text:
    Hubert BLANKENSHIP v. STATE of Arkansas
    CR 75-89
    527 S.W. 2d 636
    Opinion delivered September 22, 1975

      Carl Creekmore, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Robert A. Newcomb, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Hubert Blankenship was found guilty of keeping, conducting and operating a gambling house in violation of Ark. Stat. Ann. § 41- 001 (Repl. 1964). On appeal, he first asserts that his conviction should be reversed because the circuit court erred in denying his motion to suppress evidence obtained through a search of Apartment 25 of the Van Burén Motel, the place where the state alleged he carried on the operation. The basis of the attack upon the search was the assertion that the warrant therefor was unlawfully issued because probable cause was not shown by the affidavits upon which it is based. We hold that there was sufficient showing of probable cause.

The search warrant was issued by the circuit judge. It authorized the search of Apartments, 24, 25, 26 and 30 of the Van Burén Motel. The warrant recites that it is based upon the affidavits of Dwain Thompson and Curtis Balch. It includes a finding that the judge was satisfied that probable cause existed and that grounds for issuance of the search warrant existed.

In his affidavit, Thompson stated that: when he came to Fort Smith on February 25, 1974, on a special assignment to investigate gambling activities in Crawford and Sebastian Counties, he talked to Detectives Balch and Jankowski of the Fort Smith Police Department’s vice squad and they gave him a telephone number (474-3508), which they believed to be in use in gambling activities; on the following day, he made two calls to this number and recorded the conversations on tapes and transcriptions of these conversations were attached as a part of his affidavit; he obtained a copy of records of the Southwestern Bell Telephone Company showing that this number was listed in the name of Hubert Blankenship at Apartment 30, Van Burén . Motel in Van Burén; two days later he went to the motel and sketched its layout, showing the location of motel room 30, and this sketch was made a part of his affidvait. The transcript of the telephone calls revealed that: Thompson had talked with a person who identified himself as Bobby; Bobby could not give Thompson the “scratches” when he called at 10:00 A.M., but later had them and stated them in nine races; Thompson asked for Hubert, but was told that he was “out on the run somewhere”; when Thompson tried to place a bet, Bobby refused to take it because he did not know the caller, who had been identified to him only as R.A., a salesman for Jimco Electronics, in town for three or four weeks, but said that Hubert would return in about 15 minutes and might take it; about an hour later when Thompson called, the person answering identified himself as Hugh, but Thompson addressed him as Hubert and again identified himself as R.A.; the answering person said, “R.A., I have never played with you;” “I can’t fool with you until I find out who you are. . .”, “. . .if you’ll find somebody, call me, . . .” and “. . .just find somebody that I know that knows you and we might do some business”.

In his affidavit Balch stated that a reliable, confidential informer, who had previously given him reliable information on gambling activities had related, on February 28, 1974, that he had personally placed bets with Billy Reeder at Apartment 17 of the Van Burén Motel, had seen numerous betting slips, racing forms and scratch sheets there and had used telephone number 474-8722 in placing bets with him on numerous occasions, and that Bobby Plymale and Hubert Blankenship were booking together in Apartment 25 and had access to Apartments 24 and 26, which could be used for booking purposes by running the telephone cord out the window or under the floors into those rooms, and that théy sometimes used Apartment 30, where Blankenship lived, for booking purposes.

We have no hesitation in holding that these affidavits, considered together, are sufficient basis for a determination of probable cause for a search of Apartment 25, and rejecting appellant’s arguments that the affidavits contain only affirmations of suspicion and belief, or conclusions of the complainant. Furthermore, unlike the situation in Cockrell v. State, 256 Ark. 19, 505 S.W. 2d 204, the affiant Balch did state reasons for his giving credence to the statements of the informer. In Cockrell, the affiant did not even know his informant and had no knowledge of his reliability. As in Flaherty v. State, 255 Ark. 187, 500 S.W. 2d 87, we accord some weight to the findings of probable cause by the issuing judge and hold that the affidavits presented, when considered together, constitute a substantial basis in support of that determination. It is true that we held in Cockrell that oral statements not reduced to writing and accompanied by affidavit could not be considered in determining probable cause. Here, the Aguilar test requiring that the magistrate be informed of underlying circumstances supporting a statement as to the reliability of a confidential informer was unquestionably met. The affidavit of Thompson clearly corroborated the statements of the informer to Balch. See Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L.Ed. 2d 723; Bailey v. State, 246 Ark. 362, 438 S.W. 2d 321. See also, Spinelli v. U.S., 382 F. 2d 871 (8 Cir., 1967). We find no reason why we should consider the two affidavits separately in determining the propriety of that finding, as appellant does, on the premise that the question must be decided upon the basis of the Balch affidavit alone because Thompson did not mention Apartment 25 in his affidavit.

