{ "id": 1174907, "name": "Chester WARREN v. STATE of Arkansas", "name_abbreviation": "Warren v. State", "decision_date": "1981-03-23", "docket_number": "CR 80-210", "first_page": "231", "last_page": "240", "citations": [ { "type": "official", "cite": "272 Ark. 231" }, { "type": "parallel", "cite": "613 S.W.2d 97" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "270 Ark. 781", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1709251 ], "weight": 5, "year": 1980, "pin_cites": [ { "page": "785" } ], "opinion_index": 0, "case_paths": [ "/ark/270/0781-01" ] }, { "cite": "217 Ark. 679", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8723506 ], "weight": 2, "year": 1950, "opinion_index": 0, "case_paths": [ "/ark/217/0679-01" ] }, { "cite": "271 Ark. 682", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1756145 ], "weight": 2, "year": 1981, "opinion_index": 0, "case_paths": [ "/ark/271/0682-01" ] }, { "cite": "269 Ark. 104", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1712466 ], "weight": 2, "year": 1980, "opinion_index": 0, "case_paths": [ "/ark/269/0104-01" ] }, { "cite": "258 Ark. 565", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1621247 ], "weight": 2, "year": 1975, "opinion_index": 0, "case_paths": [ "/ark/258/0565-01" ] }, { "cite": "266 Ark. 465", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8719757 ], "weight": 2, "year": 1979, "opinion_index": 0, "case_paths": [ "/ark/266/0465-01" ] }, { "cite": "262 Ark. 267", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1675841 ], "weight": 2, "year": 1977, "opinion_index": 0, "case_paths": [ "/ark/262/0267-01" ] }, { "cite": "217 Ark. 679", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8723506 ], "weight": 2, "year": 1950, "opinion_index": 1, "case_paths": [ "/ark/217/0679-01" ] } ], "analysis": { "cardinality": 799, "char_count": 16191, "ocr_confidence": 0.833, "pagerank": { "raw": 1.313227970923285e-07, "percentile": 0.6249146185742875 }, "sha256": "07896b022f44fc917812ffa0124871fd5c64dd34ead8345f1d29758847d6c967", "simhash": "1:d6bcc1146e364b1c", "word_count": 2755 }, "last_updated": "2023-07-14T20:44:04.069601+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Purtle, J., dissents." ], "parties": [ "Chester WARREN v. STATE of Arkansas" ], "opinions": [ { "text": "Robert H. Dudley, Justice.\nAppellant Chester Warren was convicted of terroristic threatening, a class D felony. The facts are basically undisputed. Troyce Jones, a county employee, and Billy Workman, a passenger, were in the process of grading a road in Yell County, when the appellant came out of some adjoining woods armed with a rifle. The men continued grading until appellant insisted they stop. When both men got down from the grader, appellant pointed his rifle at them and threatened to shoot one of them, Billy Workman. They did get back on the grader without any shots being fired and continued to grade the road. However, appellant threatened to shoot at the grader if they did not raise the blade. Apparently he was under the impression that the grader was on his land alongside the road and the road was not a county one but a private road running through his property.\nWe have taken jurisdiction in this case to interpret and construe Ark. Stat. Ann. \u00a7 41-1608 (Repl. 1977), the terroristic threatening statute. Appellant makes the novel argument that the facts proven might constitute an assault, but not terroristic threatening. His reasoning, based on the comments to the Arkansas Criminal Code, is as follows: Assaults are traditional offenses and involve risks of (1) death, (2) serious physical injury, (3) physical injury and (4) purposeful creation of apprehension of imminent physical harm. Terroristic threatening is a new statutory offense and is designed to protect against fear of safety where the apprehension arises from conduct not punishable as assaultive because imminent injury is not threatened. That is, terroristic threatening involves conduct causing a prolonged state of fear, while an assault does not have this protracted impact. For example, Ark. Stat. Ann. \u00a7 41-1607 (Repl. 1977) provides: \u201cA person commits assault in the third degree if he purposely creates apprehension of imminent physical injury in another person.\u201d\nAppellant acknowledges that the assault, or imminent injury statute is only a misdemeanor statute, while the terroristic threatening provision is a felony statute.\nThe statute involved, Ark. Stat. Ann. \u00a7 41-1608 (Repl. 1977) is as follows:\nTerroristic threatening. \u2014 (1) A person commits the offense of terroristic threatening if with the purpose [of] terrorizing another person he threatens to cause death or serious physical injury or substantial property damage to another person.