Sam Robinson, Associate Justice.
The appellants were charged by felony information with the crime of grand larceny. Later, the information was amended by making the additional charge that appellant Jesse Miller had previously been convicted of the crime of burglary, and the additional charge that Leland Miller had previously been convicted of the crime of arson. A prior conviction increases the minimum penalty for the crime for which the defendant is then on trial. Ark. Stat. Ann. § 43-2328 (Repl. 1964).
At the beginning of the trial, defendants entered pleas of guilty, out of hearing of the jury, to that part of the information charging previous convictions, and pleaded not guilty to the principal offense charged. Counsel for defendants then filed a motion asking the trial court to instruct the prosecuting attorney not to read to the jury that part of the information charging previous convictions, and not to mention the previous offenses in the presence of the jury. Defendants’ counsel stated that the defendants would not testify in the case. The motion was overruled; the prosecuting attorney called the jury’s attention to that part of the information charging previous convictions, and to the fact that appellants had pleaded guilty to that part of the information. The pleas of guilty to the charge of previous convictions were also mentioned by the court in the instructions to the jury.
The specific question before the court at this time is whether the action of the trial court in permitting the previous convictions to be called to the attention of the jury deprived defendants of a fair trial within the meaning of the TJ. S. Constitution, Amendments 5, 6, and 14.
The court said in Lane v. Warden, Maryland Penitentiary, 320 F. 2d 179 (1963): “It is a rule not now
subject to challenge that constitutional due process of law requires a fair hearing in a fair tribunal. Although the Constitution does not demand the use of jury trials in a state’s criminal procedure, where a jury trial is provided it must be a fair trial.” Citing, Irvin v. Dowd, 366 U. S. 717, Fay v. New York, 332 U. S. 261, Palko v. Connecticut, 302 U. S. 319, Hughes v. Heinze, 268 F. 2d 864, Baker v. Hudspeth, 129 F. 2d 799. The court said in Baker v. Hudspeth, supra;
“The denial of a fair and impartial trial, as guaranteed by the 6th Amendment to the Constitution, is also a denial of due process, demanded by the 5th and 14th Amendments, and the failure to strictly observe these constitutional safeguards renders a trial and conviction for a criminal offense illegal and void and redress therefor is within the ambit of habeas corpus.” Citing many IT. S. Supreme Court cases.
The court said in Michelson v. U. S., 335 U. S. 469: “Courts that follow the common-law tradition almost unanimously have come to disallow resort by the prosecution to any kind of evidence of a defendant’s evil • character to establish a probability of his guilt. Not that the law invests the defendant with a presumption of good character, Greer v. United States, 245 U. S. 559, but it simply closes the whole matter of character, disposition and reputation on the prosecution’s case-in-chief. The state may not show defendant’s prior trouble with the law, specific criminal acts, or ill name among his neighbors, even though such facts might logically be persuasive that he is by propensity a probable perpetrator of the crime. The inquiry is not rejected because character is irrelevant; on the contrary, it is said to weigh too much with the jury and to so overpersuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge. The overriding policy of excluding such evidence, despite its admitted probative value, is the practical experience that its disallowance tends to prevent confusion of issues, unfair suprise and undue prejudice.”
Many times we have held that evidence of other crimes committed by a defendant is not admissible to prove his guilt of the crime for which he is then on trial. Williams v. State, 183 Ark. 870, 39 S. W. 2d 295; Ware v. State, 91 Ark. 555, 121 S. W. 927; Alford v. State, 223 Ark. 330, 266 S. W. 2d 804.
In the case at bar, previous convictions of crimes were charged in the information. The burden was on the state to prove previous convictions as charged. It can be argued that it was necessary for the jury to know about the previous convictions in order to fix the punishment as provided by statute where previous convictions are alleged in the indictment. It will be recalled, however, that the defendants had pleaded guilty to that part of the information charging previous convictions.
We have heretofore dealt with the question to some extent. In Rowe v. State, 224 Ark. 671, 275 S. W. 2d 887 (1955), it is pointed out that the information charged a previous conviction, and evidence was, therefore, admissible to prove the charge. The case is distinguishable from the case at bar because in the Bowe case there was no plea of guilty to the previous conviction; in the case at bar there was such a plea.