Blankenship requested that the circuit judge give instructions defining offenses covered by Ark. Stat. Ann. §§41-2030, 41-2003 and 41-2004 (Repl. 1964), as lesser included offenses. The statute defining the crime of which Blankenship was convicted makes the keeping, conducting or operation of a gambling house or place where gambling is carried on, or the setting up, keeping or exhibiting of a gambling device, a felony. Under that statute, one who is interested, either directly or indirectly, in the operation of the gambling house or the setting up or exhibition of the gambling device, either by furnishing money or other articles for either of those purposes is guilty of the offense.

In viewing the court’s action, we will first consider Ark. Stat. Ann. § 41-2003, which makes the setting up, keeping or exhibiting of a gaming table or gambling device adapted, devised or designed for the purpose of playing any game of chance, at which any money or property may be won or lost, a misdemeanor. Betting on horseracing has been recognized as a game of chance as defined by that statute. Albright v. Muncrief, 206 Ark. 319, 176 S.W. 2d 426. A gambling device under both statutes includes instruments and devices which are not gambling devices per se when they are used for gambling purposes. Albright v. Muncrief supra. Even though Ark. Stat. Ann. § 41-2003 may define a lesser offense that is included in the felony defined by § 41-2001, it was not error to refuse this instruction because Blankenship was either guilty of operating a gambling house or guilty of nothing at all. Caton v. State, 252 Ark. 420, 479 S.W. 2d 537. To say this, however, requires a review of the evidence.

Lt. Dwain Thompson of the Arkansas State Police called telephone numbers given him by a confidential informer. The first call resulted in a conversation with a man who said, in response to Thompson’s inquiry, that he did not have the “scratches”, but would have them in about 15 minutes. On a second call to the same telephone number, the man who identified himself as Bobby refused to accept a bet Thompson sought to place, but said that Hubert, who was not in at that time might take his bet. When Thompson called back 45 minutes later, Hubert would not take his bet either, but said that he would if Thompson would get a recommendation from someone with whom Hubert was betting. Thompson then enlisted the aid of other officers and went to Room 25 at the Van Burén Motel and, upon being admitted, found Bobby Plymale and Hubert Blankenship there. In the room, he saw two telephones, which were constantly ringing and directed State Policeman Green and Sgt. Phillips to hook tape recorders to them and record any calls that came in. Sgt. Bradford was assigned to the confiscation and labeling of all evidence that might be used in bookmaking.

Sgt. Bradford found and took into his possession a ledger, three sheets of yellow paper with tickets wrapped inside them, a cigar box containing tickets, three sheets of yellow notebook paper, newspapers containing current racing forms, telephones, some yellow legal pads and some checks. Sgt. Phillips recorded calls from persons attempting to place bets.

An off-track establishment maintained for the purpose of receiving and making bets on horse races is a gambling house, regardless of whether betting on the races is forbidden by statute, and its operation is a felony. Albright v. Karston, 206 Ark. 307, 176 S.W. 2d 421. In this case Blankenship was, under the evidence, either operating a bookmaking establishment, i.e., running a gambling house, or he was guilty of nothing at all. The devices seized, therefore, were gambling devices, only if he were actually running a gambling house or was interested in its operation. See Bostic v. City of Little Rock, 241 Ark. 671, 409 S.W. 2d 825; Burnside v. State, 219 Ark. 596, 243 S.W. 2d 736; Albright v. Muncrief, supra.

The state relies upon Flaherty v. State, 255 Ark. 187, 500 S.W. 2d 87, but this case differs from that in that all the elements of a violation of § 41-2003 were charged in the information here, but not there. We found it unnecessary, in that case, to consider the question whether the articles there seized were gambling devices. Under the evidence here, they were, but only because the operation under the evidence, was, in fact, a gambling house.

