George Rose Smith

“ It is the finality of a death sentence that makes capital cases unique. A life sentence has no similar irrevocability. If guidelines were mandatory in life sentence cases, it would be only the shortest of steps to extend the requirement to a sentence of, say, 50 years. Beyond that there is no reasonable stopping place. Moreover, a jury hardly needs to be told about matters that it would inevitably consider anyway, such as the defendant's youth or his mental condition or his past criminal record. ”

“ In the Adler case the statute was directed only at subversion, but the court's language dealt repeatedly with fitness as well as with loyalty. We have no doubt that a school board might ask an applicant whether he belonged, specifically, to the Communist Party, to any organization dedicated to the violent overthrow of the government, to a nudist colony, to a drag-racing club, to an association of atheists, or to other organizations that might be listed almost without number, membership in which might shed light upon the applicant's fitness to guide young minds in the schoolroom. ”

“ That is, counsel may have had a reason for not wanting the juror in question and may understandably have thought it better for his client to face one possible conviction for rape rather than two. We prefer, however, to stress the absence of any objection in the trial court, because arguments for a reversal without a supporting objection are being made with increasing frequency, especially when, as in this case and in appeals briefed by the State Appellate Public Defender, counsel on appeal were not also counsel in the trial court. We think it best to make our position clear. ”

“ We think that a municipal employer is not disabled because it is an agency of the State from inquiring of its employees as to matters that may prove relevant to their fitness and suitability for the public service. Past conduct may well relate to present fitness; past loyalty may have a reasonable relationship to present and future trust. Both are commonly inquired into in determining fitness for both high and low positions in private industry and are not less relevant in public employment. ”

“ Such matters are ordinarily emphasized by counsel in their closing arguments. The common law approach has been to allow juries, representing the common sense of the community, to impose punishment on a case by case basis. We are unwilling to say that for centuries common law jury trials have been a continuing denial of due process of law. Unless the Supreme Court so holds we do not think it proper for us to take that view.
Second, it is argued that the evidence does not supportthe verdict, for the reason that no rational person could find Wicks guilty beyond a reasonable doubt. ”

“ That the school authorities have the right and the duty to screen the officials, teachers, and employees as to their fitness to maintain the integrity of the schools as a part of ordered society, cannot be doubted. ”

“ By an information containing two counts the appellant was charged with having raped the same woman twice, once on August 17 and again on September 26, 1978. The prosecutrix testified to both occurrences, but the court, without objection, submitted only a verdict form permitting the jury to find the defendant guilty of rape, rather than of two separate offenses. The jury found Wicks guilty and fixed the punishment at life imprisonment. We find no merit in the six points that are argued, nor any other reversible error. ”

“ Act 10 provides that no person shall be employed as a teacher in any of the state's public schools or as a superintendent or principal in any elementary or secondary school without having first filed with the employing authority an affidavit giving the names and addresses of all organizations and associations to which the applicant has belonged within the preceding five years or to which he has paid regular dues or made regular contributions within that time. ”

“ Moreover, even if secrecy should not be observed in every instance it still cannot be surely predicted that any teacher will be eliminated from the school system. Unlike the statute upheld in the Adler case, supra, which mandatorily forbade the employment of persons belonging to subversive organizations, Act 10 does not affirmatively require a school board to take any action, no matter what associations an affidavit may reveal. ”

“ Some courts, especially the federal courts, have a "plain error" rule, under which plain errors affecting substantial rights may be noticed although they were not brought to theattention of the trial court. ”

“ State, 126 Ark. 354, 190 S.W. 441 (1916) , that no objection is necessary if the trial court fails to control a prosecutor's closing argument and allows him to go too far: "Appellant can not predicate error upon the failure of the court to make a ruling that he did not at the time ask the court to make, unless the remarks were so flagrant and so highly prejudicial in character as to make it the duty of the court on its own motion to have instructed the jury not to consider the same. See Kansas City So. Ry. Co. ”

“ State, 223 Ark. 304, 265 S.W.2d 709 (1954) , in both of which the judge entered the jury room without the knowledge of defense counsel. (Criminal Procedure Rule 36.21 [1976] embodies the general principle.)
A third exception is a mere possibility, for it has not yet occurred in any case. That relates to the trial court's duty to intervene, without an objection, and correct a serious error either by an admonition to the jury or by ordering a mistrial. ”

“ Such investigations are the usual practice among private employers, and, as the court pointed out in Garner v. Board of Public Works of Los Angeles, 341 U.S. 716, public employers are not denied the privilege of making similar inquiries. ”

“ She discussed the incident with her married daughter and with a fellow employee where she worked, both of whom testified, but she did not report either offense to the police until about two weeks after the second one, when certain damage to her screens led her to suspect that still a third attempt to enter her house had been made. ”