I concur in the results as to both points. However, as to the first point, I believe that if the prosecuting attorney offers an instruction which is proper under the evidence, justice would be better served if it were given. In other words, the fact that counsel for defendant may want to “gamble” is not sufficient reason to refuse it. Here the court refused (without objection) an instruction on the lesser degree of the crime because the defendant did not want it given. Undoubtedly, the counsel thought the jury would not convict his client of first degree rape, but might convict him of third degree rape.
I express no opinion on the second point. The record does not show that the court was asked to rule on the objection; in fact, it is not shown that it was even presented to the trial court. When the objection was made, the jury had been sent back to deliberate, which action is usually followed by an immediate recess. How are we to know but what the objection was simply dictated to the reporter out of the hearing of the trial judge? At least it was incumbent on the trial attorney to protect his record; so if the motion was presented to the judge and he refused to rule, that fact could easily be made to appear in the record. Certainly we cannot assume, absent a record to support it, that the trial judge neglected his duty.
Fogleman, J., concurs in my position on the second point. Conley Byrd, Justice.As I read the judge’s remarks, he told the jury that ‘ ‘ each of you should have a strong mind and conviction to be able to determine in your own mind the guilt or innocence of each defendant. Yet, you should be willing to yield your position to one on the jury who can reasonably be correct.” Subsequently, he told the jury “in the event you should elect to find either or both of the defendants guilty, you can under the Arkansas statutes, leave the sentencing and punishment to the court.” Counsel for the defendants objected to the remarks of the trial court, but the record does not show a ruling thereon. As I pointed out in the dissent in Cassell v. State, 242 Ark. 149, 412 S.W. 2d 610 (1967), the failure to save an exception to the ruling of the court does not waive the defendant’s constitutional rights. In Ward v. State, 236 Ark. 878, 370 S.W. 2d 425 (1963), we held that it was reversible error for the judge to instruct the jury that they could leave the sentencing to him before the jury had arrived at the guilt or innocence of the defendant.
When the court’s instructions are put together, it appears to me that the trial judge suggested to the jury that they should find the defendant guilty and leave the sentencing to the court.
For this reason, I dissent.