By applying the identical process of reasoning it is clear that there was no error in denying instructions that would have permitted a conviction under Ark. Stat. Ann. § 41-2004. There was no evidence which would have supported a conviction under Ark. Stat. Ann. § 41-2030 because there was no attempt made to prove a specific bet made by Blankenship.

The judgment is affirmed.


source: Caselaw Access Project

author: Conley Byrd, Justice.

license: Public Domain

text:
    Denver WITHAM v. STATE of Arkansas
    CR 75-65
    527 S.W. 2d 905
    Opinion delivered September 22, 1975

      Kenneth C. Coffelt, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Robert A. Newcomb, Asst. Atty. Gen., for appellee.
   Conley Byrd, Justice.

Upon a charge of having murdered Tommy Stanley Wells by beating, a jury found the appellant Denver Witham guilty of first degree murder and fixed his punishment at life imprisonment. For reversal he makes the contentions hereinafter discussed.

Sufficiency of Evidence: The record shows that appellant Denver Witham and Johnnie Witham were cousins. The two Withams and Tommy Stanley Wells were seen leaving a place known as “The Texas Lounge” about 1:30 a.m. March 12, 1974. John Tucker testified that he saw the deceased get in the back seat of Denver Witham’s automobile and that Johnnie Witham and Denver drove off with Denver doing the driving. The body of Tommy Stanley Wells, beaten beyond recognition, was discovered on the China Grove Cemetery Road after daylight the same day by William Holloway, a logging contractor. The tire tracks at the scene where the deceased’s body was found matched the rear tires on Denver’s automobile.

Linda Clark testified that she had a child by Denver out of wedlock and that she had spent the night of March 11th at the home of Denver’s parents. She testified that about 2:30 or 3:00 a.m. March 12th, Denver and Johnnie came into the house. According to her testimony, Denver was crying and told his mother that he and Johnnie had beaten a man to death. Denver had a little blood on his shirt and in his hair. Johnnie was so bloody that he went into the bathroom and changed clothes. She said that Denver told Johnnie to go out in the car and get the piece of pipe that Denver identified as the murder weapon. She said that Johnnie, at Denver’s instructions, went out and washed the blood off the hood, windshield and driver’s side of the automobile.

The medical evidence confirmed that the deceased was killed by a blow from a blunt instrument which was compared to that which would happen if one used a baseball bat with the force applied by a big league baseball player.

Denver’s testimony was that he got drunk at “The Texas Lounge” and then crawled in the back seat of his automobile and went to sleep. He said that he remembered nothing that occurred until he woke up on the couch in his parent’s home the next morning. His mother and sister corroborated his story that he was asleep in the back seat of the automobile when he got home and also testified that they went out and got him to come in arid sleep on the living room couch. Both the mother and sister admitted that Johnnie Witham was bloody. However, they testified that Johnnie only told them that he had been in a fight and that they knew nothing about the killing until someone told them about reading it in the paper.

It was for the jury to resolve the conflicts in the testimony, and on the record, we find that there is substantial evidence to support the jury’s verdict.

Suppression of Evidence: In his motion for new trial appellant alleged that the State wrongfully suppressed evidence that would have been favorable to him. At the hearing thereon, he testified that after the trial Johnnie Witham stated in front of others, including law enforcement officials, that Denver had nothing to do with the killing. The record of that hearing shows that Johnnie was tried and convicted of the murder of Wells before Denver’s trial, but that he did not take the stand to testify in his own behalf. The prosecution had Johnnie subpoenaed as a witness in Denver’s trial but did not call him. Furthermore, when Johnnie was called as a witness by Denver, at the hearing on the motion for new trial, Johnnie refused to testify on the ground that it might tend to incriminate him since his conviction was then on appeal.

The authorities generally recognize that the State cannot be charged with wrongfully suppressing evidence of which it had no knowledge or that was equally available to both the prosecution and the defense. See Jordan v. Bondy, 114 F. 2d 599 (D.C. Cir. 1940). Here the evidence, of which the appellant complains, could only have been given by Johnnie Witham, and since he invoked the privilege against self-incrimination when appellant sought to produce such evidence, we are unable to see how any action on the part of the State prevented the production of such evidence. Furthermore, the record as presented does not show that the State had any knowledge of such evidence before appellant’s trial.

