John I. Purtlb, Justice.
Appellant was tried and convicted of first degree battery and aggravated assault with a firearm. The jury asssessed his punishment at 20 years on first degree battery and 10 years on aggravated assault with a firearm.
On appeal appellant urges four grounds for reversal: (1) the court erred in excluding veniremen who expressed reservations about assessing the combined maximum possible sentence to the offense charged; (2) the evidence was insufficient to support the verdict; (3) the court erred in failing to read AMCI 203 to the jury immediately following reference to a former felony conviction; and, (4) AMCI 301 as given was improper.
We find the evidence was sufficient to support the conviction. We also find appellant failed to timely request AMCI 203 and a correct version of AMCI 301. We must reverse, however, on the first argument.
During the trial, several witnesses testified that they saw the appellant draw the weapon and fire several shots. There was also undisputed proof that Henry Stone was struck by one of the bullets and suffered severe and permanently disabling injuries. Other witnesses testified that there was a truck driver named Shirley Smith in the restaurant and that one of the bullets penetrated her hat. Although Shirley Smith did not appear at the trial, several witnesses testified they saw a hole in her hat before the shooting and that there was no hole in it at the time. Thus, there clearly was sufficient evidence to support the conviction.
During an in-chambers hearing, the appellant’s attorney obtained the agreement of the court to read AMCI 203 immediately following any questioning by the state about appellant’s prior felony conviction. The state did in fact ask about the prior conviction, but the court failed to immediately read AMCI 203. However, the record does not show the appellant requested the instruction be read at that time. The instruction was eventually given along with all the other instructions at the close of the case.
AMCI 301 was given in a modified form as Instruction Nos. 11 and 19 to each of the charges. The pertinent portion of the instruction reads:
If you have a reasonable doubt as to which offense the Defendant may be guilty of, you may find him guilty only of the lesser offense. If you have a reasonable doubt as to the Defendant’s guilt of all offenses, you may find him not guilty. (Emphasis ours.)
The instruction should have been given in the following form:
If you have a reasonable doubt as to which offense the Defendant may be guilty of, you may find him guilty only of the lesser offense. If you have a reasonable doubt as to the Defendant’s guilt of all offenses, you must find him not guilty. (Emphasis ours.)
There was no objection made to the instruction as given. It is obvious the word “may” was substituted for the word “must” in the last sentence of AMCI 301. On retrial the instruction should be given as set forth in AMCI 301 without modification.
We will now consider the argument that jurors were subjected to improper voir dire and those who expressed a reservation about the maximum combined punishment were improperly excused for cause. In an effort to assist in a better understanding of the opinion, we believe it will be helpful to set out some portions of the voir dire examination of the jury panel verbatim. During the prosecutor’s examination he apparently sought to select a panel which would agree, in advance of the trial, to assess the maximum punishment if the appellant were found guilty. One remark made by the prosecuting attorney, during voir dire, regarding the assessment of punishment was:
* # #
MR. LONG: Ladies and gentlemen, as the Court has told you, the charges here, one is battery in the first degree, and two, aggravated assault. Now, battery in the first degree is punishable — You will be instructed, I think, by not less than three nor more than twenty years in Arkansas Department of Corrections. Aggravated assault, you will be instructed is punishable by up to five years in the Arkansas Department of Corrections. In addition it is alleged in the information that the aggravated assault was committed with a firearm, and you will also be instructed that, I think, if a firearm is used in the commission of aggravated assault, that an additional fifteen years can be imposed. Now, what this all amounts to is that if the State proves the allegations of the information in its entirety, the maximum punishment that can be imposed will be twenty years in the Arkansas Department of Corrections for battery and fifteen plus five will be another twenty years in the Arkansas Department of Corrections for aggravated assault, ladies and gentlemen, that is serious and it is a very severe punishment, but I want to tell you right here and right now up front that that is what the State’s going to be asking you to do, and that is to put Pete Haynes in the Arkansas Department of Corrections for forty years.
