# Swindler v. State > Supreme Court of Arkansas · July 17, 1978 · 264 Ark. 107 URL: https://www.frixlaw.com/law-library/cases/9775548 ## Case - **Full name:** John Edward SWINDLER v. STATE of Arkansas - **Court:** Supreme Court of Arkansas - **Decided:** July 17, 1978 - **Citations:** 264 Ark. 107; 569 S.W.2d 120; 1978 Ark. LEXIS 2254 - **Precedential status:** Published - **Opinion:** Concurring in part by Fogleman - **Judges:** Byrd, Harris, Howard, Fogleman - **Cited by:** 31 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9775548 ## Opinion text John A. Fogleman, Justice, concurring in part, dissenting in part. I agree that the conviction in this case must be reversed. I do not agree that the trial court abused its discretion in denying a change of venue in this case. The evidence presented left a great deal to surmise as to the state of mind of inhabitants of the entire county. Many of the witnesses who testified in support of the motion actually did little more than express their own opinions and reactions with little basis for knowing the attitudes of more than a few people. An opinion that it would be impossible to select 12 people from 1000 potential jurors, the identities of most of whom should have been unknown, is somewhat conjectural and the examination of 62 of them may or may not be indicative of the attitudes of the remainder. The witnesses who had discussed the case with a limited number of people (e.g., one with 50 to 75; another only with friends and social acquaintances; another with only family members; another with a half dozen or more) did not say what parts of the county these people were from or how representative they were of the entire population. At least one of the witnesses testifying in behalf of the defendant on the motion stated that the frequency of conversations about the case had “definitely reduced” by the time he testified. I agree, however, that there were abuses of discretion in acting upon appellant’s challenges for cause and that jurors who should have been excused for cause actually served on the jury. Others were peremptorily excused by appellant and his peremptory challenges were exhausted. I do not agree, however, that one, who worked for the same company as the father of the officer killed and who had some contact with the father at work and had seen him one time since the son’s death, was necessarily biased, even though he naturally told the father that he was sorry to hear of his son’s death on the one occasion he had seen him. Neither do I agree that a female employee of the United States Marshal’s office should be excused for cause in a case involving the alleged murder of a city patrolman on that ground alone. I do think that this prospective juror’s answers on voir dire required that she be excused for cause. I do not take the majority opinion to require an automatic change of venue upon remand after the passage of 16 months since the trial. The situation may well be different since the pervasive effect of the publicity has diminished. It seems to me that the evidence showed that adjoining counties were permeated by the publicity to about the same extent as Sebastian County. I do not agree that “probation” and “parole” are synonymous. A strict construction of the capital felony murder statute should prevent our extending the statute beyond its plain words, but in my opinion, one on parole may be and usually is subject to imprisonment. My opinion is based upon the premise I will now undertake to outline. Probation is the method of treating one found guilty of an offense, whereby he is not imprisoned, but released under supervision and upon specified conditions. Webster’s New International Dictionary, 2d Ed. Parole is the conditional and revocable release of a prisoner. Webster’s, 2d Ed. The former precedes and is in lieu of imprisonment. The latter follows imprisonment. It is a different manner of serving a sentence than by actual confinement. 59 Am. Jur. 2d 9, Pardon & Parole, § 10. Under Arkansas law, he remains in legal custody of the institution from which paroled. Ark. Stat. Ann. § 43-2808 (Repl. 1977). The parole board may revoke the parole and order the prisoner returned to actual custody. Ark. Stat. Ann. § 43-2810 (Repl. 1977). It is generally held that the prisoner is at all times “subject to imprisonment” as a result of being found guilty of the felony for which he was originally imprisoned. Revocation of parole simply returns the prisoner into actual confinement to serve the original sentence and is punishment for the crime for which that sentence was imposed. Unless parole under the laws of the jurisdiction in which the parolee was sentenced and paroled differs materially from the Arkansas law, the prisoner is “subject to imprisonment” by termination of the parole until the expiration of the sentence imposed. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9775548. Public record. Not legal advice.