Bosnick v. State , 248 Ark. 846 ( 1970 )

Carleton Harris, Chief Justice.

I cannot agree that the conviction in this case should be reversed, for, in my view, Bosnick was not entitled to instructions relating to the lower degrees of homicide.

And in reaching this conclusion, it is not necessary to go beyond our own statutes and cases.

Let it first be stated that, of course, it was not necessary for Bosnick to actually fire the shot that killed Morgan; it was sufficient that hé was jointly engaged with others in the robbery, and he was properly indicted as a principal, being present, aiding, and abetting. Henry v. State, 151 Ark. 620, 237 S. W. 454.

The majority opinion is predicated on the fact that Bosnick was not charged with murder in the perpetration of robbery, but rather was charged with a willful, malicious, and premeditated killing.¹ In my view, the manner of the killing, under our statute, is immaterial. In 1936, the people of Arkansas adopted Initiated Act No. 3, being an Act to “Amend, Modify, and Improve Judicial Procedure” and the “Criminal Law”. Included in this act were certain provisions which appear as Section 43-1006, and 43-1007, Ark. Stat., 1964 Replacement. 43-1006 reads as follows:

“The language of the indictment must be certain as to the title of the prosecution, the name of the court in which the indictment is presented, and the name of the parties. It shall not be necessary to include statement of the act or acts constituting the offense, unless the offense cannot be charged without doing so. Nor shall it be necessary to allege that the act or acts constituting the offense were done wilfully, unlawfully, feloniously, maliciously, deliberately or with premeditation, but the name of the offense charged in the indictment shall carry with it all such allegations.² The State, upon request of the defendant, shall file a bill of particulars, setting out the act or acts upon which it relies for conviction.

Section 43-1007 provides:

“An indictment may be substantially in the following form:

The State of Arkansas, ) vs. ) In the Pulaski Circuit Court. John Doe. )

The grand jury of Pulaski County, in the name and by the authority of the State of Arkansas, accuse John Doe of the crime of murder in the first degree (or other crime, as the case may be), committed as follows: The said John Doe, on January 1, 1936, in Pulaski County, did murder Richard Roe, against the peace and dignity of the State of Arkansas.

In Thompson v. State (1943) 205 Ark. 1040, 172 S. W. 2d 234, this Court sustained the validity of the Information which charged Thompson with the crime of Murder in the First Degree, the Information alleging:

“The said defendant Henry Thompson on the 23 day of December, 1942, in Cleveland county, Arkansas, did unlawfully murder Mrs. Susie Vedto against the peace and dignity of the State of Arkansas* * *.”

It would not appear that Bosnick was in ignorance of the details of the crime with which he was charged, but in such case, he could have moved for a Bill of Particulars as provided in 43-1006.

It is interesting to note that the same view was taken by the Supreme Court of Erie County, New York. In the case of People v. Tutuska, 192 N. Y. S. 2d 350, (affirmed by the New York Court of Appeals) the court said:

“The purpose of proving participation in the commission of another felony which leads up to and results in the homicide is entirely different than the one suggested by the defendant. There can be no murder without evidence of malice and of a felonious intent and a depraved mind. The indictment was sufficient in form when it simply accused defendant of having killed the deceased ‘willfully, feloniously and with malice aforethought,’ (citing cases). On the trial it was necessary to prove such malice and willful and felonious conduct, and this necessity was satisfied in accordance with the provision of the statute by showing that the homicide occurred while the defendant was engaged in the commission of another felony.”

The case then cites an earlier opinion³ written by Chief Justice Cardozo, of the New York Court of Appeals, as follows:

“Homicide, we said, is not murder ‘without evidence of malice and of a felonious intent and a depraved mind’, [citing case] The malice or the state of mind may be proved by showing that the act was done with a deliberate and premeditated design to kill. The case will then fall under subdivision 1 (§ 1044). It may be proved by showing that the act was done by one then and there engaged in the commission of another felony, [citing cases] The case will then fall under subdivision 2. In the one case as in the other a single crime is charged, the independent felony like the deliberate and premeditated intent being established solely for the purpose of characterizing the degree of the crime so charged, the evil mind or purpose inherent in the killing.”

