Lauderdale v. State , 233 Ark. 96 ( 1961 )

Ed. F. McFaddin, Associate Justice.

Appellant was charged with injuring property with dynamite — a violation of § 41-4237, Ark. Stats. The information stated: “The said E. A. Lauderdale, Sr., on or about the 7th day of September A. D. 1959, did unlawfully and feloniously, and willfully damage and injure a building located at 800 Louisiana Street in the City of Little Rock, by means of dynamite, against the peace and dignity of the State of Arkansas.” Although appellant was charged with damaging the school building at Eighth and Louisiana, it was not claimed that he personally set off the dynamite: rather, the claim was, that he was an.accessory before the fact with his accomplice, J. D. Sims, who, personally and in keeping with the directions of Lauderdale, set off the charge of dynamite. An accessory before the fact may be tried and convicted as a principal. Section 41-118, Ark. Stats.; Wilkerson v. State, 209 Ark. 138, 189 S. W. 2d 800. J. D. Sims confessed to the crime and received sentence and then testified for the State in the trial against Lauderdale.

The trial resulted in a jury verdict of guilty; and from a judgment on the verdict there is this appeal. The transcript contains more than a thousand typewritten pages; the' combined abstracts and briefs in this Court contain 537 printed pages; and the motion for new trial contains 55 assignments. We discuss some of these:

I. Change Of Venue. Appellant claimed that because of other dynamitings, because of widespread newspaper, television, and radio publicity, and because the Little Rock Chamber of Commerce offered a reward for the conviction of the dynamiters, it was impossible for him to obtain a fair trial in Pulaski County. The motion for change of venue stated in part: “Within a matter of less than a week after the commission- of the said crimes, public opinion in Pulaski County became firmly fixed against your petitioner, and the minds of the inhabitants of Pulaski County are now so prejudiced against petitioner that a fair and impartial trial cannot be had in Pulaski County, Arkansas, in this matter.”

Both appellant and the State called witnesses in regard to the change of venue; a total of twenty-three testified; and at the conclusion of the hearing the Circuit Court denied the motion. We cannot say that the Trial Court abused its discretion. In Perry and Coggins v. State, 232 Ark. 959, 342 S. W. 2d 95, there was discussed this matter of the change of venue of two other parties involved in other dynamitings that' occurred the same night. In that case, the Trial Court also denied the motion for change of venue and we sustained the ruling: what we said in that opinion on the change of venue matter applies with equal force to the case at bar.

II. Refusal To Allow Interrogation Of Veniremen On Certain Matters. A large number of veniremen were examined before the jury was finally completed. In the course of the voir dire examination the defendant’s attorney asked many questions, some relating to membership in the Country Club of Little Eock, the Capitol Citizens’ Council, the Little Eock Chamber of Commerce, and also membership in churches and other organizations. The defendant undertook to ask the venireman, “Are you a segregationist or an integrationist?” The Court refused to allow any venireman to be asked such question ; and the correctness of that ruling is the point here at issue.' The appellant says that he had a right to ask the veniremen, “as to whether they believed in integration, the mixing of the races, or segregation”; and appellant cites Bethell v. State, 162 Ark. 76, 257 S. W. 740, 31 A.L.R. 402, wherein we held it was proper on voir dire to ask veniremen if they belonged to the Ku Klux Klan. When relevant and of significance to the case being tried, inquiry should be allowed to be made on voir dire as to membership in an organization. The examination of the prospective juror is for the purpose of obtaining a fair and impartial jury, each member of which has a mind free and clear of all interest, bias, or prejudice that might prevent the finding of a true and just verdict. In 31 Am. Jur. 121 “Jury” § 139, the rationale of the holdings is summarized in this language:

“A wide latitude is allowed counsel in examining jurors on their voir dire. The scope of inquiry is best governed by a wise and liberal discretion of the Court, but the adverse litigant should be given the right to inquire freely about the interest, direct or indirect, of the proposed juror that may affect his final decision. Thus reasonable latitude should be given parties in the examination of jurors to gain knowledge of their mental attitude toward the' issues to be tried. . . .”

