Vault v. Adkisson , 254 Ark. 75 ( 1973 )

John A. Fogleman, Justice,

concurring. I concur. We have uniformly held that whether or not an offense is capital depends upon the penalty imposed, and not upon the gravity of the offense. Walker v. State, 137 Ark. 402, 209 S.W. 86, 3 A.L.R. 968;¹ Outler v. State, 154 Ark. 598, 243 S.W. 851; Allison v. State, 204 Ark. 609, 164 S.W. 2d 442. Furthermore, we held that the former rule, that only an objection to rulings of the trial was necessary as a prerequisite to appellate review where appellant was convicted of a capital offense, had no application when one charged with murder in the first degree was sentenced to life imprisonment. Surridge v. State, 239 Ark. 581, 393 S.W. 2d 246. If an offense is not capital when life imprisonment, rather than the death penalty, has been imposed, it is only logical that it is not a capital offense when the death penalty cannot be imposed under any circumstances.

We have heretofore granted a writ of certiorari and directed that a circuit court admit one charged with first degree rape to bail, overruling the trial court’s holding that the crime was not a bailable offense. We then relied upon Walker v. State, supra, and viewed the matter in the light of Graham v. State, 253 Ark. 462, 486 S.W. 2d 678. We also referred to State v. Johnson, 61 N.J. 351, 294 A. 2d 245. See Jerry Wayne Baumgardner v. Ed Hall, Sheriff, 253 Ark. 723.

It would certainly be inconsistent to say that the case of Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972), made former capital offenses bailable, but did not have the same effect upon our procedural statutes relating to the same offenses.

1 Even the dissenting justice in Walker based his contention, that one convicted of murder in the first degree and sentenced to life imprisonment was not admissible to bail on appeal because he had been convicted of a capital offense, upon the premise that the death sentence could have been imposed. Here it cannot be.