Section 41-2205 Axk. Stat., 1964 Replacement, defines First Degree Murder as follows:

“All murder which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of wilful, deliberate, malicious and premeditated killing, or which shall be committed in the perpetration of or in the attempt to perpetrate, arson, rape, robbery, burglary or larceny, shall be deemed murder in the first degree.”

In Clark v. State, 169 Ark. 717, 276 S. W. 849 this court said:

“In the discussion of homicide by poison or in the perpetration of felony, the annotator there said: ‘The courts have frequently decided that where the only evidence of a homicide tends to show that it was committed by poison or in the perpetration of, or an attempt to perpetrate, one of the felonies enumerated in the statute defining murder in the first degree, no instruction on any grade of homicide less than murder in the first degree is necessary, and that one convicted of murder in the first degree on such evidence is not entitled to a new trial because of a failure to charge the law on a lower grade of homicide, or because of an instruction that no conviction of a lower degree can be had.⁴’ ”

The majority opinion agrees that Clark v. State, Supra also holds that when a group plans an armed robbery,

“each one of the party would be responsible for everything done which followed directly and immediately in the execution of the common purpose as one of its probable and natural consequences.”

The majority then add this sentence:

“But whether the homicide was a probable and natural consequence of the common plan would ordinarily be a question for the jury.”

I find no Arkansas case which sustains the view that where a victim is killed in a robbery participated in by several different persons, those not involved in the killing are entitled to instructions on all degrees of homicide; in fact, Henry v. State, holds just to the contrary. And, in that case, the court added, “this was true, even though the conspiracy did not expressly contemplate the commission of the crime of murder.”

The use of language describing the manner of the murder is only descriptive. As recently as March 30 of this year, in Turner v. State, 248 Ark. 367, 452 S. W. 2d 317, we approved a statement in the Idaho case of State v. Hall, 383 P. 2d 602, “The robbery was alleged only as a condition or circumstance characterizing the murder as first degree.”

To summarize, our cases hold that one who participates in a robbery, though he does not actually fire the shot that kills the victim, is just as guilty of murder as the participant who did fire the shot. Further, it is not necessary that the manner of the killing be alleged in the Information or Indictment; still further, where the murder is committed while perpetrating a felony, the only proper instruction is that of first degree murder, and the defendant is not entitled to instructions on the lesser degrees of homicide.

The people of this state, in 1936, passed a progressive measure, doing away with inconsequential technicalities in charging persons with crimes,⁵ thus recognizing that justice is not determined by what may or may not be alleged in the Information. Yet, the measure adopted by the people (Initiated Act No. 3 of 1936) adequately protected the rights of the defendant, that measure providing that the indictment must be certain as to what the defendant was charged with, the name of the court in which he was charged, and the name of the parties against whom he had committed the offense. As a further safeguard, the act provides that the State, upon request of a defendant, shall file a Bill of Particulars, setting out the acts it relies upon for conviction.

I am sorry that the procedural progress gained from the passage of that act, has now been discarded.

I therefore respectfully dissent.

Jones, J. joins in this dissent.

1 It might here be stated that the majority opinion vaguely leaves an impression that it may be necessary to instruct on the lower degrees of homicide, even though one is charged with murder while committing a felony, the majority stating, “Had the information charged the defendants with murder in the perpetration of robbery, then the court’s action might (my emphasis) have been correct (leaving aside for the moment the fact that the elder Bosnick merely waited outside), because proof of a homicide in the course of a robbery or other felony specified in the statute relieves the State of the burden of proving premeditation or the specific intent to take life.”

2 Emphasis supplied.

3 People v. Lytton, 257 N. Y. 310.

4 Emphasis supplied.

5 For instance, at one time, in charging one with first degree murder, it was not only necessary to charge that the crime was committed with malice and premeditation, but also the weapon used had to be identified, (pistol, knife, etc.,) and in case of a pistol, the indictment, if proper, alleged that the party murdered was shot “with a 38 pistol, loaded with powder and leaden bullets”.