. SHARPE: Then, as I understand, you will not read 43-2152, which the defendant has requested? THE COURT: That’s right. MR. SHARPE: Note our objection to the Court’s ruling.” Ark. Stat. Ann; § 43-2723, (Repl. Í964), with reference to capital cases, provides: “In all cases appealed from the circuit courts of this State to the Supreme Court, or prosecuted in the Supreme Court upon writs of error, where the appellant has been convicted in the lower court of a capital offense, all errors of the lower court prejudicial to the rights of the appellant shall be heard and considered by the Supreme Court whether exceptions were saved in the lower court or not; and if the Supreme Court finds that any prejudicial error was committed by the trial court in the trial of any case in which a conviction of a capital offense resulted, such cause shall be reversed and remanded for a new trial, or the judgment modified at the discretion of the court.” In Maxwell v. State, 236 Ark. 694, 370 S. W. 2d 113 (1963), we pointed out that by virtue of this statute it was not necessary in capital cases for the appellant to formally save exceptions to adverse rulings of the court. To require a defendant to submit an instruction after the court had ruled as it did, above, would be virtually requiring a formal exception to an adverse ruling. For this error we reverse and remand to the trial court. POINT 2. Appellant’s argument under point 2 really goes to the trial court’s action in submitting an instruction to the jury that murder committed in the perpetration of/or in an attempt to perpetrate arson, rape, robbery, burglary or larceny is murder in the first degree. Appellant made no objection in the trial court to the giving of the instruction. The evidence is certainly sufficient to sustain a conviction on premeditation. POINT 3. Ark. Stat. Ann. Section 41-2246 (Repl. 1964), provides: “The killing being proved, the burden of proving circumstances of mitigation that justify or excuse the homicide, shall devolve on the accused, . . .” There was no error in the trial court’s instructing the jury with reference to this statute under the defense here interposed. See Bagley v. State, 247 Ark. 113, 444 S. W. 2d 567. POINT 4. We find no merit in appellant’s contention that his mother could not be cross-examined about her conduct in aiding or assisting in his escape. Such evidence was admissible to attack Mrs. Tucker’s credibility and the fact that it implicated appellant in another crime did not make it inadmissible to inquire about on cross-examination. POINT 5. We find no merit in appellant’s contention with reference to admission of photographs of the deceased. See Bosnick v. State, 248 Ark. 846, 454 S. W. ed 3 811. Reversed. Harris, C. J., and Fogleman and Jones, JJ., dissent.