The same authority then continues:

“However, as a general rule, the examination of jurors on voir dire should be restricted to questions which are pertinent and proper for testing the capacity and competency of the juror . . . and must not go so far beyond the parties and the issues directly involved that it is likely to create a bias, a prejudice, or an unfair attitude toward any litigant.”¹

To ask a venireman on voir dire whether he was a segregationist or an integrationist would have no bearing on his fairness as a juror to sit in the trial of a case being tried for dynamiting a building. This is particularly true in this case since the words, “integrationist” and “segregationist” are now relative terms, and convey meanings of a scope and degree of intensity of feelings as to be more confusing than helpful in determining the fitness of a juror. To compel the veniremen to answer questions on these points would have been to inject an issue not pertinent to testing the capacity and competency of the jurors and would have tended to create a bias or prejudice that would also have embarrassed the veniremen. The Judge of the Trial Court is vested with wide discretion in determining the extent to which inquiry may be made of veniremen; and, by seeing the trial, can determine first hand — far better than we can on appeal — whether the questions asked are in good faith or are for the purpose of creating bias and prejudice. We cannot say that the Trial Judge abused his discretion in the case at bar.

III. The Juror Smith. The appellant claims that the Trial Court committed error with respect to this juror (a) in preventing appellant from further interrogation of the juror on voir dire, and (b) in refusing to excuse the juror because of the answers he made on voir dire. However, we find no error committed by the Court in either of these matters. Several pages in the transcript contain the voir dire examination of the juror and the Court’s rulings. It was not shown that Mr. Smith had discussed the case with any witness; but he did state that he had an opinion in the case. The Court then asked him the following:

‘ ‘ Q. You can and will set this pre-conceived opinion aside and go in the jury box with an open mind and try this case solely on the law and the evidence developed here and give both sides a fair and impartial trial?

A. That’s correct.”

In response to inquiries by appellant, the juror stated that he would have to hear evidence to feel that his original opinion was erroneous; and again the Court asked the juror:

“Q. You could set that opinion aside and try this case solely on the law and the evidence developed here?

A. Yes, your Honor.”

The appellant desired to further interrogate the juror as to whether it would take evidence to remove his opinion, but the Court then ruled that the inquiry had been pursued far enough, and that the juror would not be excused for cause. The appellant had exhausted his peremptory challenges at this point.

The situation presented to the Trial Court was similar to the situation in many of our reported cases. In Rowe v. State, 224 Ark. 671, 275 S. W. 2d 887, this Court said:

“While it is true that some of the veniremen said that they had formed tentative opinions based upon newspaper reports or what some one had told them, all who were accepted stated that they could and would be guided solely by the testimony, giving to the defendant the benefit of all doubts that the law defines. There was no error in accepting these men. It is no longer practicable in an intelligent society to select jurors from a psychological vacuum or from a stratum where information common to the community as a whole is lacking. ’ ’ In. Reynolds v. United States, 98 U. S. 145, 25 L. Ed. 244, Chief Justice Waite used this language, which is apropos:

“The reading of the evidence leaves the impression that the juror had some hypothetical opinion about the case, but it falls far short of raising a manifest presumption of partiality. In considering such questions in a reviewing court, .we ought not to be unmindful of the fact we have so often observed in our experience, that jurors not unfrequently seek to excuse themselves on the ground of having formed an opinion, when, on examination, it turns out that no real disqualification exists. In such cases the manner of the juror while testifying is oftentimes more indicative of the real character of his opinion than his words. That is seen below, but cannot always be spread upon the record. Care •should, therefore, be taken in the reviewing court not to reverse the ruling below upon such a question of fact, except in a clear case.”

In Niven v. State, 190 Ark. 514, 80 S. W. 2d 644, Mr. Justice-McHaney said: .