Excessive Judgment: Finally, appellant argues that the penalty of life imprisonment should be reduced because it is highly excessive under the record presented. We find no merit in this contention. The killing here was a brutal one. The evidence on the part of the officers showed that the deceased’s body had been stripped of all valuables except a class ring when it was found. If the testimony of Linda Clark can be believed, it would indicate that perhaps appellant stripped the deceased of his valuables. Also, the record shows that appellant had been convicted and sentenced to the State prison on two previous occasions — one time for burglary and grand larceny and one time for voluntary manslaughter.

Affirmed.


author: Frank Holt, Justice.

text:
    Gary Wayne WICKLIFFE and Jimmy Don SCOTT v. STATE of Arkansas
    CR 75-60
    527 S.W. 2d 640
    Opinion delivered September 22, 1975

      John M. Fincher, for appellants.

      Jim Guy Tucker, Atty. Gen., by: Robert A. Newcomb, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

Appellants were convicted by a jury of grand larceny. Wickliffe’s punishment was assessed at three years and Scott’s at three years (with two suspended) in the State Department of Correction. Appellants first contend for reversal that the court erred in denying their motion to suspress certain evidence. The basis for the motion was that the state acquired possession of certain items, particularly a set of tree trimming shears, by an unreasonable search and seizure which is prohibited by the Federal Fourth Amendment and Art. 2, § 15 of the Arkansas Constitution (1874). Appellants argue there was neither probable cause for their arrest nor the seizure of their vehicle and that a warrantless search, approximately twelve hours after their arrest at a time when they were in custody, was in violation of their constitutional rights.

A witness for the state testified that about 9 p.m. he observed a pickup truck near his house passing back and forth on a road between some highline poles which were adjacent to the highway. The truck’s motor “was killed” and shortly thereafter the “highline roared.” He then walked down to where the unattended truck was parked. He observed it closely and that copper wire was missing from the highline poles for approximately “3 pole lengths” or “nearly a quarter” of a mile. The witness promptly reported the suspicious circumstances to the sheriff’s office. A deputy sheriff testified that he received the information supplied by this witness and drove to the scene looking for a vehicle fitting the descrption. When he arrived, the two occupants, the appellants, drove away in a pickup truck. He stopped them after a short distance and took them into custody. He looked into the back of the pickup truck and saw a pair of tree trimmers in open view. He returned to where he first observed the vehicle and found two rolls of copper wire which he then placed in the back of the truck along with the trimmers. He had the truck towed into a nearby town and locked up in a fenced salvage yard. The next day, the appellants being in jail, the officer removed the trimmers and other articles from the open bed of the pickup truck without a search warrant.

All warrantless searches and seizures are not prohibited by our federal and state constitutions. Only those which are unreasonable. Alexander v. State, 255 Ark. 135, 499 S.W. 2d 849 (1973). Also an automobile, given probable cause, is subject to a warrantless search and seizure because it is a mobile or fleeting object. Roach v. State, 255 Ark. 773, 503 S.W. 2d 467 (1973); and Easley v. State, 255 Ark. 25, 498 S.W. 2d 664 (1973); and Carroll v. United States, 267 U.S. 132 (1925). Certainly, in the case at bar, there existed probable cause for the officer to stop and take control of the pickup truck and arrest appellants in view of the recited activities of its occupants and the fact that it fit the description relayed to police officers by a witness at the scene of the alleged offense. Anderson v. State, 256 Ark. 912, 511 S.W. 2d 151 (1974); Roach v. State, supra; Easley v. State, supra; and Cox v. State, 254 Ark. 1, 491 S.W. 2d 802 (1973). The appellants, however, argue vigorously that a warrantless search of the pickup truck the following day or about twelve hours later at the enclosed junkyard where the officer had impounded the vehicle under lock and key was illegal.