While prospective jurors Collins was being questioned, some of the questions and answers were as follows:
MR. LONG: As you sit there now, before you heard the facts, you feel regardless, that 40 years is just too much?
MRS. COLLINS: Well, yes, I do feel that way.
* * *
JUROR: Well, if he’s guilty of some of those things, will he get forty years, or lesser years, or could he get lesser years? Forty years is a long time out of a man’s life. Did he kill someone? I don’t know anything about the case.
THE COURT: Ask her again, Mr. Long.
BY MR. LONG:
Q. Mrs. Collins, that is what I am asking. No, he did not kill someone. Battery in the first degree is not killing. What I am asking and telling you is that I think the judge will instruct you that this man can receive up to forty years, and I understand that some of you — You may just feel like in any circumstances, regardless, that’s too long. I am asking: As you sit there right now, are you thinking, regardless of what the State proves,. that is just too long. I wouldn’t impose that much. Maybe I could impose twenty but I just couldn’t impose forty regardless of the facts. Is that the way you feel about it?
A. Well, I would have to hear the other side first.
Q. Well, that’s not the way I’m asking. What I’m asking, Mrs. Collins —
A. I would try to be fair.
Q, Yes, I understand that. I know that, but here’s the way I’m asking it to you. I’m asking: As you sit there right now, do you feel that for a battery and assault, that to put a man in the penitentiary for forty years is just too long regardless?
A. Well, yes, I do feel that way.
* # #
Mrs. Collins was excused for cause.
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John I. Purtlb, Justice.
Appellant was tried and convicted of first degree battery and aggravated assault with a firearm. The jury asssessed his punishment at 20 years on first degree battery and 10 years on aggravated assault with a firearm.
On appeal appellant urges four grounds for reversal: (1) the court erred in excluding veniremen who expressed reservations about assessing the combined maximum possible sentence to the offense charged; (2) the evidence was insufficient to support the verdict; (3) the court erred in failing to read AMCI 203 to the jury immediately following reference to a former felony conviction; and, (4) AMCI 301 as given was improper.
We find the evidence was sufficient to support the conviction. We also find appellant failed to timely request AMCI 203 and a correct version of AMCI 301. We must reverse, however, on the first argument.
During the trial, several witnesses testified that they saw the appellant draw the weapon and fire several shots. There was also undisputed proof that Henry Stone was struck by one of the bullets and suffered severe and permanently disabling injuries. Other witnesses testified that there was a truck driver named Shirley Smith in the restaurant and that one of the bullets penetrated her hat. Although Shirley Smith did not appear at the trial, several witnesses testified they saw a hole in her hat before the shooting and that there was no hole in it at the time. Thus, there clearly was sufficient evidence to support the conviction.
During an in-chambers hearing, the appellant’s attorney obtained the agreement of the court to read AMCI 203 immediately following any questioning by the state about appellant’s prior felony conviction. The state did in fact ask about the prior conviction, but the court failed to immediately read AMCI 203. However, the record does not show the appellant requested the instruction be read at that time. The instruction was eventually given along with all the other instructions at the close of the case.
AMCI 301 was given in a modified form as Instruction Nos. 11 and 19 to each of the charges. The pertinent portion of the instruction reads:
If you have a reasonable doubt as to which offense the Defendant may be guilty of, you may find him guilty only of the lesser offense. If you have a reasonable doubt as to the Defendant’s guilt of all offenses, you may find him not guilty. (Emphasis ours.)
The instruction should have been given in the following form:
If you have a reasonable doubt as to which offense the Defendant may be guilty of, you may find him guilty only of the lesser offense. If you have a reasonable doubt as to the Defendant’s guilt of all offenses, you must find him not guilty. (Emphasis ours.)
There was no objection made to the instruction as given. It is obvious the word “may” was substituted for the word “must” in the last sentence of AMCI 301. On retrial the instruction should be given as set forth in AMCI 301 without modification.
