¶1dissenting, The majority states that there is substantial evidence to support the conviction of the appellant of capital felony murder. I disagree.
¶2The appellant maintains that the state failed to prove beyond a reasonable doubt that a murder, kidnapping or rape occurred. To prove capital murder, the State must prove murder and one of the two underlying felonies.
¶3The evidence at the trial showed that the appellant was seen at the Fast Check store where the victim was last seen. A co-worker with the victim saw both the appellant and the victim at the store at the same time and later picked the appellant out of a line-up. The witness saw the victim drive off. He did not see the appellant in the car when the victim drove off. The witness testified he would customarily pass the victim on his way home from work since they both traveled the same route. On the night of the murder, he did not see her after she drove away. The victim’s car was last seen on Wednesday night before being found on Friday afternoon west of and under the old Memphis Arkansas Bridge. There were signs of a struggle both in the car and in the area around the car. The dirt and grass on the driver’s side was scuffed and knocked down. The car was unlocked and the keys were found on the ground to the right rear of the vehicle. A yellow cable with blood on it was found near the keys. In the car, officers found articles of the victim’s clothing with blood spots on them and blood on various parts of the car. A fingerprint was discovered on the dome light which was matched with one of the appellant’s. The forensic expert testified that the blood found in the car was blood type “O” which was the blood type of the victim, her husband, and the appellant. The undergarments were found to contain a large quantity of semen from a person with blood type “O.”
¶4The victim’s body was found in the river two months later. The body was identified by a dentist as the victim’s. The cause of death was from blunt trauma to the chest. The expert witness testified that the cable could have produced the type of injury and wound on the victim. The expert testified that the victim was either dead or dying when she was placed in the water.
¶5The appellant claims that the court should have directed a verdict for acquittal at the close of the State’s case because of the state’s failure to prove every element of the offense beyond a reasonable doubt as they are required by law. Small v. State, 5 Ark. App. 87, 632 S.W.2d 448 (1982). It appears the majority has allowed the prosecution to prove the conduct charged to the appellant by a preponderance of the evidence. The standard of proof in criminal cases is beyond a reasonable doubt. This case changes that standard.
¶6The Due Process Clause of the Fourteenth Amendment protects a defendant in a criminal case against conviction “except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship 397 U.S. 358, 364 (1970). This standard of proof “plays a vital role in the American scheme of criminal procedure,” because it operates to give “concrete substance” to the presumption of innocence, to ensure against unjust convictions, and to reduce the risk of factual error in a criminal proceeding. Id. at 363.
¶7This evidence was entirely circumstantial. I find it insufficient to support the jury verdict. The majority states there is substantial evidence but fails to state what that evidence is. The recognized test for substantial evidence is whether the jury could have reached its conclusion without having to resort to speculation and conjecture. Cassell v. State, 273 Ark. 59, 616 S.W.2d 485 (1981). This conviction is based upon evidence which lacks important elements as shown in cases cited by the majority where we found circumstantial evidence to be sufficient. In this case, there was no testimony by the victim concerning the rape that was corroborated by the doctor who examined her; nor was there testimony of witnesses that was probative on the issue of identification of the assailant. Such identification would serve to connect the appellant with the crime and thereby establish his identity as the perpetrator as shown in Fountain v. State, 273 Ark. 457, 620 S.W.2d 936 (1981). Under this record, the circumstances could be j ust as consistent with the guilt of innumerable people who might have had access to the victim on the night in question.
¶8The appellant also argues that the trial court erred when it denied his motion for mistrail after a police officer volunteered testimony about the appellant’s prior arrest record. During the trial, Memphis Police Officer Wilburn R. Marr testified that he made an ink fingerprint of the appellant when he was arrested. During the cross examination by appellant’s counsel, the following occurred:
Q. Officer Marr, were these the first taken here, or did you have to take any more than once?
A. No sir, that’s all I took. We do have a prior arrest record on him, which we do have a fingerprint card on. (emphasis added)
¶9The trial judge ruled that the officer’s response could well have been considered by him as being pertinent to the question and did not appear to be a deliberate effort by the officer to interject improper matters into the trial. Although we have held that when the appellant injects the matter into a case by questions on cross-examination, he cannot complain of what develops, that is not the situation here. The appellant’s attorney askéd the officer if he had to take the fignerprints more than once. The officer’s initial response of “No sir, that’s all I took,” was a responsive answer to the question. The second statement served no purpose, other than to inform the jury that the appellant had an arrest record. The judge overruled the appellant’s objection and did not admonish the jury to disregard the second statement, which would have served to nullify the prejudicial effect of that statement. See Back v. Duncan, 246 Ark. 494, 438 S.W.2d 690 (1969). The court’s failure to admonish the jury was error. In the absence of such an admonition, an error is presumed to be prejudicial unless the contrary affirmatively appears. Back, supra.
