dissenting. Appellant was on trial for aggravated robbery. He entered a plea of not guilty and was tried before a jury. The charge of aggravated robbery necessarily includes the offenses of robbery, criminal attempt to commit aggravated robbery and criminal attempt to commit robbery. Therefore, there were four possible guilty verdicts which should have been considered by the jury.
Ark. Stat. Ann. §§ 41-2102/2103 (Repl. 1977) states:
41-2102:(1) A person commits aggravated robbery if he commits robbery as defined in section 2103 (§ 41-2103) and he:
(a) is armed with a deadly weapon, or represents by word or conduct that he is so armed; or
(b) inflicts or attempts to inflict death or serious physical injury upon another person.
(2) Aggravated robbery is a class A felony.
41-2103:(1) A person commits robbery if with the purpose of committing a theft or resisting apprehension immediately thereafter, he employs or threatens to immediately employ physical force upon another.
(2) Robbery is a class B felony.
Therefore, before a person may be convicted of aggravated robbery, he must employ or threaten to immediately employ physical force upon another person AND be armed with a deadly weapon or represent he is so armed; or, inflict or attempt to inflict death or serious physical inquiry upon another person. Physical force is defined in Ark. Stat. Ann. § 41-2101 (Repl. 1977) as:
“Physical force” means any bodily impact, restraint, or confinement, or the threat thereof.
Did appellant admit or did the evidence show that he employed or threatened to immediately employ physical force upon another person? I do not think so. The appellant stated:
“At no time when I was inside the store did I use any physical force or threaten to use any physical force ... I goofed up again and got to drinking; that’s exactly what happened. I know I’m in trouble, but I didn’t take anything out of the store, and I wouldn’t try to hurt nobody . . . that day I was taking Valium. That was the only drug I was taking, but I was also drinking beer. . . .”
The above testimony certainly makes it a fact question whether the appellant employed or threatened to use force. If he neither used physical force nor threatened to immediately use physical force upon another person, he was not guilty of aggravated robbery. In fact, he would not be guilty of robbery absent such force or threat of force. Certainly, his testimony is not undisputed even though it may be uncontradicted. There is no independent testimony contradicting his statements contained in the record before us. The jury may not have believed a single word of appellant’s testimony, but it was their right and duty to give this testimony as little or as much weight as they choose. The court completely took the facts away from the jury; and, in effect, directed a verdict of guilty of aggravated robbery when the verdict forms were being read to the jury. This event occurred after the verdict on aggravated robbery was given, and the court stated:
“All right, ladies and gentlemen, it’s time for you to retire to the jury room and consider your verdict. . . The first one says:
We, the Jury, find the defendant, Robert Smith, guilty of aggravated robbery as charged in the information.
If that is your verdict, then your foreman will sign that in the place here for the foreman. The rest of these are lesser included offenses ... If you find
We, the Jury, find Robert Smith not guilty of aggravated robbery,
You can disregard that. Mr. Lee has admitted that he is guilty of something. So, you can disregard that not guilty verdict.”
The court then proceeded to instruct the jury on a finding of guilty or not guilty as to robbery, criminal attempt for aggravated robbery, and criminal attempt for robbery. In my opinion, appellant’s argument is broad enough to include the argument of insufficiency of the evidence to support a finding of guilty of aggravated robbery.
At the conclusion of the court’s verdict instruction appellant’s attorney stated:
“Your Honor, if it please the Court, I’m not sure that I understand the comment, I don’t know about the jurors disregarding what.”
These words may not be in the best form for an objection, but they do at least question the correctness of the court’s instructions and comments. This inquiry may have meant the attorney could not believe what he had heard. At the very least, the court should have considered the remarks he had just made. For reasons stated later, I do not believe an objection was necessary. I feel this error was of such magnitude that no objection was necessary. I feel the trial court was under a duty to correct his mistake immediately, and the error was so prejudicial that justice could not be served by a continuation of the trial after such a mistake. This amounts to what I call “plain error.”