In Clubb v. State, 230 Ark. 688, 326 S. W. 2d 816, (1959), the defendant filed a motion to strike from the information the charge of a previous conviction. The motion was overruled. In affirming the trial court it was held there was no error in giving the state an opportunity to prove the charges.
Higgins v. State, 235 Ark. 153, 357 S. W. 2d 499 (1962) was reversed because the state was allowed to introduce inadmissible evidence in an effort to prove a previous conviction charged in the information. In that case we indicated disapproval of a procedure whereby the question of whether a defendant had been convicted previously would be determined by a jury at the same time the defendant’s guilt or innocence of the current offense charged was under consideration. But we also said we thought a change in procedure should be adopted by the Legislature, and not by this court. The constitutional aspect of the matter was not discussed.
The Higgins case was decided prior to Lane v. Warden, Maryland Penitentiary, 320 F. 2d 179 (1963). In the State of Maryland, the procedure for proving a previous conviction was similar to the practice heretofore prevailing in Arkansas. The previous conviction was proved during the trial of the current offense for which the defendant was then accused. In Lane v. State, 226 Md. 81, 172 A. 2d 400, in the trial on the merits, the defendant, before the commencement of the trial, demurred to that part of the indictment charging a previous offense. The demurrer was overruled, and the action of the trial court in that regard was affirmed by the Supreme Court of Maryland. Certiorari was denied by the Supreme Court of the United States. 82 Sup. Ct. 611. Later, Lane filed in the U. S. District Court for the District of Maryland, a petition for a writ of habeas corpus alleging that by introducing evidence of a previous conviction the State of Maryland had denied him a fair trial on the principal charge on which he was tried.
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Sam Robinson, Associate Justice.
The appellants were charged by felony information with the crime of grand larceny. Later, the information was amended by making the additional charge that appellant Jesse Miller had previously been convicted of the crime of burglary, and the additional charge that Leland Miller had previously been convicted of the crime of arson. A prior conviction increases the minimum penalty for the crime for which the defendant is then on trial. Ark. Stat. Ann. § 43-2328 (Repl. 1964).
At the beginning of the trial, defendants entered pleas of guilty, out of hearing of the jury, to that part of the information charging previous convictions, and pleaded not guilty to the principal offense charged. Counsel for defendants then filed a motion asking the trial court to instruct the prosecuting attorney not to read to the jury that part of the information charging previous convictions, and not to mention the previous offenses in the presence of the jury. Defendants’ counsel stated that the defendants would not testify in the case. The motion was overruled; the prosecuting attorney called the jury’s attention to that part of the information charging previous convictions, and to the fact that appellants had pleaded guilty to that part of the information. The pleas of guilty to the charge of previous convictions were also mentioned by the court in the instructions to the jury.
The specific question before the court at this time is whether the action of the trial court in permitting the previous convictions to be called to the attention of the jury deprived defendants of a fair trial within the meaning of the TJ. S. Constitution, Amendments 5, 6, and 14.
The court said in Lane v. Warden, Maryland Penitentiary, 320 F. 2d 179 (1963): “It is a rule not now
subject to challenge that constitutional due process of law requires a fair hearing in a fair tribunal. Although the Constitution does not demand the use of jury trials in a state’s criminal procedure, where a jury trial is provided it must be a fair trial.” Citing, Irvin v. Dowd, 366 U. S. 717, Fay v. New York, 332 U. S. 261, Palko v. Connecticut, 302 U. S. 319, Hughes v. Heinze, 268 F. 2d 864, Baker v. Hudspeth, 129 F. 2d 799. The court said in Baker v. Hudspeth, supra;
“The denial of a fair and impartial trial, as guaranteed by the 6th Amendment to the Constitution, is also a denial of due process, demanded by the 5th and 14th Amendments, and the failure to strictly observe these constitutional safeguards renders a trial and conviction for a criminal offense illegal and void and redress therefor is within the ambit of habeas corpus.” Citing many IT. S. Supreme Court cases.
