Sanders v. State

¶1concurring. I agree with the result in this case. We decided in Swaite v. State, 272 Ark. 128, 612 S.W.2d 307 (1981), that under the capital murder statute a person could be charged with the commission of capital murder and the underlying felony but could not be convicted of both. That same principle was applied in the case of Rowe v. State, 275 Ark. 37, 627 S.W.2d 16(1982), when the charge was attempted capital felony murder. Necessarily, that principle has been applied when one is charged with committing a first degree battery under paragraph (d) of Ark. Stat. Ann. § 41-1601 (Repl. 1977), because such a battery is committed in the course of a felony. This does not necessarily preclude a person from being charged and convicted of aggravated robbery and first degree battery; and if indeed there are two separate acts involved, the prosecuting attorney should not charge a defendant with first degree battery in violation of § 41-1601 (d) but with one of the other three possible charges for first degree battery.