In Cox and Easley we held that where the intial intrusion of a vehicle was justified a subsequent warrantless search of a vehicle, after being removed into town, comported with constitutional standards. In doing so, we reviewed pertinent federal decisions. In approving a subsequent warrantless search of impounded vehicles in Cox and Easley, we cited, inter alia, Chambers v. Maroney, 399 U.S. 42 (1970). There the warrantless search of an automobile was made at the police station sometime after the car was apprehended on the highway. In Coolidge v. New Hampshire, 403 U.S. 443, 463 N. 20 (1971), the court said:

It is true that the actual search of the automobile in Chambers was made at the police station many hours, after the car had been stopped on the highway, when the car was no longer movable, any “exigent circumstances” had passed, and, for all the record shows, there was a magistrate easily available. **** The rationale of Chambers is that given a justified initial intrusion, there is little difference between a search on the open highway and a later search at the station.

In the case at bar, since a justified initial intrusion existed at the time the vehicle was taken into custody, at which time the offending articles were in plain view, we hold the appellants’ asserted constitutional rights were not violated by the officer retrieving the articles from the open bed of the impounded truck some twelve hours later.

Appellants next contend that it was error to admit the tree trimmers into evidence “because (1) they were the fruits of an illegal search and seizure **** and (2) they were not competent evidence because the chain of custody was never established.” As indicated, the trimmers were not the fruit of an illegal search and seizure. Neither can we agree that the proper chain of custody was not sufficiently established. The arresting officer testified that he saw the trimmers in open view in the back of the pickup truck which the appellants were occupying at the time of their arrest. Appellants argue that the salvage yard owner, who towed the truck into town, was not called as a witness; the officer, who made the arrest, could not say if anyone else went with the truck; neither were there any identifying marks placed on the trimmers at the scene of the arrest; and it was not until the next day that the officer went to the salvage yard and took possession of the trimmers and marked them for identification. Therefore, appellants assert the evidence was inadmissible since the state did not establish that it had the sole and exclusive possession, control and custody of the trimmers from the time they were taken from appellants until they were introduced into evidence. There is no evidence whatsoever that the trimmers were tampered with in any manner and were not authentic evidence. The state’s witness testified that the trimmers were the same as those in the truck on the night of the arrest.

In West v. United States, 359 F. 2d 50, 55 (8th Cir. 1966), cert. den. 385 U. S. 867 (1966), the court said:

Appellant seems to be arguing that as long as it was conceivable that the evidence could have been tampered with, it should not have been admitted. This, however, is not the law. The government need not exclude all possibilities of tampering. The Court need only be satisfied that in reasonable probability the article had not been changed in important respects.

Further, the court held that the court is accorded some discretion in determining the admissibility of evidence.

In Fight v. State, 254 Ark. 927, 497 S.W. 2d 262 (1973), we said “ [T] he purpose of the chain of identification is to prevent the introduction of evidence which is not authentic.” To the same effect are Witham v. State, 258 Ark. 348, 524 S.W. 2d 244 (1975); and Freeman v. State, 238 Ark. 804, 385 S.W. 2d 156 (1964).

In the case at bar, we are of the view the court did not abuse its discretion in holding that the evidence was admissible since in all reasonable probability the trimmers had not been changed. The jury was free to disregard or discredit the evidence due to the asserted deficiency.

Affirmed.


author: George Rose Smith, Justice.

text:
    Louise SMITH v. STATE of Arkansas
    CR 75-78
    528 S.W. 2d 360
    Opinion delivered September 29, 1975

      John M. Fincher, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Gary Isbell, Asst. Atty. Gen., for appellee. ¡

   George Rose Smith, Justice.

The appellant was found guilty of having sold, in September of 1974, an obscene film in violation of Ark. Stat. Ann. §§ 41-2729 et seq. (Supp. 1973). The jury fixed her punishment at a fine of $2,000 and imprisonment for two years. For reversal the appellant questions the constitutionality of the statute and the accuracy of the trial court’s instructions to the jury.

Section 1 of the statute, Act 411 of 1967, reads as follows:

Hereafter, it shall be unlawful for any person knowingly to exhibit, sell, offer to sell, give away, circulate, produce, distribute, attempt to distribute, or have in his or her possession any obscene film. [Ark. Stat. Ann. § 41-2729.]

It is first argued that the quoted language is constitutionally overbroad, because it makes mere possession of an obscene film a criminal act, contrary to the holding in Stanley v. Georgia, 394 U.S. 557 (1969). Even though the appellant was charged with the sale of an obscene film rather than with its mere possession, she argues that she has standing to question the asserted overbreadth, for otherwise the continued existence of the statute would tend to suppress constitutionally protected rights. Gooding v. Wilson, 405 U.S. 518 (1972).