The court said in Michelson v. U. S., 335 U. S. 469: “Courts that follow the common-law tradition almost unanimously have come to disallow resort by the prosecution to any kind of evidence of a defendant’s evil • character to establish a probability of his guilt. Not that the law invests the defendant with a presumption of good character, Greer v. United States, 245 U. S. 559, but it simply closes the whole matter of character, disposition and reputation on the prosecution’s case-in-chief. The state may not show defendant’s prior trouble with the law, specific criminal acts, or ill name among his neighbors, even though such facts might logically be persuasive that he is by propensity a probable perpetrator of the crime. The inquiry is not rejected because character is irrelevant; on the contrary, it is said to weigh too much with the jury and to so overpersuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge. The overriding policy of excluding such evidence, despite its admitted probative value, is the practical experience that its disallowance tends to prevent confusion of issues, unfair suprise and undue prejudice.”
Many times we have held that evidence of other crimes committed by a defendant is not admissible to prove his guilt of the crime for which he is then on trial. Williams v. State, 183 Ark. 870, 39 S. W. 2d 295; Ware v. State, 91 Ark. 555, 121 S. W. 927; Alford v. State, 223 Ark. 330, 266 S. W. 2d 804.
In the case at bar, previous convictions of crimes were charged in the information. The burden was on the state to prove previous convictions as charged. It can be argued that it was necessary for the jury to know about the previous convictions in order to fix the punishment as provided by statute where previous convictions are alleged in the indictment. It will be recalled, however, that the defendants had pleaded guilty to that part of the information charging previous convictions.
We have heretofore dealt with the question to some extent. In Rowe v. State, 224 Ark. 671, 275 S. W. 2d 887 (1955), it is pointed out that the information charged a previous conviction, and evidence was, therefore, admissible to prove the charge. The case is distinguishable from the case at bar because in the Bowe case there was no plea of guilty to the previous conviction; in the case at bar there was such a plea.
In Clubb v. State, 230 Ark. 688, 326 S. W. 2d 816, (1959), the defendant filed a motion to strike from the information the charge of a previous conviction. The motion was overruled. In affirming the trial court it was held there was no error in giving the state an opportunity to prove the charges.
Higgins v. State, 235 Ark. 153, 357 S. W. 2d 499 (1962) was reversed because the state was allowed to introduce inadmissible evidence in an effort to prove a previous conviction charged in the information. In that case we indicated disapproval of a procedure whereby the question of whether a defendant had been convicted previously would be determined by a jury at the same time the defendant’s guilt or innocence of the current offense charged was under consideration. But we also said we thought a change in procedure should be adopted by the Legislature, and not by this court. The constitutional aspect of the matter was not discussed.
The Higgins case was decided prior to Lane v. Warden, Maryland Penitentiary, 320 F. 2d 179 (1963). In the State of Maryland, the procedure for proving a previous conviction was similar to the practice heretofore prevailing in Arkansas. The previous conviction was proved during the trial of the current offense for which the defendant was then accused. In Lane v. State, 226 Md. 81, 172 A. 2d 400, in the trial on the merits, the defendant, before the commencement of the trial, demurred to that part of the indictment charging a previous offense. The demurrer was overruled, and the action of the trial court in that regard was affirmed by the Supreme Court of Maryland. Certiorari was denied by the Supreme Court of the United States. 82 Sup. Ct. 611. Later, Lane filed in the U. S. District Court for the District of Maryland, a petition for a writ of habeas corpus alleging that by introducing evidence of a previous conviction the State of Maryland had denied him a fair trial on the principal charge on which he was tried. The petition was denied, and Lane appealed to the U. S. Court of Appeals, 4th Circuit. The Court of Appeals held that in trying the charge of a previous conviction along with the primary charge against Lane he was denied a fair trial within the meaning of the 5th, 6th and 14th Amendments to the Constitution.