¶10In addition, the trial court committed reversible error when it failed to instruct the jury on the lesser included offenses to capital murder. Prior to giving any instructions, the judge stated:
Since the decision has been made not to include any lesser included offenses, either instruction or verdict form, I am removing those transitional instructions which mention those.
¶11The judge did not explain why the decision was made and the record does not reflect any discussion that may have taken place. We have held that there is no error in the refusal to give an instruction where there is no evidence to support the giving of that instruction. Couch v. State, 274 Ark. 29, 621 S.W.2d 694 (1981). The appellant in Couch was also charged with capital murder. There, we held that “[i]f there had been even slight evidence that appellant was guilty of murder in the first degree we would reverse and require an instruction on that lesser included offense.” First degree murder is defined in Ark. Stat. Ann. § 41-1502 (Repl. 1977) as:
(1) A person commits murder in the first degree if:
(a) acting alone or with one or more other persons, he commits or attempts to commit a felony, and in the course of and in the furtherance of the felony or in immediate flight therefrom, he or an accomplice causes the death of any person under circumstances manifesting extreme indifference to the value of human life; or
(b) with the premeditated and deliberate purpose of causing the death of another person, he causes the death of any person.
¶12Second degree murder is defined by Ark. Stat. Ann. § 41-1508 (Repl. 1977) as:
(1) A person commits murder in the second degree if:
(a) with the purpose of causing the death of another person, he causes the death of any person; or
(b) he knowingly causes the death of another person under circumstances manifesting extreme indifference to the value of human life; or
(c) with the purpose of causing serious physical injury to another person, he causes the death of any person.
¶13I cannot say that there is not slight evidence of the appellant’s guilt of these two lesser-included offenses and therefore the jury instruction should have been given. We held in Brewer v. State, 271 Ark. 254, 608 S.W.2d 363 (1980) that, “[n]o right has been more seriously protected by this Court than the right of an accused to have the jury instructions on lesser offenses included in the more serious offense charged.” We addressed the same issue and reached the same conclusion in Robinson v. State, 269 Ark. 90, 598 S.W.2d 421 (1980), where we stated that it is error to refuse to give the instruction, “no matter how strongly the trial judge feels that the evidence weighs in favor of a finding of guilty on the most serious charge. Our strong preference for such an instruction has even induced us to approve giving it over the defendant’s objections.” Here, the appellant did not object to the failure to give the instruction. In Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1970) we reiterated our fundamental rule “that an argument for reversal will not be considered in the absence of an appropriate objection in the trial court.” Exceptions have been made to that rule however, as was pointed out in Wicks. One exception dealt with two cases in which the death penalty was imposed where, “we did not require an objection the the trial court’s failure to bring to the jury’s attention a matter essential to its consideration of the death penalty itself.” Wicks, supra. Here, the trial court failed to bring to the jury’s attention a matter essential to the consideration of a sentence of life without parole. By omitting the instructions on lesser included offenses, the court presented the jury with the option of convicting the appellant of capital murder and sentencing him to death or life without parole, or acquitting him. Two other exceptions mentioned in Wicks are applicable. One involves the trial court’s duty to intervene in the absence of an obj ection, to correct a serious error, and the other is based on Ark. Unif. R. Evid. 103 (d) “Nothing in this rule precludes taking notice of errors affecting substantial rights although they were not brought to the attention of the court.” The failure to give the required instructions is a serious error and affects a substantial right of the appellant. Although appellant did not present this argument on appeal, it is properly before us because Ark. Sup. Ct. R. 11 (f), requires this court to review all errors prejudicial to the appellant when the sentence is death or life imprisonment.
¶14The appellant may be guilty. A jury of his peers found that he is. A majority of this Court agrees. But a consideration of the evidence has convinced the dissent that the evidence is too slight to support the underlying charges of rape and kidnapping and therefore to support the verdict. Justice would be better served to submit the facts to another j ury. In view of the other errors alleged and their cumulative prejudicial effect, I am of the opinion that a new trial should have been granted.