{ "id": 1449603, "name": "STATE of Arkansas v. Herbert JONES", "name_abbreviation": "State v. Jones", "decision_date": "1995-07-17", "docket_number": "CR 94-717", "first_page": "451", "last_page": "457", "citations": [ { "type": "official", "cite": "321 Ark. 451" }, { "type": "parallel", "cite": "903 S.W.2d 170" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "271 Ark. 147", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1756114 ], "weight": 2, "year": 1980, "opinion_index": 0, "case_paths": [ "/ark/271/0147-01" ] }, { "cite": "Ark. Code Ann. \u00a7 16-85-407", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1987, "opinion_index": 0 }, { "cite": "321 Ark. 413", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1449523 ], "opinion_index": 0, "case_paths": [ "/ark/321/0413-01" ] }, { "cite": "311 Ark. 248", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1897015 ], "weight": 2, "year": 1992, "pin_cites": [ { "parenthetical": "acquittal of charge of capital murder pursuant to directed verdict at close of state's evidence precluded retrial despite trial court error" }, { "parenthetical": "acquittal of charge of capital murder pursuant to directed verdict at close of state's evidence precluded retrial despite trial court error" } ], "opinion_index": 0, "case_paths": [ "/ark/311/0248-01" ] }, { "cite": "310 Ark. 516", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1898944 ], "weight": 3, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/310/0516-01" ] }, { "cite": "292 Ark. 510", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1871196 ], "weight": 2, "year": 1987, "opinion_index": 0, "case_paths": [ "/ark/292/0510-01" ] }, { "cite": "309 Ark. 228", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1906098 ], "weight": 2, "year": 1992, "pin_cites": [ { "parenthetical": "affirming appellant's conviction for first degree murder and finding no error in trial court's refusal to give an instruction on a lesser included offense after appellant asserted defense of justification by self defense where the testimony revealed no rational basis for the instruction" } ], "opinion_index": 0, "case_paths": [ "/ark/309/0228-01" ] }, { "cite": "290 Ark. 417", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1873681 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/ark/290/0417-01" ] }, { "cite": "308 Ark. 444", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1904343 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/308/0444-01" ] }, { "cite": "309 Ark. 316", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1906035 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/309/0316-01" ] }, { "cite": "313 Ark. 64", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1914588 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark/313/0064-01" ] }, { "cite": "314 Ark. 329", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1912808 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark/314/0329-01" ] }, { "cite": "320 Ark. 437", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1451158 ], "weight": 2, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/320/0437-01" ] }, { "cite": "290 Ark. 408", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1873782 ], "weight": 4, "year": 1986, "pin_cites": [ { "page": "414" }, { "page": "697" } ], "opinion_index": 0, "case_paths": [ "/ark/290/0408-01" ] }, { "cite": "310 Ark. 419", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1898831 ], "weight": 5, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/310/0419-01" ] }, { "cite": "306 Ark. 402", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1900934 ], "weight": 2, "year": 1991, "pin_cites": [ { "parenthetical": "dismissal of felony charge against appellee did not preclude this court's review of proceedings for legal error under Rule 36.10" }, { "parenthetical": "dismissal of felony charge against appellee did not preclude this court's review of proceedings for legal error under Rule 36.10" } ], "opinion_index": 0, "case_paths": [ "/ark/306/0402-01" ] }, { "cite": "876 S.W.2d 577", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1443811, 1443758 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/ark/317/0226-01", "/ark/317/0231-01" ] }, { "cite": "317 Ark. 226", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1443811 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/ark/317/0226-01" ] }, { "cite": "Ark. Code Ann. \u00a7 5-1-110", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1993, "pin_cites": [ { "page": "(c)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 519, "char_count": 9457, "ocr_confidence": 0.892, "pagerank": { "raw": 2.8900874821600984e-07, "percentile": 0.844246131724282 }, "sha256": "77dce22e6f2049f25a38e0173a16c0ef42b0618232c1b638bddeb577fb9ac74e", "simhash": "1:ab5ebc2e972a74f2", "word_count": 1588 }, "last_updated": "2023-07-14T20:21:00.559388+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Newbern, Brown, and Roaf, JJ., concur in the opinion except for the reference to Doby v. State. See Brown v. State, 321 Ark. 413, released this date.", "Holt, C.J., not participating." ], "parties": [ "STATE of Arkansas v. Herbert JONES" ], "opinions": [ { "text": "Donald L. Corbin, Justice.