Iberg v. Langston

David Newbern, Justice. The petitioner is accused of murdering Marvin Williams on May 6, 1960. He contends the statute of limitations has run and thus the court lacks jurisdiction. We hold the statute of limitations has not run. Unless the petitioner elects to be governed by the 1976 criminal code, the statute defining the offense charged is that which was in effect at the time the offense was allegedly committed. Ark. Stat. Ann. § 41-102(3), (4) (Repl. 1977). No such election has been made, thus the offense charged, first degree murder, is defined in Ark. Stat. Ann. § 41-2202 (Repl. 1964). The petitioner’s argument is that the three year limitation found in Ark. Stat. Ann. § 43-1602 (Repl. 1977) applies. That statute provides that felonies other than capital offenses cannot be prosecuted unless an indictment is found within three years of the commission of the offense, except in some instances not germane here. The respondent contends the offense with which the petitioner is charged is a capital offense and thus, according to Ark. Stat. Ann. § 43-1601 (Repl. 1977), it may be tried at any time after it was committed. The sole authority cited by the petitioner for his contention that murder in the first degree was not punishable by death, and thus not a capital offense, in 1960 is Patrick v. State, 265 Ark. 334, 576 S.W.2d 191 (1979). In that case we granted a writ of prohibition to prevent a trial for second degree murder when the information was not filed until more than four years after the offense was alleged to have been committed. We held that § 43-1602 applied as it was in effect at the time the offense was committed (1974) and had not been repealed even though the 1976 code provided a new statute of limitations. See Ark. Stat. Ann. § 41-104 (Repl. 1977 and Supp. 1983). The petitioner cites this language from Patrick v. State, supra: Prior to the adoption of the code, the statute of limitations on the prosecution of murder in any degree was governed by Ark. Stat. Ann. §43-1602 (Repl. 1977) since it was not a felony “punishable with death.” [Emphasis added.] That statement was dictum. If it meant that at no time prior to the 1976 code was any degree of murder punishable by death, it was inaccurate. In 1960, Ark. Stat. Ann. § 41-2227 (Repl. 1964) provided that first degree murder was punishable by death or life imprisonment. Possibly the statement was based on the U. S. Supreme Court decision in Furman v. Georgia, 408 U.S. 238 (1972), which held unconstitutional laws permitting courts and juries unbridled discretion in choosing between the death penalty and life imprisonment in capital offense cases. The gaps in application of capital punishment between the Furman v. Georgia, supra, decision and the enactment of standards to guide courts and juries in selecting the death penalty had no effect on the 1960 law which governs this case. The death penalty was a part of the law of Arkansas even after Furman v. Georgia, supra, was decided in 1972. In Dobbert v. Florida, 432 U.S. 282 (1977), the U. S. Supreme Court held that capital punishment was permissible even with respect to an offense committed after the 1971 decision and before Florida enacted legislation curing the constitutional defects in Florida’s application of the death penalty. The Supreme Court’s rationale was that the accused was continually on notice of the severity of the offense in the eyes of the State of Florida, and once the constitutional infirmities in selection of the death penalty had been cured it could be applied. While the precise holding in Dobbert v. Florida, supra, was that the curative Florida legislation was not ex post facto legislation as applied there, the analogy to the case before us is obvious. Just as Florida, Arkansas continued to have a death penalty law on its statute books even after the decision in Furman v. Georgia, supra. As the off ense of which the accused in this case has been indicted was one regarded by the law of this state as punishable by death in 1960, we look to the statute applicable at that time to determine whether the passage of time prevents prosecution. That statute is Ark. Stat. Ann. § 43-1601 (Repl. 1977). It provides: Any person may be prosecuted, tried and punished, for any offense punishable with death, at any time after the offense may have been committed. There is no statute of limitations which has the effect of depriving the circuit court of jurisdiction in this case. Writ denied. George Rose Smith, J., not participating. Purtle, J., dissents.