The state’s position was much stronger in the Lane ease than is the state’s position in the case at bar. In the Lane case there was no plea of guilty to the charge of having been convicted of a previous offense, whereas in the case at bar there ivas such a plea, and here it was, therefore, unnecessary for the state to prove the charge. In Lane v. Warden, Maryland Penitentiary, supra, the court said: “We reach the conclusion that under the facts of this case the reading to the jury, at the commencement of Lane’s trial, of that portion of the indictments relating to his prior convictions destroyed the impartiality of the jury and denied him due process of law. ’ ’
In the case at bar, the state has cited Breen v. Beto, 341 F. 2d 96 (1951) as holding to the contrary of Lane. True, the Court of Appeals, 5th Circuit, did refuse to follow Lane decided by the 4th Circuit, hut in the Breen case the court quoted from Crocker v. State of Texas, 385 S. W. 2d 392, as follows:
“Though the jury in this State assesses all punishment, except in those cases where the punishment is fixed by law, this Court has in the Salinas, Pitcock and McDonald cases, supra, approved the practice of permitting the accused to stipulate as to the prior convictions and thereby relieve the State of the necessity of reading to the jury that portion of the indictment which charges them and adducing proof before the jury of such prior convictions.” Salinas v. State, 365 S. W. 2d 362; Pitcock v. State, 367 S. W. 2d 864; McDonald v. State, 385 S. W. 2d 253.
As heretofore pointed out, prior to the Lane case, in our own case of Higgins v. State, 235 Ark. 153, 357 S. W. 2d 499, we had expressed the feeling that it was not fair to introduce evidence of previous convictions during the trial for the primary crime then charged. We felt, however, that the change in procedure was a matter that addressed itself to the Legislature. But in the Lane case, the Federal Court has said that such procedure is unconstitutional. We will follow that decision. It follows, therefore, that the trial courts can no longer follow the procedure in that respect which has heretofore been practiced, and it is now the duty of this court to outline an acceptable procedure to follow where a defendant is charged with a previous conviction:
That part of the indictment or information charging a previous conviction should not be read to the jury during the trial of the principal offense charged. If the defendant pleads guilty to the previous conviction charged, as was done in the case at bar, the matter can be handled by the court in charging the jury. The jury can be told that the minimum penalty is the minimum allowed when the previous conviction statute is taken into consideration. In other words, if the minimum penalty for the current offense charged is one year in the penitentiary and the defendant has pleaded guilty to one previous conviction, the court can tell the jury that in the event they find the defendant guilty they shall fix his punishment at not less than two years in the penitentiary, and not more than the maximum specifically provided by the statute for the principal crime charged.
If the defendant pleads not guilty to both the principal offense and the charge of a previous conviction, the question of guilt or innocence of the principal offense can first be submitted to the jury, the jury being informed as to the penalty for a first offense. If there is a verdict of guilty and the punishment fixed is a term in the penitentiary equal to, or exceeding the minimum allowed under the previous conviction statute, the matter is ended. There is nothing else to do insofar as the trial of the defendant is concerned.
If, on the other hand, there is a verdict of guilty and the minimum punishment assessed by the jury is less than that provided by the previous conviction statute, the defendant’s guilt or innocence of the previous conviction charge can be submitted to the jury, and if there is a verdict of guilty on that charge, the punishment assessed by the jury on the principal offense can be increased to comply with the minimum provided by the previous conviction statute.
Of course, if there is a verdict of not guilty of a previous conviction, the punishment remains as fixed by the jury in the first instance. In the event the punishment is left to the court in the first instance, there would be no trouble at arriving at the punishment.
During the course of the trial in the case at bar, the court having recessed on Thursday until the following Monday, a local newspaper published a statement purported to have been made by the trial court criticizing jurors serving at that term of court for assessing minimum prison sentences. We believe it would be a good practice for all courts to refrain from making any statement, other than a judicial ruling, that might have a tendency to influence a jury in arriving at a verdict in a pending case.
The defendants did not testify in this case. Over their objections and exceptions, the court instructed the jury that it was the privilege of the defendants to testify in their own behalf or to decline to so testify. In his argument to the jury, the prosecuting attorney specifically called this instruction to the attention of the jury, repeated it, and said: “You are instructed this is a privilege to them to either testify or not to testify. That is what the court says in that instruction.” Obviously, by arguing this instruction to the jury in that manner, attention was called to the fact that defendants had not taken the stand in their own behalf. This ivas error.
This court said in Evans & Foust v. State, 221 Ark. 793, 255 S. W. 2d 967: “Our law wisely provides that failure of a defendant to testify shall not create any presumption against him. The prosecuting attorney should carefully refrain from using any words or gestures which would be calculated to call a jury’s attention to the fact that a defendant has not testified. ’ ’
Reversed and remanded for new trial.
Harris, O. J. & McFaddin, J., concur in part and dissent in part.