\nAppellant, the State of Arkansas, appeals the order of the Pulaski County Circuit Court dismissing the first degree murder charge against appellee Herbert Jones. The state brings this appeal pursuant to Ark. R. Crim. P. 36.10(c), and asserts as the sole point of error the trial court\u2019s denial of its proffered jury instructions for the crimes of murder in the second degree and manslaughter as lesser included offenses of the crime charged. Our jurisdiction is proper pursuant to Ark. Sup. Ct. R. l-2(a)(3) because this case questions the interpretation or construction of Rule 36.10(c) and Ark. Code Ann. \u00a7 5-1-110(c) (Repl. 1993). We declare error.\nAppellee was charged by felony information with first degree murder for the death of his former business associate Dan Baker. At trial, appellee testified he shot Baker in self-defense and did not intend to murder him. The evidence showed the shooting occurred during a scheduled meeting between appellee and Baker at appellee\u2019s office and there was no eyewitness to the shooting other than appellee. The autopsy report showed Baker died of a single gunshot wound to the chest.\nAt the conclusion of all proof in the case, the trial judge and counsel discussed jury instructions in chambers where the following colloquy occurred:\nTHE COURT: AMCI, lesser included. You have included lesser included, I suppose, all the way down to manslaughter.\n[DEPUTY PROSECUTING ATTORNEY]: In anticipatory. I always do that.\nTHE COURT: You didn\u2019t?\n[DEFENSE COUNSEL]: No, sir.\nTHE COURT: You want to gamble on it?\n[DEFENSE COUNSEL]: Yes.\nTHE COURT: If they want to gamble, I think it is their choice, if they don\u2019t want lesser.\n[DEFENSE COUNSEL]: My position is, I am objecting to any and all of them less than murder in the first degree. I want to make sure that my client agrees.\n[DEFENSE COUNSEL]: Judge, I have visited with my client and he wishes to stand on the instruction of murder in the first degree.\nTHE COURT: All right.\nThe state proffered instructions to the trial court, pursuant to section 5-1-110(c), for murder in the second degree and for manslaughter as lesser included offenses of murder in the first degree. Over the state\u2019s objection, however, the only crime with respect to which the jury was instructed was murder in the first degree. Appellant\u2019s requested instruction on the defense of justification by self-defense was given. The jury returned a verdict of not guilty.\nIn addressing an appeal by the state, we first must determine whether the correct and uniform administration of the criminal law requires our review pursuant to Rule 36.10(c). To the extent we conclude that requirement is met in this appeal, we will consider its merits. The fact that appellee was acquitted by the trial court does not preclude our review of an asserted legal error below. State v. Johnson, 317 Ark. 226, 876 S.W.2d 577 (1994); see also State v. Thornton, 306 Ark. 402, 815 S.W.2d 386 (1991) (dismissal of felony charge against appellee did not preclude this court\u2019s review of proceedings for legal error under Rule 36.10).\nThe state argues it was entitled to instructions on the lesser included offenses of murder in the second degree and manslaughter, as a matter of law, pursuant to section 5-1-110(c), given the proof it presented in this case. Section 5-1-110(c) provides: \u201cThe court shall not be obligated to charge the jury with respect to an included offense unless there is a rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense.\u201d We have held that where a rational basis for a verdict of acquittal on the greater offense and conviction on the lesser offense exists, the trial court should give the lesser included offense instruction and it is reversible error not to do so. Rainey v. State, 310 Ark. 419, 837 S.W.2d 453 (1992). Error occurs when the trial court refuses to give the lesser included instruction where there is the slightest evidence to warrant it. Id.\nWe declare the trial court in the present case erred in its refusal to give the state\u2019s proffered instructions to the extent that ruling was based upon the rationale \u2014 \u201cIf they want to gamble, I think it is their choice, if they don\u2019t want lessers\u201d \u2014rather than a finding that no rational basis for the instruction existed. Plainly, section 5-1-110(c) does not delegate the decision regarding the propriety of a lesser included offense instruction to the defendant, but requires the trial court to determine whether the proffered instruction concerns a lesser included offense and, if so, whether a rational basis exists for a verdict acquitting the defendant of the greater offense and convicting him of the lesser. As the commentary to Ark. Stat. Ann. \u00a7 41-105, now codified as section 5-1-110(c), indicates, the General Assembly\u2019s purpose for this provision was to authorize the trial court \u201cto refuse to instruct on an included offense when the evidence mandates either conviction of the greater offense or acquittal.