dissenting. The State proved that a terrible crime had been committed. It proved that the appellant is no doubt a professional thief. The State did not prove by any acceptable legal standard that this appellant is guilty of killing the policeman or that he in any way aided in that crime.
I am convinced that in this case the majority is abandoning its standard of review for criminal cases. We should abide by the rule that there must be substantial evidence to support a finding of guilty. We recently defined this standard as:
... evidence that is of sufficient force and character that it will, with reasonable and material certainty and precision, compel a conclusion one way or the other. It must force or induce the mind to pass beyond a suspicion or conjecture. Ford on Evidence, Vol. 4 § 549, page 2760. Substantial evidence has also been defined as ‘evidence furnishing a substantial basis of fact from which the fact in issue can reasonably be inferred; and the test is not satisfied by evidence which merely creates a suspicion or which amounts to no more than a scintilla or which gives equal support to inconsistent inferences.’ [Emphasis added.]
Jones v. State, 269 Ark. 119, 598 S.W. 2d 748 (1980).
In Jones, we referred to the United States Supreme Court’s requirement of proof in criminal cases because our law must meet the United States Supreme Court’s standard. The United States Supreme Court in Jackson v. Virginia, 443 U.S. 307 (1979) defined the constitutional standard for sufficiency of proof as whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
What “substantial” evidence is there that Cassell murdered the policeman? What substantial evidence is there that Cassell solicited, aided, or encouraged in any way the officer’s death? Those are the only questions before us. It was not proved that Cassell had been in Rogers, Arkansas, earlier that day when Renton visited the Campbell-Bell store. It was not even proved that he was in Rogers, Arkansas, when a burglary occurred. It was not proved with any certainty that his car, a Chrysler, was there. It was certainly not proved that he was in the Travel-All registered to Renton which was stopped by Officer Hussey. This Travel-All was stopped two hours after the burglary and twenty miles away. It was not even proved that Cassell’s vehicle was at the scene where the officer stopped a vehicle. There is no proof at all to connect Cassell to the apparent scene of the murder which occurred several miles from where the Travel-All was stopped.
There was evidence that a passenger car, a ’65, ’66 or ’67 model, with a “van or whatever” left the vicinity of the Campbell-Bell store about 1:45 A.M. At the trial a witness said he thought it was a Chrysler vehicle. He based this on the fact he had previously owned a ’65 Plymouth. There was evidence that a ’65 Plymouth is in no way similar to Cassell’s car, a ’71 Chrysler. There was evidence that a white Ford passenger vehicle with a Texas license was stopped in front of the Travel-All on the highway. There was evidence that McLaughlin owned a white Ford with Texas tags. There was no proof at all that Cassell or his vehicle were present when the officer stopped the Travel-All. One witness said “two or three” people were in the Travel-All. Another saw no one except the officer.
On this evidence the majority concludes that what happened was as follows:
At least three of them, Renton and two others, familiarized themselves with the layout of the Campbell-Bell store at Rogers. All four, or at the least two of them, committed that burglary, two vehicles being used. Gillman’s testimony for the defense indicates that two or three were in the van when Hussey stopped it; so the fourth man was presumably in the lead car. The two vehicles must have been traveling together, for they both stopped after Hussey flashed his lights. At least two of the four were present at Hussey’s execution, because a second vehicle had to be used to drive the 14 miles from the burned van back to the Holiday Inn.
It is hardly possible to suppose that these experienced criminals did not suspect that Hussey had radioed a description of the van and perhaps of the other vehicle. They apparently acted upon that probability by murdering Hussey, by burning the Travel-All in a wooded area where its almost immediate discovery came about by chance, and by going out of their way to take the Chrysler to Oklahoma to the one dealer who knew the car and might be likely to trade for it on a Sunday morning.
Who were the two others with Renton in Rogers? We don’t know, but Cassell was not identified as one of them. Did all four or only two of them commit the burglary? We don’t know whether it was one or four. Were two vehicles used or more? Two vehicles were seen leaving the area together. What happened in the two hours between the time the vehicles were seen in Rogers and the Travel-All was stopped? We don’t know. Where is the evidence that there was a “lead” car? There is none. Where is the evidence that the two vehicles were traveling together on the highway? There is none. Who were the “two” present when Hussey was killed several miles from where the vehicle was stopped? There is no evidence that anyone was present except that obviously the officer was killed by someone and that he was found near a vehicle registered to Renton. Where is the evidence that “two” were present? Where is the evidence that a second vehicle had to be used to drive back to the Holiday Inn? There is none. That is all speculation. Where is the evidence that these criminals suspected Hussey had radioed a description of the van and “perhaps the other vehicle”? There is none. Where is the evidence that acting on that “probability” Hussey was murdered? There is none. That is all speculation.
The only hint at all that Cassell may have been present at the burglary was the weak testimony of the one witness who looked out of his window at 1:45 A.M. and saw two vehicles.
No doubt Cassell was in Fayetteville the day before; no doubt he was with Renton in Tulsa, Oklahoma, the next day. The evidence indicates that Renton and Cassell had been partners in burglary and thievery. But when the evidence is examined, as we are required to do, one can only conclude that it would be speculation to say that Cassell killed the officer or aided in any way in the murder. The State cannot place Cassell or his vehicle at the abduction scene or murder scene. It cannot even conclude that four people were present. The State’s proof simply is short of that proof required by our standard and by the United States Supreme Court’s standard.
Ours is a system that presumes innocence, not guilt; it requires the State to prove guilt by competent evidence beyond a reasonable doubt; it requires nothing of a defendant. It is a system that requires us to affirm convictions on the basis of substantial evidence, not speculation.
The State no doubt made its best effort to show guilt. Car tracks which could have been made by a thousand different cars were found outside the Rogers store. The car could have been Cassell’s or anyone else’s. But where is the proof that Cassell was there? He may have been on the highway, but where is the proof that he was there? There is no evidence Cassell participated in this murder. It is understandable why a jury in a case like this could not bring itself to apply the law. Under such circumstances it is hard for laymen to actually believe in the presumption of innocence and that the State must prove guilt beyond a reasonable doubt. It was a terrible crime and the jury had before it a criminal. It is only human to want to lay responsibility for such a crime on one who might have done it. But judges cannot so easily avoid this duty. In such cases we must adhere to our rules regardless of the nature of the crime or the character of the defendant. Otherwise, the right to a fair trial cannot exist; the law will have no integrity.
The majority distinguishes the case of Vaughn v. State, 252 Ark. 505, 479 S.W. 2d 873 (1972) as it well should. Applying the logic of that case, Cassell must be acquitted.
The question before us is not the character of Cassell. It is not the fact that a terrible crime was committed for which someone or several people should pay. We must apply the law; we must apply the test from Jones v. State, supra. Does the evidence compel a conclusion that Cassell participated in the murder? Does it force the mind to pass beyond a suspicion or conjecture? The majority has created its own script of what happened. I cannot find substantial evidence to support such speculation. I respectfully dissent.
Purtle, J., joins in this dissent.