Bosnick v. State

¶1dissenting. I respectfully dissent. Appellant did not at any time offer any instruction defining second degree murder or manslaughter, either voluntary or involuntary. He only requested the reading of Ark. Stat. Ann. § 43-2152 (Repl. 1964), which was not a correct instruction on any degree of homicide, or any jury instruction at all for that matter. It certainly would give a jury no guideline by way of distinction of the degrees of homicide or of punishment. Furthermore, appellant did not object to any instruction given, or to the omission of any issue in the instructions given.

¶2If appellant desired an instruction upon any issue, phase or theory of the case, he should have submitted one to the court embodying a proper statement of the law in that particular, and, not having done so, he cannot complain of the court’s failure to give the instruction.. McKinney v. State, 215 Ark. 712, 223 S. W. 2d 185; Cellars v. State, 214 Ark. 326, 216 S. W. 2d 47; Lucius v. State, 116 Ark. 260, 170 S. W. 1016; Jackson v. State, 92 Ark. 71, 122 S. W. 101; Lowmack v. State, 178 Ark. 928, 12 S. W. 2d 909. See also, Stevens v. State, 231 Ark. 734, 332 S. W. 2d 482.1 In a case where this court found that a defendant was entitled to a manslaughter instruction, it was held that the failure to give an instruction on that degree of homicide was not reversible error because the defendant’s request was made by an offered instruction which was not proper because it was misleading. Allison v. State, 74 Ark. 444, 86 S. W. 409.

¶3In Cooley v. State, 213 Ark. 503, 211 S. W. 2d 114, the accused was prosecuted on a charge of second degree murder and convicted of voluntary manslaughter. On appeal, he complained because no instruction defining involuntary manslaughter was given. The assignment of error recited:

“The court erred in failing and refusing to instruct the jury as to the law regarding involuntary manslaughter, as requested by the defendant, to which action of the court the defendant at the time objected and saved his exceptions.”

¶4A search of the transcript revealed that no requested instruction was ever presented to the circuit judge. There is no indication that the court was not made aware of the issue by means other than the offer of an instruction stating the law. Rather, the opinion equated the situation to that prevailing in Pate v. State, 206 Ark. 693, 177 S. W. 2d 933, and stated:

… if appellant desired an instruction, he should have submitted one to the court “setting forth a proper statement of the law in that particular, and, not having done this, he cannot complain of the court’s failure to give such instruction.”

¶5In Pate v. State, supra, we stated that it was well settled that it is not the duty ,of a trial court to give an instruction on any point unless a correct instruction on that point is asked, quoting from Atkinson v. State, 133 Ark. 341, 202 S. W. 709. There is also a very close parallel between Pate and the case now before us. Pate was charged with, and convicted of, maiming. The similarity of the proceedings is best demonstrated by quoting from the opinion:

Appellant complains that the trial court erred in not granting his request for an instruction on aggravated assault and assault and battery, because these misdemeanors were included in the crime of maiming charged in the information. The record as to this request is as follows: “Mr. Gean: ‘I ask the court to instruct the jury on aggravated assault and assault and battery.’ The court refused this request and the defendant excepted. Counsel did not submit written requests.” Counsel for appellant did submit numerous written instructions which the court was requested to give.

¶6We held:

Appellant, if he desired an instruction of this kind, should have submitted to the court an instruction as to aggravated assault and assault and battery setting forth a proper statement of the law in that particular, and, not having done this, he cannot complain of the court’s failure to give such instruction.

¶7To distinguish these authorities from the record before us would require hairsplitting in the ultimate degree. I respectfully submit that the detour attempted to avoid this obvious obstacle has not circumvented it, because it leads to a dead end via a blind alley. We are required by the statute quoted in the majority opinion to review alleged errors in a case where capital punishment has been imposed whether or not exceptions were saved after an adverse ruling on an objection properly made. The taking of human life, even of one who has actively participated in the brutal assassination of an officer of die law who was only making a conscientious effort to afford the protection, of the law to persons entitled thereto, is a serious matter, and great caution and circumspection should be exercised to see that due process of law has been observed. The statute is accordingly appropriate, and we should, and do, carefully examine rulings on questions properly presented to the trial court. The statute has never been stretched to the point it is now said to reach by the majority, and I submit that it is not that elastic. The requirement of a request for a specific instruction on a specific issue simply cannot be equated with the saving of exceptions. The former serves to clearly present a question for a ruling by the court, as does an objection. An exception simply indicates to the trial judge and the adversary that the exceptor does not acquiesce in the court’s ruling. Clearly the making of a proper record of objections, even in matters pertaining to instructions is not excused by this statute. Fields v. State, 235 Ark. 986, 363 S. W. 2d 905; Jenkins v. State, 222 Ark. 511, 261 S. W. 2d 784.

¶8I would affirm the judgment.