\u201d\nWe are mindful of our decision in Doby v. State, 290 Ark. 408, 720 S.W.2d 694 (1986), which we described as a case of \u201call or nothing.\u201d Id. at 414, 720 S.W.2d at 697. In Doby we held the trial court did not err in finding no rational basis existed where the defense theory was that there was no truth at all to the state\u2019s case and the defendant\u2019s testimony completely denied committing the act with which he was charged. We have reiterated this ruling many times in cases where the theory of defense was premised upon a complete denial of the defendant\u2019s participation in the act charged. E.g., Vickers v. State, 320 Ark. 437, 898 S.W.2d 26 (1995); Franklin v. State, 314 Ark. 329, 863 S.W.2d 268 (1993); Vickers v. State, 313 Ark. 64, 852 S.W.2d 787 (1993); Fry v. State, 309 Ark. 316, 829 S.W.2d 415 (1992); Watson v. State, 308 Ark. 444, 825 S.W.2d 569 (1992); Flurry v. State, 290 Ark. 417, 720 S.W.2d 699 (1986).\nThe present case, however, is distinguishable from Doby and its progeny because appellee did not deny shooting Baker, but presented a defense based on his intention in and justification for committing that act. On these facts, the Doby rule is not applicable. See Frazier v. State, 309 Ark. 228, 828 S.W.2d 838 (1992) (affirming appellant\u2019s conviction for first degree murder and finding no error in trial court\u2019s refusal to give an instruction on a lesser included offense after appellant asserted defense of justification by self defense where the testimony revealed no rational basis for the instruction); accord, Rainey, 310 Ark. 419, 837 S.W.2d 453 (reversing appellant\u2019s conviction for first degree murder for trial court\u2019s refusal to give instruction on lesser included offense where appellant admitted shooting the victim out of anger); Fladung v. State, 292 Ark. 510, 730 S.W.2d 901 (1987) (reversing appellant\u2019s conviction for attempted capital murder for trial court\u2019s refusal to give instruction on lesser included offenses where appellant admitted retrieving a pistol from his car and presented a defense based largely on why he grabbed the weapon and what he intended to do with it thereafter).\nWe do not address the ultimate issue of whether application of section 5-1-110(c) to the facts of this case would have entitled the state to the proffered instructions. The state has no right to appeal beyond that conferred by the constitution or rules of criminal procedure. State v. Edwards, 310 Ark. 516, 838 S.W.2d 356 (1992). As a matter of practice under Rule 36.10(c), we only take appeals that are narrow in scope and involve the interpretation of the law. Id. Therefore, to the extent this appeal merely raises an issue of the application of section 5-1-110(c) to the facts of this case, rather than its interpretation, the appeal does not involve the correct and uniform administration of the criminal law and is not addressed by this court.\nWe can do no more than declare the error of the trial court identified in this opinion. We cannot reverse the judgment because appellee\u2019s acquittal prevents the state from retrying him on the same charge. State v. Long, 311 Ark. 248, 844 S.W.2d 302 (1992) (acquittal of charge of capital murder pursuant to directed verdict at close of state\u2019s evidence precluded retrial despite trial court error).\nError Declared.\nNewbern, Brown, and Roaf, JJ., concur in the opinion except for the reference to Doby v. State. See Brown v. State, 321 Ark. 413, released this date.\nHolt, C.J., not participating.\nWe are aware of no prior appeal by the state on this issue. Doubtless, this circumstance is due to the fact that the state determines the charges brought against the defendant, and, subject to the restrictions of Ark. Code Ann. \u00a7 16-85-407 (1987), may amend the charging instrument even after the trial commences. With respect to section 5-1-110(c), however, we observe that statute does not expressly confer a right to a lesser included offense instruction solely upon the defendant. Further, this court has stated that, in appropriate cases, the instruction should be given over the defendant\u2019s objection. Lampkin v. State, 271 Ark. 147, 607 S.W.2d 397 (1980).", "type": "majority", "author": "Donald L. Corbin, Justice." } ], "attorneys": [ "Winston Bryant, Att\u2019y Gen., by: Clint Miller, Acting Deputy Att\u2019y Gen., for appellant.", "Charles A. Banks, Mark S. Carter, and B. Jeffrey Pence, for appellee." ], "corrections": "", "head_matter": "STATE of Arkansas v. Herbert JONES\nCR 94-717\n903 S.W.2d 170\nSupreme Court of Arkansas\nOpinion delivered July 17, 1995\nWinston Bryant, Att\u2019y Gen., by: Clint Miller, Acting Deputy Att\u2019y Gen., for appellant.\nCharles A. Banks, Mark S. Carter, and B. Jeffrey Pence, for appellee." }, "file_name": "0451-01", "first_page_order": 501, "last_page_order": 507 }