\n(2) Terroristic threatening is a class D felony. [Acts of 1975, No. 280, \u00a7 1608, p. 500.]\nWhile we strictly construe a penal statute, we find no language which requires terrorizing over a prolonged period of time.\nWe use three well settled rules of review in determining whether the evidence is sufficient to sustain the finding of guilt. We view the evidence in a light most favorable to the appellee, the State here. Milburn v. State, 262 Ark. 267, 555 S.W. 2d 946 (1977). The jury\u2019s finding of guilt will be upheld if there is any substantial evidence to support it. McCree v. State, 266 Ark. 465, 585 S.W. 2d 938 (1979). It is not the function of an appellate court to weigh evidence or judge the credibility of witnesses; that is the function of the jury. Barnes v.State, 258 Ark. 565, 528 S.W. 2d 370(1975). There is substantial evidence that appellant, while armed with a rifle, threatened to shoot both prosecuting witnesses, and intended to cause, and did cause, both of them to fear for their lives.\nThe jury made its finding and there is substantial evidence to support it.\nThe assault statutes and the terroristic threatening statute overlap and we do not consider the issue other than to state that in Cromwell v. State,269 Ark. 104, 598 S.W. 2d 733(1980) and Wilson v. State, 271 Ark. 682, 611 S.W. 2d 739 (1981), we noted that the mere overlapping of statutory provisions does not render a statute unconstitutional.\nIn this second assignment of error, appellant contends that a remark made by the trial judge in the presence of the jury constituted a comment on the evidence requiring reversal. We disagree.\nPrior to trial, the court entered a discovery order requiring disclosure of any defense to be used at trial. The defendant did not respond. At trial one of the defense attorneys began to ask a series of questions going to the legal status of the road on which the incident occurred. The trial judge, not knowing appellant\u2019s defense, after an objection, questioned relevancy of this testimony. A colloquy occurred between counsel and the attorneys for both sides. Finally, the judge stated:\nWhat\u2019s puzzling me is what difference does it make? I don\u2019t think it\u2019s relevant is what I am saying.\nAn in-chambers conference followed and appellant\u2019s attorney was then allowed to pursue the line of inquiry.\nArticle 7, \u00a7 23 of our constitution states that judges shall not \u201ccharge juries with regard to matters of fact\u201d and so precludes them from commenting on the evidence. The judge is not to influence the jury with regard to the credibility of witnesses or the weight to be given their testimony. The prohibition applies not only to charges, but to colloquys with lawyers in the jury\u2019s hearing. Fuller v. State, 217 Ark. 679, 232 S.W. 2d 988 (1950). Clearly, if this inquiry into relevance could influence the jury in any manner, the case must be reversed, but since the appellant was allowed to pursue the line of questioning after the inquiry, we can see no possible inference on credibility, weight to be given, or any other matter. We hold the questioning into relevancy did not amount to a comment on the evidence.\nAppellant contends that the trial judge was unmerited in the rebuke of a witness. The point was not preserved with an objection, and no authority is cited. Therefore, we do not consider the point. Wicks v. State, 270 Ark. 781, 606 S.W. 2d 366 (1980).\nAppellant makes three additional assignments of error which relate to evidentiary rulings. We find no reversible error in those rulings and we find no principles of law or statutory interpretation which necessitate discussion.\nHowever, it is necessary to state why this majority opinion does not consider two issues that are mentioned in the dissenting opinion: the reaction of the trial judge to the bickering of the attorneys and the form of the verdict rendered by the jury. The reason is because there were no objections to either of these issues below and no argument has been made on either issue here. As a result, there has been no adversary representation of both sides.\nThe importance of an adversary procedure is illustrated by the alleged error in the form of the verdict discussed in the dissent. We do not know what instructions were given with regard to the verdict, nor do we know what forms of verdict were given to the jury. We do not know whether there was a verdict for finding the appellant guilty or not guilty of terroristic threatening. We also do not know what appellant was found guilty of \u2014 we only know the fine was in the amount of $500. We know that the attorneys for the appellant chose, perhaps as a carefully considered matter of trial strategy, not to object and not to abstract or argue the matter on appeal. The majority feel that it would amount to speculation if we consider the issue under these circumstances; the same reasoning applies to the other non-preserved and unargued issue.