We will now consider the argument that jurors were subjected to improper voir dire and those who expressed a reservation about the maximum combined punishment were improperly excused for cause. In an effort to assist in a better understanding of the opinion, we believe it will be helpful to set out some portions of the voir dire examination of the jury panel verbatim. During the prosecutor’s examination he apparently sought to select a panel which would agree, in advance of the trial, to assess the maximum punishment if the appellant were found guilty. One remark made by the prosecuting attorney, during voir dire, regarding the assessment of punishment was:
* # #
MR. LONG: Ladies and gentlemen, as the Court has told you, the charges here, one is battery in the first degree, and two, aggravated assault. Now, battery in the first degree is punishable — You will be instructed, I think, by not less than three nor more than twenty years in Arkansas Department of Corrections. Aggravated assault, you will be instructed is punishable by up to five years in the Arkansas Department of Corrections. In addition it is alleged in the information that the aggravated assault was committed with a firearm, and you will also be instructed that, I think, if a firearm is used in the commission of aggravated assault, that an additional fifteen years can be imposed. Now, what this all amounts to is that if the State proves the allegations of the information in its entirety, the maximum punishment that can be imposed will be twenty years in the Arkansas Department of Corrections for battery and fifteen plus five will be another twenty years in the Arkansas Department of Corrections for aggravated assault, ladies and gentlemen, that is serious and it is a very severe punishment, but I want to tell you right here and right now up front that that is what the State’s going to be asking you to do, and that is to put Pete Haynes in the Arkansas Department of Corrections for forty years.
While prospective jurors Collins was being questioned, some of the questions and answers were as follows:
MR. LONG: As you sit there now, before you heard the facts, you feel regardless, that 40 years is just too much?
MRS. COLLINS: Well, yes, I do feel that way.
* * *
JUROR: Well, if he’s guilty of some of those things, will he get forty years, or lesser years, or could he get lesser years? Forty years is a long time out of a man’s life. Did he kill someone? I don’t know anything about the case.
THE COURT: Ask her again, Mr. Long.
BY MR. LONG:
Q. Mrs. Collins, that is what I am asking. No, he did not kill someone. Battery in the first degree is not killing. What I am asking and telling you is that I think the judge will instruct you that this man can receive up to forty years, and I understand that some of you — You may just feel like in any circumstances, regardless, that’s too long. I am asking: As you sit there right now, are you thinking, regardless of what the State proves,. that is just too long. I wouldn’t impose that much. Maybe I could impose twenty but I just couldn’t impose forty regardless of the facts. Is that the way you feel about it?
A. Well, I would have to hear the other side first.
Q. Well, that’s not the way I’m asking. What I’m asking, Mrs. Collins —
A. I would try to be fair.
Q, Yes, I understand that. I know that, but here’s the way I’m asking it to you. I’m asking: As you sit there right now, do you feel that for a battery and assault, that to put a man in the penitentiary for forty years is just too long regardless?
A. Well, yes, I do feel that way.
* # #
Mrs. Collins was excused for cause.
The prosecuting attorney repeatedly asked prospective Jurors if they could fix punishment at 40 years. One such question was:
***Now with that in mind, assuming that we are able to prove his guilt beyond a reasonable doubt on both offenses, assuming we proved his guilt, we are satisfied of his guilt, would you be able to consider as the only possible punishment, would you be able to impose a sentence up to forty years in the Department of Corrections if the facts warranted it?
Not only was it error to excuse Mrs. Collins for cause, but we disapprove the kind of questions that the prosecutor asked the prospective jurors.
The purpose of selecting a jury is to obtain a panel which will be fair and impartial to the accused as well as the state. We recognize the severe and aggravating circumstances of this case, but there are limits beyond which the state may not proceed without resulting in prejudice to the accused.