“Our rule is that a juror is not disqualified in a criminal case where he has a ‘fixed’ opinion which is based upon hearsay testimony, newspaper reports, or mere rumor, even though it would take evidence to remove such opinion, where, he states on his voir dire that he can and will, if selected, go into the jury box and disregard such opinion, and that he has no bias or prejudice for or against the accused. Jackson v. State, 103 Ark. 21, 145 S. W. 559; Corley v. State, 162 Ark. 178, 257 S. W. 750; Tisdale v. State, 120 Ark. 470, 179 S. W. 650; Scruggs v. State, 131 Ark. 320, 198 S. W. 694; Crawford v. State, 132 Ark. 518, 201 S. W. 784; Mallory v. State, 141 Ark. 496, 217 S. W. 482; Sneed v. State, 143 Ark. 178, 219 S. W. 1019; Borland v. State, 158 Ark. 37, 249 S. W. 591; Maroney v. State, 177 Ark. 355, 6 S. W. 2d 299. The above cases also hold that the qualifications of a juror rest very largely in the sound discretion of the trial court.”

The trial court did not abuse its discretion in the rulings regarding the juror Smith.

IY. Admission Of Other Dynamitings. Appellant was tried for participation in the dynamiting of the Little Rock School Board Office. J. D. Sims had confessed to participating in this dynamiting and he testified for the State; also Jesse Raymond Perry had been tried and convicted for participating in this dynamiting, and he testified against appellant. Furthermore, it was shown that the dynamiting of the Little Rock School Board Office was a part of a scheme planned by appellant Lauderdale with Sims, Perry, Coggins and Samuel Graydon Beavers, to dynamite several places the same night the School Board building was dynamited. Appellant claims that error was committed in allowing the testimony as to other dynamiting the same night. He relies very strongly on our holding in Alford v. State, 223 Ark. 330, 266 S. W. 2d 804, in which this language appears:

“Thus our cases very plainly support the commonsense conclusion that proof of other offenses is competent when it actually sheds light on the defendant’s intent; otherwise it must be excluded.”

See also Rhea v. State, 226 Ark. 664, 291 S. W. 2d 521.

We hold that the testimony as to the other dynamitings plannéd for the same night was clearly admissible to show the scheme, pattern, and intent of Lauderdale in the dynamiting² in the case of the Little Rock School Board Office for which he was tried. In the appeal of Perry and Coggins v. State, 232 Ark. 959, 342 S. W. 2d 95 we ruled on this question, involving the same dynamiting- incident as herein involved, and we quoted from Underhill On Criminal Evidence, 5th Ed., § 207, as follows:

“ ‘If several crimes are intermixed, or blended with one another, or connected so that they form an indivisible criminal transaction, and full proof by testimony, whether direct or circumstantial, of any one of them cannot be given without showing the others, evidence of any or all of them is admissible against a defendant on trial for any offense which is itself a detail of the whole criminal scheme.’ ”

Y. Sufficiency Of The Corroboration.

Section 43-2116, Ark. Stats, reads in part:

“A conviction cannot be had in any case of felony upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows that the offense was committed, and the circumstances thereof ...”

The appellant insists that there was not sufficient evidence to take the case to the jury — says appellant — because the testimony of the accomplices was not sufficiently corroborated by other evidence tending to connect Lauderdale with the commission of the offense. The evidence of the accomplices in this case is sufficient to support the jury verdict if there be other testimony independent of the testimony of the accomplices that tends to connect defendant with the commission of the crime.³ We therefore have examined the record for such “other testimony”; and here is some of it:

(1) It was testified by the witness Rucker that about 6:30 P. M. on the night of Monday, Sepbember 7, 1959 (the night of the dynamiting) he was burning trash and heard a ear door slam a short distance away; that he investigated and found the appellant Lauderdale, who said he had been getting leaf mold; and that after a brief conversation about their families, Lauderdale drove away. The witness Rucker testified that Lauderdale was alone and sitting in the car, and that it was parked in a clean place where there was no leaf mold. Three days after the bombing, officers went with Rucker to the place where he had seen Lauderdale; and a cache of dynamite was found 150 feet from where Lauderdale’s car had been parked. It was shown by other witnesses that this cache consisted of 65 sticks of dynamite, and a coil fuse over 19 feet long — all in a sack under a pile of rusted metal.