\nThe case of Wicks v. State, 270 Ark. 781 at 785, 606 S.W. 2d 366 (1980) contains a clear and complete description of our rule that an argument for reversal will not be considered in the absence of an appropriate objection in the trial court. We expressly rejected the \u201cplain error\u201d rule in that case and these issues do not fall within one of the enumerated exceptions to our rule. See Wicks, supra. We do not intend to deviate from our policy concerning non-preserved issues; thus, we did not consider the aforementioned issues.\nAffirmed.\nPurtle, J., dissents.", "type": "majority", "author": "Robert H. Dudley, Justice." }, { "text": "John I. Purtle, Justice,\ndissenting. In order to understand the case I think we should set out Ark. Stat. Ann. \u00a7 41-1607 (1) (Repl. 1977), which states:\nA person commits assault in the third degree if he purposely creates apprehension of imminent physical injury in another person.\nThe statute immediately following is Ark. Stat. Ann. \u00a7 41-1608 (1) (Repl. 1977), which reads:\nA person commits the offense of terroristic threatening if with the purpose (of) terrorizing another person he threatens to cause death or serious physical injury or substantial property damage to another person.\nThe commentary following \u00a7 41-1608 states:\nTerroristic threatening is a new offense encompassing conduct dealt with ineffectively by prior law. Several considerations led the Commission to deal with the conduct proscribed as a separate offense. First, the section is designed to reach efforts to terrorize another by conduct not punishable as assaultive because apprehension of imminent injury is not required. The extreme nature of the harm threatened also distinguishes this kind of behavior from that proscribed by \u00a7 41-1607 and led to treatment of the conduct as a discrete crime.\nIt is at once obvious that terroristic threatening is a separate classification of offenses which was inserted into the statutes after the statute for assault in the third degree had been perfected. If it were intended that terroristic threatening include the exact same acts as assault in the third degree, it would have, of course, been unnecessary to include them under separate offenses. Therefore, it seems clear that the legislature intended that terroristic threatening be a separate and distinct activity from that used to describe assault in the third degree.\nThe terroristic threatening statute is not descriptive of an assaultive offense. On the other hand, the assault statute clearly indicates apprehension of imminent physical injury. Certainly, there was a period of a few minutes in the present case when the prosecuting witnesses may have been under the apprehension they would be immediately assaulted. The record is absolutely void of any indication that the prosecuting witnesses considered the incident to be of a lasting duration.\nIt seems to me that the assault statutes were clearly intended for cases which were over and complete in a matter of a short period of time. On the other hand, terroristic threatening surely intended to cover such cases as threats by telephone or mail or continuing conduct to cause the other party to be terrorized. If in the present case the appellant had said, \u201cI am going to shoot you now,\u201d it would have been an assault. If he had said, \u201cEven though I\u2019m not going to shoot you now, I\u2019m going to get you at some time down the line,\u201d then, in my opinion, he would have been guilty of terroristic threatening.\nIt is regrettable but the record indicates attorneys on both sides were antagonistic toward each other. This creates an intolerable position for the trial judge and often leads to actions which would not otherwise be taken. On several occasions the conflict between the attorneys became so apparent that the court went into chambers to cool them down. At times the conduct of the attorneys was almost uncontrolled. All of this tended to force the judge to frequently intervene with the proceedings. No doubt, this left the jury in a condition where they could not freely concentrate on the facts of the case. The position of a trial judge is not an easy one and a good description of his function at a jury trial is found in Fuller v. State, 217 Ark. 679, 232 S.W. 2d 988 (1950), where Justice Leflar stated:\nA Circuit Judge presiding at a jury trial should not be a mere automaton on the bench, exerting no control over what goes on before him. He should be more than a moderator who keeps order while counsel do and say what they please before the jury. It is his duty to see not only that the trial proceeds in accordance with law, but that it proceeds efficiently and effectively, and in keeping with the ends of justice. He should, among other things, be free to shut off long-winded and irrelevant testimony or questioning, and to confine counsel to the actual issues in the case being tried. The firm and fair administration of the trial is a part of his job.