{
  "id": 8720045,
  "name": "Robert Lee WHITE v. STATE of Arkansas",
  "name_abbreviation": "White v. State",
  "decision_date": "1979-09-17",
  "docket_number": "CR 78-200",
  "first_page": "499",
  "last_page": "504",
  "citations": [
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      "cite": "266 Ark. 499"
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    {
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      "cite": "585 S.W.2d 952"
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    "id": 8808,
    "name": "Arkansas Supreme Court"
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      "cite": "58 L. Ed. 194",
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      "reporter": "L. Ed.",
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      "cite": "99 S. Ct. 220",
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      "reporter": "S. Ct.",
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    {
      "cite": "439 U.S. 882",
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      "reporter": "U.S.",
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      "reporter": "S.W.2d",
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      "cite": "265 Ark. 955",
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      "category": "reporters:state",
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      "category": "reporters:state",
      "reporter": "Ark.",
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      "cite": "262 Ark. 476",
      "category": "reporters:state",
      "reporter": "Ark.",
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  "last_updated": "2023-07-14T22:44:50.628261+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "We agree: Harris, C.J., and Byrd and Purtle, JJ."
    ],
    "parties": [
      "Robert Lee WHITE v. STATE of Arkansas"
    ],
    "opinions": [
      {
        "text": "Frank Holt, Justice.\nIn accordance with a jury verdict, appellant was sentenced to life imprisonment for rape (see Ark. Stat. Ann. \u00a7 41-1803 [Repl. 1977]). 20 years for burglary (see Ark. Stat. Ann. \u00a7 41-2002 [Repl. 1977]), and 20 years for criminal attempt to commit first degree murder (see Ark. Stat. Ann. \u00a7\u00a7 41-701, 41-703 and 41-1502 [Repl. 1977]). The sentences are to run consecutively.\nAppellant first contends, through present counsel, that there is no substantial evidence to support the conviction of attempt to commit murder in the first degree. On appellate review, we affirm if there is any substantial evidence, when viewed most favorably to the appellee, to support the jury\u2019s findings. Pope v. State, 262 Ark. 476, 557 S.W. 2d 887 (1977); and Merritt v. State, 258 Ark. 558, 528 S.W. 2d 365 (1975). \u00a7 41-701 provides:\nA person attempts to commit an offense if he:\n(b) purposely engages in conduct that constitutes a substantial step in a course of conduct intended to culminate in the commission of an offense whether or not the attendant circumstances are as he believes them to be.\n\u00a7 41-1502 provides:\n(1) A person commits murder in the first degree if:\n(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\n(b) with the premeditated and deliberated purpose of causing the death of another person, he causes the death of any person.\nAppellant argues that his conviction cannot be sustained under either subsection of \u00a7 41-1502 (1) in that the state did not prove premeditated and deliberated conduct as required under subsection (b), and that there is no \u201cattempted felony murder rule in Arkansas\u201d as codified in subsection (a). Appellee responds that the two subsections, however, are set forth in the alternative. Therefore first degree murder may be proven under either, and appellant attempted to commit murder as defined in section (1).\nAccording to the Commentary, \u00a7 41-1502 (1) (a) \u201ccarries forward the felony murder doctrine. The Code provision differs from earlier law in that liability arises for a killing in the course of and in furtherance of any felony . . . . \u201d The intent to kill is immaterial. The scope of the statute has been limited only by a requirement that the death occur under \u201ccircumstances manifesting extreme indifference to the value of human life.\u201d Appellant relies on pre-code cases in support of his assertion that the crime of attempted felony murder, as charged here, does not exist. However, in Stout v. State, 263 Ark. 355, 565 S.W. 2d 23 (1978), a case under the present code, there was, as here, no actual killing. We affirmed the life sentence of the accused for attempted capital murder of a police officer citing \u00a7 41-701 supra, combined with \u00a7 41-1501. It follows that sufficient proof of an attempt to kill a person as defined by \u00a7\u00a7 41-701 and 41-1502 (1) (a) constitutes a criminal offense.