(2) It was testified by Sammy Beavers, son of Samuel Graydon Beavers, that appellant Lauderdale visited at the home of Samuel Graydon Beavers and had a 15-minute conversation with Samuel Graydon Beavers (one of the accomplices) outside of the hearing of any person, on Friday night before the Labor Day bombings on the following Monday. Lauderdale came at six o ’clock in the evening and professed to be in a hurry, but he took Samuel Graydon Beavers (the accomplice) out on the front porch and they talked from 15 to 30 minutes, with no one hearing the conversation.

(3) The accomplice Beavers testified that he obtained dynamite and fuse from Lauderdale to use in bombing another place in Little Rock, but the witness changed his mind and decided it was too dangerous; so he took the dynamite and fuse home and buried them. He took the officers to the place where he had buried the items; and the officers testified that the dynamite and fuse that Beavers had were similar to some of the dynamite and fuse that had been uncovered in the cache previously mentioned.

(4) The witness Crawley testified that she was the owner and operator of the King Tut Cafe on Asher Avenue, and that about 7:30 P. M. on Labor Day, September 7, 1959, Sims drove up to her cafe with another man seated on the front seat with him and with Lauder-dale on the back seat. She waited on the three men and brought them three cups, of coffee and one package of cigarettes. This testimony put Lauderdale with Sims three hours before the dynamiting.

(5) It was testified by two FBI agents that the fingerprint of appellant was found on the car of Perry, the accomplice. This testimony put Lauderdale and Perry together in a car som'e time before the bombing.

(6) Perry and Sims claimed that they met Lauder-dale at 13th and Pine Streets one evening to make the plans for the bombing. The law enforcement officers testified that Lauderdale admitted to them that he was at 13th and Pine on the same evening that Perry and Sims claimed to have met him there.

The testimony of some of these witnesses was disputed, but the weighing of the testimony was for the jury; and our problem is, whether these six numbered items constitute “other evidence tending to connect the defendant with the commission of the offense,” independent of the testimony of, the accomplices. One of these items if standing aloné would not be sufficient; two of them might not be sufficient; but when all six of these items are put togethér, we hold that they are sufficient “other evidence tending to connect the defendant with the commission of the offense”; independent of the testimony of the accomplices. Together they make a chain of circumstances that carry the case to the jury. One thread,- in itself, is very weak, but many threads woven together will make a rope; and these threads of independent evidence, woven together, are sufficient to take the case to the jury.

Y I. The Juror Illing. The trial of this case commenced in Circuit Court on November 23, 1959, and the jury verdict was returned late in the night of November 27, 1959. On the afternoon of November 27th, just as the defense was presenting its last witness before resting the case, the following occurred at the instance of the defendant in the absence of the jury:

“Mr. Howard: If Your Honor, please, since the jury was selected and sworn, there has come to the attention of counsel for the defendant'that one of the jurors, Mr. Horace Illing, is related by affinity to Fire Chief Nalley, whose automobile was the subject of testimony in this law suit, and it being our information, and it' is purely information, that Fire Chief Nalley married the sister of Horace Illing, and we ask the Court to declare a mistrial at this- time.

‘ ‘ The Court: That is what I understand. I learned that yesterday. Overruled.

: “The defendant objected to the above ruling of the court and at the time asked that his exceptions be noted of record, which was accordingly, done.”

Appellant claims that the Court’s ruling was erroneous and that the Court should have declared a- mistrial because of Juror Illing’s relationship to the wife of Fire Chief Nalley. We do not agree with the appellant’s claim; and there are several reasons for our conclusion.

In the first place, there was no statutory reason for excusing the juror Illing. Section 43-1920, Ark. Stats., in listing the grounds for challenging a juror for implied bias, says in part:

‘ ‘ First. Where the juror is related by consanguinity, or affinity, or stands in the relation of guardian and. ward, attorney and client, master and servant, landlord and tenant, employer and employed on wages, or is a. member of the family of defendant or of the person alleged to be injured by the offense charged, or on whose complaint the prosecution was instituted.”