\nNo doubt, the court became irritated on several occasions, one in particular which comes to mind when the court addressed an attorney as follows:\nMr. Witt, you will do two things if you want to continue this trial. You will quit waving that pencil in my face and you\u2019ll get behind the podium. *** You will not unduly repeat questions. We all have limits to our time including me, you, the jury, everyone. You are unduly repetitious.\nStill a little further the court was obviously a little vexed at a time when the motion of the state was sustained on certain testimony relating to hearsay. The appellant was listening to the dialogue between the attorneys and the court, about the hearsay rule, interrupted and said:\nTHE WITNESS: That\u2019s not hearsay. The man was right in front of me.\nTHE COURT: The witness will remain silent until his attorney or the court asks him a question. This is the second time, sir.\nTHE WITNESS: Sorry, Your Honor.\nTHE COURT: Sir, you will remain silent until your attorney \u2014\nTHE WITNESS: Yes, sir.\nTHE COURT: Sir, you will remain silent.\nTHE WITNESS: Thank you.\nTHE COURT: I\u2019m not going to tell you a fourth time. All right?\nThere appears to have been a considerable dispute as to whether the road in question here was a public road or a private road. The court made a statement before the jury which was objected to by the appellant. The court\u2019s statement was:\nWhat\u2019s puzzling me is what difference does it make? I don\u2019t think it\u2019s relevant is what I\u2019m saying.\nThe court may have been entirely correct in the statement but the setting in which it was made no doubt had some impression on the jury. In other words, it probably caused the jury to think the appellant was making a lot to do about something which had no bearing on the trial. The truth of the matter is that if the road had been private and the property of the appellant, he very well may have had the right to do exactly what he did. I think it was relevant to show the condition of appellant\u2019s mind at the time.\nThere had obviously been several other lawsuits involving the parties and the subject matter of the road. The present attorneys had represented different parties in some of those actions. Appellant\u2019s attorney attempted to show that a state\u2019s attorney represented the wife of one of the prosecuting witnesses in one of the former court cases. The trial court sustained the state\u2019s objection on the ground that the former suit was immaterial. After a considerable amount of bickering the court had to take the attorneys into chambers again. At the in-chambers hearing the appellant moved for a mistrial which was denied.\nThere are so many objections that it is hard to read the record. It is no wonder the court became edgy under the circumstances. It seems to me from a totality of the circumstances in this case the jury most likely got the impression that appellant\u2019s attorney was guilty of misconduct and that the court may have been favoring the state\u2019s version of the facts. Therefore, upon consideration of all of the incidents, none of which would have been prejudicial in themselves, I think the case should be returned for another trial.\nFrom the record I am unable to determine whether the jury returned a verdict of guilty against the appellant. The only quotation from the jury is found within the judgment and it simply states:\nWe, the jury, assess a fine in the amount of $500.\nThe above statement was signed by the foreman, but there is no indication that the jury found the appellant guilty of terroristic threatening. From the attempt to assess punishment as a fine, it would appear the jury attempted to levy a misdemeanor punishment upon the appellant.\nI would reverse and remand for a new trial.", "type": "dissent", "author": "John I. Purtle, Justice," } ], "attorneys": [ "Ernie Witt and Tom Donovan, for appellant.", "Steve Clark, Atty. Gen., by: C. R. McNair, III, Asst. Atty. Gen., for appellee." ], "corrections": "", "head_matter": "Chester WARREN v. STATE of Arkansas\nCR 80-210\n613 S.W. 2d 97\nSupreme Court of Arkansas\nOpinion delivered March 23, 1981\nErnie Witt and Tom Donovan, for appellant.\nSteve Clark, Atty. Gen., by: C. R. McNair, III, Asst. Atty. Gen., for appellee." }, "file_name": "0231-01", "first_page_order": 249, "last_page_order": 258 }