Ark. Stat. Ann. § 43-2725.2 (Rep. 1977) states:
A conviction shall be reversed and a new trial ordered where the Supreme Court finds that the conviction is contrary to the Constitution, the laws of Arkansas or for any reason determines that the appellant did not have a fair trial. Where appropriate, the Supreme Court shall reverse the conviction and order the appellant discharged. In all other cases, the conviction must be affirmed, but the sentence of the appellant may be reduced if it is deemed excessive.
Thus, it is clearly stated in § 43-2725.2 that a conviction shall be reversed and a new trial ordered when the Supreme Court finds that the conviction is contrary to the Constitution, the laws of the State of Arkansas, or for any other reason determines that the appellant did not have a fair trial. We do not have to base this decision on the above statute because there is higher authority. The Constitution of Arkansas, Art. 7 § 23, states:
Judges shall not charge the juries with regard to matters of fact. . . .
I do not feel that the above constitutional provision and laws of the State of Arkansas are merely pieces of paper. I cannot understand how the majority can agree that the trial judge commented on the evidence, which violates the constitution, and directed a verdict of guilty to aggravated robbery, which is contrary to all precedent, and still uphold the conviction.
I am, at least at this time, unwilling to seat myself in the jury box, as I believe the majority has done, and pass upon the guilt or innocence of an accused. There is no doubt in my mind that had I been a juror in this case, I would have voted to convict the appellant of one of the offenses. Perhaps, I would have voted for aggravated robbery; but, it would be necessary for me to have heard some evidence of the use of force or the threat of physical force. Nothing in the record or in the majority opinion supplies this missing ingredient.
There is at least a jury question on another part of the aggravated robbery charge. That jury question is whether or not the appellant had the necessary purpose to commit the offense. Ark. Stat. Ann. § 41-203(1) (Repl. 1977} defines “purposely” as:
A person acts purposely with respect to his conduct or a result thereof when it is his conscious object to engage in conduct of that nature or to cause such a result.
I think there is at least a fact question whether the appellant possessed the requisite purpose of mind; after all, he testified he was on Valium and beer.
We have previously held a trial court may not direct a verdict of guilty when the penalty for the offense is possible imprisonment. Collins v. State, 183 Ark. 425, 36 S.W. 2d 75 (1931); Taylor v. City of Pine Bluff, 226 Ark. 309, 289 S.W. 2d 679 (1956). Also, see Compton v. United States, 377 F.2d 408 (8th Cir. 1967).
Failure to object to an improper instruction has been before this Court several times. Such failure to spontaneously object to an erroneous instruction was discussed by this Court in Wilson [& Dancy] v. State, 261 Ark. 820, 552 S.W. 2d 223 (1977) wherein we stated:
We will take this action only when the error is so great that the trial court was under a duty to correct it immediately and no objection or admonition could have undone the damage or erased the effect of the error from the minds of the jurors.
Not only did the court fail to take any action to undo the error, but he also sent this error with the jury into the jury room. This instruction error was constantly before the jurors until they had complied with the court’s indirect instructions to convict the appellant of aggravated robbery. We have held it to be plain error for the court to comment to the jury during their deliberations. Bell v. Smith, 223 Ark. 304, 265 S.W.2d 709 (1954). In Bell the comment of the court concerned the eligibility of a convict obtaining a parole. In my opinion, such comment did properly call for a reversal of the case. However, that comment was small compared to the one in the present case. I can think of no instance where greater harm could be done than the combination of the remark of the court and a withdrawal of the not guilty verdict form. If no objection were required in Bell, certainly none is required in the present case.
It is fundamental to our system of government that an accused is presumed to be innocent until he is found guilty. When a court instructs the jury that the accused is guilty, this principle has been violated.
I stated earlier that there is no evidence in this record to support a conviction for aggravated robbery, let alone warrant a directed verdict. I fear the majority is making a grievous mistake, and a mistake which all of us will later regret. Therefore, I would reverse and remand for a new trial.