The jury in this case was composed of 12 people who may have felt obligated in advance of hearing the evidence, to consider imposing the maximum punishment if the accused were found guilty. They were not chosen upon their promise to consider the full range of penalties provided by law, as the court had correctly stated at one point earlier in the proceedings.
Although we do not agree with appellant that the Witherspoon doctrine is controlling here, we do adhere to the principle in Witherspoon v. Illinois, 391 U.S. 510, 522 n. 21 (1968), that both the state and the accused are entitled to an impartial and unbiased jury. In Witherspoon the question relates only to the penalty of death. It is proper in a capital case to determine if a prospective juror is irrevocably opposed to the death penalty regardless of the facts. If one juror so opposed to capital punishment were selected, it would effectively prohibit the death penalty in the case. A trial under such circumstances would be a useless and expensive exercise in futility. Countless people are opposed to capital punishment for any crime regardless of its nature, and it is a deeply emotional issue and in many cases is based upon religious beliefs and interpretations of the Bible. The question in capital cases is whether the juror would vote for the death penalty under any circumstances, not whether he considers the penalty excessive for the crime charged in the case before him.
There is usually no similar emotional feeling in regard to imprisonment for a certain number of years. No conscientious prospective juror should be required to say in advance of the trial whether he would consider the maximum penalty to be excessive. He should first be allowed to hear the testimony, observe the exhibits, hear the instructions by the court, and listen to the arguments of counsel. It is the duty of the jury to select the range of punishment it finds appropriate after hearing and observing the trial. Unless an impartial and unbiased jury is allowed to set the time a convicted felon shall serve, there is no need to require them to consider any question other than the guilt or innocence of the accused. The whole purpose of providing a variance in the time to be served by one convicted of a particular crime is to allow the jury to set the punishment at the number of years they feel is justified after hearing all the evidence in the case.
Mrs. Collins had been told the appellant had not killed anyone. Otherwise, she knew nothing about the case other than the charges against him which had been read to the panel by the court. She gave admirably impartial answers when she stated: “I would have to hear the other side first,” and “I would try to be fair.” This is precisely the type of answers a fair and impartial juror should be expected to give. However, her attitude was not acceptable to the state. Obviously, the state was attempting to obtain a jury which would agree, in advance of the trial, to inflict the maximum punishment if they found the accused guilty. A juror accepted for service after this type of questioning might understandably feel he was morally obligated to vote for the maximum sentence. Part of one frequent question put to the jury was, “If the facts warranted it,” would the juror vote to jmpose the maximum sentence. This was a wholly meaningless statement to a juror who had not yet heard the facts. Although many of the questions by the prosecutor were proper, there were many others who were not. The whole line of questioning reveals the prosecutor intended to select a jury which would vote for the maximum sentnece upon a finding of guilt. Because of the basic unfairness of the type of questions presented to prospective jurors by the state, we hold that the questions clearly constituted prejudicial error.
There is another practical reason for prohibiting the tactics used in this case. If we approve the questions that were asked, and the ensuing challenge for cause, prosecutors will consider it their duty to qualify the jurors for the maximum punishment whenever the state intends to suggest it. The result would be endless bickering, as occurred here, about the jurors’ answers to what are really unanswerable questions before the trial had been completed. Hundreds of prospective jurors will no doubt be needed before 12 are found who will be willing to promise, in advance of hearing the evidence, to impose the most severe sentence possible under the law. Not only would the trial process be greatly burdened and expanded in time and expense, but appeals would become commonplace. To allow such tactics might well be the straw that broke the camel’s back.
Both the state and the defendant are entitled to a fair and impartial jury, and the most that may be required of a juror, before the trial has begun, is that he be willing to consider all the penalties provided by law and that he not be irrevocably committed to vote against the possible penalties, regardless of the facts and circumstances that might ensue in the course of the trial.
Reversed and remanded.
Fogleman, C.J., and Hickman, J., dissent.