¶1(dissenting). -The testimony in this case is not as strong as is desirable in order to warrant a conviction for a capital crime, but it is undoubtedly sufficient, from a legal standpoint, to justify this court in upholding the verdict of the jury. There are some unsatisfactory features in the evidence, but the jury had the witnesses before them, particularly the testimony of the children of the accused, and a case was made out sufficient to uphold the verdict.
¶2I can not agree to a reversal of the case upon the grounds stated by the court, for I have an abiding conviction that the record is free from any prejudicial error.
¶3It is a sound doctrine, and one supported by authority, that, where the jury in a capital case is kept together, the fact that they read newspaper articles of an inflammatory nature is sufficient to raise a presumption of prejudicial effect and that the burden rests upon the State to remove that presumption. However, we have the newspaper articles before us which are said to have been read by some of the jurors, and, in my judgment, there is nothing in them that is calculated to prejudice appellant’s rights in the minds of those jurors. There is nothing of an inflammatory or sensational character in the articles. They only pretend to relate to events of the trial—events which occurred in the presence of the jury—and do not pretend to convey the outside sentiment or the opinion of the editor concerning the weight of the evidence. It is true that one of the articles speaks of the two children giving testimony which if not broken down would send their father to the electric chair, but the tone of the article evinces clearly the intention of the writer merely to relate the substance of the testimony, and not to express an opinion as to its weight. I think we ought to attribute to the jurors a fair degree of intelligence and presume that they are not mere puppets to be influenced by every flying rumor. They are supposed to be fair-minded men, who will be guided by the testimony adduced upon the witness stand and instructions of law given by the court, and not by mere expressions of others.
¶4As before stated, I do not mean to say that a highly infla.mma.tory newspaper article which purports to express public sentiment or which is calculated to convey to the minds of the jury the idea that it represents public sentiment, would not be held to be prejudicial in the absence of a counter showing on the part of the State sufficient to rebut the presumption. These articles are not of that character, however, and it seems to me that they are not sufficient to raise any presumption that the jurors were influenced by them.
¶5Now, as to the form of the verdict: The court has not passed upon that question, but in order to justify my conclusion that the case ought to be affirmed it is proper for me to say something on that subject. It is true the statute, in terms, declares that “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.” Kirby’s Digest, § 2409. When the verdict in this case is read in the light of the other parts of the record, it is perfectly clear that the jury have complied with the statute and have by their verdict declared the defendant to be guilty of murder in the first degree. The whole record, including the court’s charge, may be considered in interpreting the verdict of the jury, and if, from the whole, it can be ascertained to a certainty what the jury meant, then the verdict is sufficient. Strawn v. State, 14 Ark. 549; Fagg v. State, 50 Ark. 506; Blackshare v. State, 94 Ark. 548.
¶6“Whatever conveys the idea to the common understanding will suffice,” says Mr. Bishop on that subject, “and all fair intendments will be made to support it.” 1 Bishop, Criminal Procedure, § 1004, sub. 5; § 1005a.
¶7In Fagg v. State, supra, Chief Justice Cockrell, speaking of a verdict for manslaughter which failed to specify the time, said:
¶8“Viewing the verdict in this case in the light of the evidence and the court’s charge, the conclusion is reasonable, if not irresistible, that the jury intended a conviction of voluntary manslaughter. The court had charged, them specifically upon that offense, and had made no mention of involuntary manslaughter. If they knew there was such a grade of homicide, it is not probable that they understood that the defendant could be convicted of it in this prosecution.”
¶9In "the present case the court specifically charged the jury as to the form of the verdict and told them that if they found the defendant guilty of murder in the first degree, the form of their verdict should be, “We, the jury, find the defendant guilty as charged in the indictment. ’ ’ In response to that instruction the jury adopted the precise form laid down by the court. It is very clear, therefore, what the jury meant when we look to the whole record, and the requirement of the statute is fully met. ■
¶10I think the judgment in this case should he affirmed, and I, therefore, dissent from the conclusion reached by the majority.