Illing could not have been disqualified under this section because Lauderdale was being tried only for dynamiting the school office and not for dynamiting the automobile which the Little Rock Fire Department owned and had assigned to Fire Chief Nalley, who did not own the car and could have suffered no property damage in connection with the dynamiting of the car. Furthermore, Nalley was not even a witness⁴ in the trial of this case. The Trial Court possesses considerable discretion as to excusing jurors in a situation such as is here presented, and we cannot say that such discretion was abused.⁵

Another reason for our conclusion to sustain the ruling of the Trial Court in regard to Juror Illing is because of the opportunity the appellant had on voir dire examination to interrogate Juror Illing. The voir dire examination of Illing consumed eight pages of the typewritten transcript (T. 408-415, inclusive). The juror was interrogated by the defendant at length, and that was the time and place for the defendant to ask him about any possible relationship to anyone in any wise the object of any bombing. Due diligence required investigation by the defendant on voir dire as to veniremen; and defendant could not wait until near the conclusion of the trial, then ask the Court for a mistrial, and complain that the Court abused its discretion. No “overruling necessity” was shown in this case, nor any absolute statutory disqualification or bias.

Conclusion. As aforesaid, the motion for a new trial contained fifty-five assignments. We have studied each one of them and find no reversible error.

Affirmed.

George Bose Smith, • Bobinson and Johnson, JJ., dissent.

1 See also 50 C. J. S. p. 1041, “Juries” § 275. A clear statement of the law is also to be found in Reed v. Commonwealth (Ky.), 314 S. W. 2d 543.

2 As regards evidence of other dynamitings the Court instructed the jury as follows:

“You are instructed that evidence introduced by the State in this case, of similar offenses and a planned similar offense which was to occur prior to the offense charged in the information, was admitted solely for the purpose of showing the defendant’s intent, if any; motive, if any; guilty knowledge, if any; and his part in a common scheme, if any; and you may consider it for this purpose and this purpose only. You may consider such evidence then only if you find beyond a reasonable doubt that similar offenses occurred or another similar offense had been planned and that the defendant participated in the alleged common design. The defendant is not on trial for any offense except the offense charged in the information.”

3 Some of our cases on corroboration of accomplices presenting a jury question are Miller v. State, 155 Ark. 68, 243 S. W. 1063; Knight and Johnson v. State, 228 Ark. 502, 308 S. W. 2d 821; Underwood v. State, 205 Ark. 864, 171 S. W. 2d 304; and Vaughn v. State, 58 Ark. 353, 24 S. W. 885. At the request of the defendant, the Court instructed the jury as follows:

“You were told that under the law of the State of Arkansas, the defendant, E. A. Lauderdale, cannot be convicted upon the testimony of the accomplices, J. D. Sims, Jessie Perry, and Samuel Graydon Beavers, unless you find that the testimony of said accomplices is corroborated by other evidence tending to connect Ed Lauderdale with the commission of the offense; and the corroboration is not sufficient if it merely shows that the offense was committed, and the circumstances thereof. In other words, the rule is that the evidence, independent of that of the accomplice, must tend to connect the defendant with the commission of the crime.”

4 In Jones v. State, 230 Ark. 18, 320 S. W. 2d 645, we held that a juror was not disqualified as a matter of law even when related to a witness in a case.

5 Appellant cited the Texas Appeals case of Wright v. State, 12 Tex. App. 163, decided in 1882. In that case it was held that a juror was disqualified because his family had a horse alleged to have been stolen by the defendant then on trial for stealing a horse from another party. No cases or authorities were cited to sustain the Court; and the holding is considerably weakened by the subsequent Texas ease of Rogers v. State, 109 Tex. Cr. R. 88, 3 S. W. 2d 455, decided by the Texas Court of Criminal Appeals (the highest court in criminal cases) in 1927. In the_ Rogers case the Court held that a juror was not absolutely disqualified because of relationship to the prosecutrix, and then the Court said: “We find in many opinions expressions regarding disqualifications of jurors or incompetence of jurors which are inaccurate to say the least.” The Court also cited, inter alia, Wright v. State, 12 Tex. App. 163, and said: “Said cases present facts only partly similar to those before us, and, in so far as the opinions advanced the suggestion that jurors were incompetent or disqualified, same are not accurate.”