The opinion
Jim Johnson, Associate Justice, concurring.
I concur in the result reached by the majority but for entirely different reasons than those advanced in the majority opinion as to the appellants’ contentions on (1) Petition for Change of Venue, and (2) The alleged reception of statements as to other offenses charged against the appellant Perry. I am in full accord with the majority as to its reasoning on appellants ’ contentions as to the refusal of the trial court to quash the jury panel.
My basic difference with the majority is that I feel that the case should be affirmed, not because no error was committed on denial of the Petition for Change of Venue, but because the error was harmless in the cases of these two appellants. The same thing may be said with reference to the statements made by the Prosecuting Attorney and one witness with reference to the fact that there were other charges pending against the appellant Perry. On this latter point, I cannot agree with the approach of the majority because, as I view it, the point raised by appellant is not that any improper evidence was received but rather that even though the trial court cautioned the jury to disregard such statements, it was impossible to erase the prejudice which their utterance in the presence of the jury had created.
As to appellants’ Petition for Change of Venue, I firmly believe that the trial court erred in denying the petition. The majority cites Leggett v. State, 227 Ark. 393 , 299 S. W. 2d 59 , to sustain the trial court’s action. It should be remembered that in the Leggett case the trial court had heard the testimony of “hundreds of veniremen” and jurors had actually been selected at the time of the presentation of the petition. Further, the court found that in the Leggett case there was no indication: “... that the news reports were biased or represented a studied effort to inflame the public. . .” [emphasis added]. In the case now before us, no jurors had been examined before the Court passed upon the Petition for Change of Yenue. Without detailing the testimony of the witnesses called by the State or the appellants on this petition, I am of the opinion that when all of such testimony is considered, the overwhelming preponderance of the evidence showed that a fair and impartial jury could not be selected in Pulaski County to try these cases. The second point of distinction between the cases now before us and the Leggett case is that in the present cases the record clearly shows that the news articles, editorials and cartoons were “biased” and did represent ‘ ‘ a studied effort to inflame the public. ’ ’
Space will not permit a detailed recitation of the text, prominence, size of headlines, number of stories and slanted emphasis of the news articles. It is sufficient to say that no fair minded person could read the same without coming to the conclusion that the news editors were magnifying the crimes and deliberately attempting to create hostility toward the defendants. Surely, no reasonable person would say that the editorials appearing in the Arkansas Gazette, wherein it was stated that the editors trusted that the Federal Bureau of Investigation had investigated whether or not the defendants were communists, were not a “studied effort to inflame the public.” This example could be multiplied but this is a fair sample of the editorial treatment of the defendants. It is possible that fair minded men might differ as to the deliberate intent of the editors in news treatment of the matter if this were all that appeared in the record, but, when the editorials are considered it is clear, beyond the shadow of a doubt, that these editors not only attempted to prejudice the public against the defendants before trial but also that these efforts were undoubtedly successful. It is shameful that any responsible newspaper editor would attempt to pervert justice by preventing a defendant from being tried by fair and impartial jurors. It matters not how guilty the defendants may have been and undoubtedly were; this did not give license to deprive them of their constitutional right to trial by an unbiased jury. If we ever come to the point that we reason that “the end justifies the means” we will have destroyed our government of law and will have substituted a ‘ ‘ government by men ’ ’ which will surely lead to the doom and destruction of our great nation.
Having stated my reasons for disagreeing with the treatment of the issue by the majority, I advert to my reason for concurring in the result, i.e., that the error was harmless. In Sullins v. State, 79 Ark. 127 , 95 S. W. 159 , in discussing an error of the trial court in refusing to sustain a challenge for cause against one of the trial jurors, we said:
“For instance, if the undisputed evidence, not only on the part of the state, but also the testimony of the defendant himself, clearly shows the facts which make out the crime, then we think this Court would not be justified in sitting the conviction aside for such an error, for under such a state of facts the verdict would have been the same had the case been tried by any other unbiased and impartial jury. Now that is the case here, so far as the guilt of the defendant is concerned; for his own testimony shows that the killing of Eadcliff was neither necessary nor excusable on his part.” [Emphasis added.]
In Anderson v. State, 197 Ark. 600 , 124 S. W. 2d 216 , we upheld a first degree murder conviction where confessions of conspirators had been improperly admitted against him saying:
“They could not have been prejudicial in this case because the appellant, Joe Anderson, testified and admitted the conspiracy, the robbery and the hilling of Cooley. It is true he said that Cooley was shot when he was a few feet away and that he had nothing to do with the shooting, but it was done in furtherance of the conspiracy and all the conspirators were guilty the same as the one that actually did the shooting.” [Emphasis added.]
In Malone v. State, 202 Ark. 796 , 152 S. W. 2d 1019 , in discussing an alleged improper argument of the prosecuting attorney, we said:
‘ ‘ Moreover, no prejudice could have resulted by that statement of the prosecuting attorney, and even where error is shown, if it is manifest from the record that no prejudice resulted, this Court will not reverse[Emphasis added.]
Turning now to the record in the cases here, I find that the appellant Coggins testified in open court and admitted his guilt, seeking only to minimize his turpitude by statements that he thought the bomb would only cause slight damage and did not realize the havoc which it would wreak.
The appellant Perry testified in Chambers that the second of two confessions he made to the Prosecuting Attorney was true and he did not make the confession because of coercion, threats, duress or promises of reward. This confession was read in evidence against him and constitutes an unqualified admission of guilt as an accessory before the fact. This justified and demanded his conviction as a principal and based on the record before us, no fair minded jury could have come to any other conclusion, the distinction between accessory before the fact and principal having been abolished. Ark. Stats., § 41-118.
By virtue of both appellants own testimony, they would have been convicted by any fair minded jury and the convictions should stand because the error in denying the Petition for Change of Yenue was harmless.
The contention of appellant Perry as to error in refusing to grant a mistrial because of statements of the prosecutor and a witness to the effect that other charges were pending against him is without merit because the error, if any, was harmless in view of his testimony — which, in effect, confessed guilt.
On this last point, the opinion of the majority goes to a point which I don’t understand from the briefs to be raised by appellant and which, as I see it, could not properly be raised since the record shows that the Court did not admit evidence of similar offenses on the part of the defendant but instead charged the jury to disregard the improper statements. The appellant only contends that the admonitions of the Court were insufficient to remove the alleged prejudice created by these utterances. This contention is untenable for two reasons: (1) The appellant’s admittedly true confession related his participation in and guilt of another crime, as well as guilt of the crime for which he was being tried. In this state of the record, it cannot be said that any prejudice resulted to the appellant because of the excluded statements of the Prosecuting Attorney and a witness. No objection was made to the reading of appellant’s confession on the ground that it showed his guilt in another crime, and, indeed, none could have been properly made. (2) The admonition was ample to remove any possible prejudice. Smith v. State, 222 Ark. 650 , 262 S. W. 2d 272 .