The opinion
John I. Purtle, Justice, dissenting. I disagree with the majority because, in my opinion, they have misconstrued the law and misinterpreted our prior decisions. For a comparison of the capital murder statute and the first degree murder statute you need only turn back to the majority opinion because they are set out correctly. As stated by the statute and by the majority opinion in this case, both first degree murder and capital murder require premeditation and deliberation. The only difference in the two statutes is that if a person causes the death of two or more persons, he is guilty of capital felony murder. On the other hand, if he takes only one life, he is guilty of first degree murder. The murders in question here were not felony murders. Therefore, when the appellant killed the first person he had completed all elements of the crime of first degree murder. In fact, had the second person not been killed he could have only been tried for first degree murder. Therefore, at least as to the first person killed he was absolutely entitled to a first degree murder instruction. It is my contention that it is impossible to commit capital felony murder by the murder of two or more persons without first committing two or more first degree murders. The appellant may well have been guilty of two first degree murders in this case.
Up until this time we have pretty well held in keeping with the views I state herein. I know of no reason why the court should depart from its established line of reasoning and the cases already in existence. For example, in Robinson v. State, 269 Ark. 90 , 598 S.W. 2d 421 (1980), we dealt with a factual situation almost identical to the present one. In Robinson, the appellant shot and killed two people and injured a third in the same episode. Robinson’s defense was identical to that of the appellant in the present case. The majority misinterpret the plain language of Robinson and misread the opinion when they say we sent it back only because of the failure to give a second degree murder instruction. Our exact words in Robinson were:
. . . On retrial the court should also include an instruction on first degree murder if the evidence again supports an instruction on second degree murder.....
It could not be more clearly expressed that we intended for a first degree murder instruction to be given in Robinson.
The majority correctly interpret Brewer v. State, 271 Ark. 254 , 608 S.W. 2d 363 (1980). Brewer, as in Robinson v. State, supra, and the present case, claimed mental defect to a felony capital murder charge. We have many times held that where there is the slightest evidence to warrant such an instruction it amounted to error to fail to give the instruction on the lesser included offense. Robinson v. State, supra; Brewer v. State, supra; Westbrook v. State, 265 Ark. 736 , 580 S.W. 2d 702 (1979). We have been so rigid in our enforcement of an accused’s right to a lesser included instruction that we have even approved the giving it over his objection. Kurck v. State, 235 Ark. 688 , 362 S.W. 2d 713 (1962).
Holt, J., joins in this dissent.