\nIn the case at bar the evidence is amply substantial to support the conviction of criminal attempt to commit murder. At approximately 3 a.m., appellant entered the Ballance home through a window. Mrs. Ballance and her children were asleep in the living room. During the 30 to 40 minutes appellant was inside the house, he continuously threatened to kill members of the Ballance family. He periodically aimed his gun at various members and fired two shots at Mr. Ballance, barely missing him on both occasions. Mr. Ballance testified that one bullet \u201cwas close, just above my head. . . \u201d \u201c[Y]ou could feel it.\u201d Appellant, identified by the Ballances, then raped Mrs. Ballance. Certainly the jury could find that the shots constituted a \u201csubstantial step in a course of conduct intended to culminate in the commission of [the] offense\u201d of murder \u201cin the course of and in the furtherance of the\u201d commission of the felonies of burglary and rape \u201cunder circumstances manifesting extreme indifference to the value of human life\u201d. See \u00a7\u00a7 41-701 and 41-1502 (1) (a). Appellant also argues that the shots were fired merely as warnings and that there were numerous opportunities to kill Mr. Ballance had that been his intent. It was for the jury to resolve any discrepancies, conflicts and inconsistencies in the testimony of the witnesses. Scott v. State, 254 Ark. 271, 492 S.W. 2d 902 (1973); and Stout v. State, supra.\nAppellant also contends that there is no substantial evidence to support the conviction for burglary. He argues that the appellee failed to prove that he entered the house with the purpose of committing a felony. Ark. Stat. Ann. \u00a7 41-2002 (Repl. 1977) provides:\n(1) A person commits burglary if he enters or remains unlawfully in an occupiable structure of another person with the purpose of committing therein any offense punishable by imprisonment.\nThe evidence previously recited is amply substantial to sustain the jury\u2019s finding that appellant committed the offense of burglary.\nAppellant\u2019s next contention for reversal relates to the sufficiency of an instruction. The court instructed the jury in the statutory language which defines criminal attempt. \u00a7 41-701. Appellant argues that the court erred in failing to instruct the jury on the underlying offense of murder in the first degree. Appellant made only a general objection to the instruction. He stated no specific matter to which he objected nor the grounds for the objection. Neither did appellant proffer an instruction to which he now asserts he was entitled. Having failed to make a specific objection to the instruction given or to request an additional instruction, the issue cannot be raised for the first time on appeal. Bousquet v. State, 261 Ark. 263, 548 S.W. 2d 125 (1977).\nAppellant next contends that he was denied the right of allocution which is accorded to him by Ark. Stat. Ann. \u00a7 43-2303 (Repl. 1977). It provides:\nWhen the defendant appears for judgment.... he must be asked if he has any legal cause to show why judgment should not be pronounced against him.\nIn Rogers v. State, 265 Ark. 955, 582 S.W. 2d 7 (1979), we reiterated that the purpose of the statute was to give the accused, upon sentencing, an opportunity to show any cause why sentence should not be pronounced. Where a question is addressed to the defendant which affords him an opportunity to express why sentencing should not be pronounced, it is unnecessary that the precise language of the statute be used. Clark v. State, 264 Ark. 630, 573 S.W. 2d 622 (1978). Here, following the jury verdict, the court asked appellant, \u201cHave you anything to say?\u201d Appellant responded, \u201cNo, sir.\u201d On appeal the appellant urges that he would have requested that the sentence be postponed on the ground that he was insane, and stated that he had been under the influence of drugs on the night of the crime, had he \u201cbeen allowed to speak.\u201d However, appellant was allowed to speak. Also appellant was present with counsel and no objection was raised to the procedure followed by the court. We have held that even in capital cases it is necessary to make an objection in the trial court in order to raise the issue on appeal. Hulsey v. State, 261 Ark. 449, 549 S.W. 2d 73 (1977), cert. den. 439 U.S. 882, 99 S. Ct. 220, 58 L. Ed. 194 (1978). Here, appellant has not demonstrated he was denied his right of allocution.\nAffirmed.\nWe agree: Harris, C.J., and Byrd and Purtle, JJ.",
        "type": "majority",
        "author": "Frank Holt, Justice."
      }
    ],
    "attorneys": [
      "Mark W. Nichols, for appellant.",
      "Steve Clark, Atty. Gen., by: Catherine Anderson, Asst. Atty. Gen., for appellee."
    ],
    "corrections": "",
    "head_matter": "Robert Lee WHITE v. STATE of Arkansas\nCR 78-200\n585 S.W. 2d 952\nOpinion delivered September 17, 1979\n(Division II)\nMark W. Nichols, for appellant.\nSteve Clark, Atty. Gen., by: Catherine Anderson, Asst. Atty. Gen., for appellee."
  },
  "file_name": "0499-01",
  "first_page_order": 525,
  "last_page_order": 530
}