A complete answer to this argument lies in the separability of that part of the statute prohibiting the possession of an obscene film. Section 3 of the Act declares possession to be a misdemeanor, but the other prohibited acts (all of which involve conduct affecting some other person) are declared to be felonies. Ark. Stat. Ann. § 41-2731. We cannot say that the two provisions are so interwoven and so interdependent that the legislature would not have passed one without the other. To the contrary, it appears to be reasonably certain that the lawmakers would have prohibited the enumerated felonies even if the misdemeanor provision had been known to be invalid. Hence the latter is separable and does not affect the constitutionality of the felony provisions. Levy v. Albright, 204 Ark. 657, 163 S.W. 2d 529 (1942).

In harmony with the Supreme Court’s decision in Miller v. California, 413 U.S. 15 (1973), we have held that our statute is not so vague as to be invalid. Herman v. State, 256 Ark. 840, 512 S.W. 2d 923 (1974), cert. den., 420 U.S. 953 (1975); Gibbs v. State, 255 Ark. 997, 504 S.W. 2d 719 (1974). The appellant argues that all three of those decisions are wrong and should not be followed, and, in effect, that the concept of obscenity cannot be defined with sufficient precision to meet constitutional standards. Needless to say, we are bound by the Supreme Court’s language in Miller. We find no reason to modify our own decisions in Herman and Gibbs. And we are by no means persuaded that the First and Fourteenth Amendments exempt traffic in obscene materials from any legislative control whatever.

Lastly, the appellant argues several asserted errors in the trial court’s detailed instructions to the jury. It is first contended that the court should not have deleted certain words (which we have italicized) from a defendant’s requested instruction telling the jury that a film cannot be deemed obscene unless it is without ideas or serious literary, artistic, political, or scientific or educational or entertainment value or other social importance. A single objection was made to the court’s several deletions, which of course did not shift to the court the burden of deciding that some but not all of the deletions were proper. Hence it is enough for us to observe that there was certainly no error in taking out the word “ideas,” else the jury would have been erroneously told that no film having ideas can be obscene.

The court was not required to strike out a reference to “contemporary community standards” in the State’s general instruction defining the issues. A similar reference was approved in Jenkins v. Georgia, 418 U.S. 153 (1974). Moreover, the same phrase was used in the appellant’s instruction number 3, which the court gave.

Three essential elements of the offense, to be proved by the State, were explained in the appellant’s requested instruction number 1. It is argued that the court should not have modified the third element by adding the phrase that we have italicized: “That the Defendant had knowledge of, or reasonably should have known, the nature, character, and content of the motion picture.” The modification, however, could not have been prejudicial in the case at bar, because precisely the same language was included in a much more explicit explanation of guilty knowledge in instruction number 17-A, which the court gave at the appellant’s own request:

The law requires that the defendant acted knowingly. This means that the State must prove beyond a reasonable doubt that the defendant had guilty knowledge. In other words, the proof must show, beyond a reasonable doubt, that the defendant knew or reasonably should have known the contents of the box which housed the motion picture were obscene, as specifically defined, to give the defendant fair notice of what material is prohibited.
Unless the proof establishes such knowledge beyond a reasonable doubt, the defendant must be acquitted.

We have considered all the arguments presented by the appellant and find them to be without merit. She appears to have received a fair trial, according to law.

Affirmed.


author: John A. Fogleman, Justice.

text:
    Franklin FREDERICK v. STATE of Arkansas
    CR 75-62
    528 S.W. 2d 362
    Opinion delivered September 29, 1975

      Harold L. Hall, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Gary Isbell, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Appellant Frederick contends that the evidence was insufficient to support a jury verdict finding him guilty of assault with intent to rape. He also argues that the court erred in refusing to give his requested instruction on simple assault, as a lesser included offense. The state has confessed error on the matter of the jury instruction in reliance on Fike v. State, 255 Ark. 956, 504 S.W. 2d 363, but we find no error in that respect, as we will point out. Appellant also challenges the sufficiency of the evidence, so we must consider it, viewing it in the light most favorable to the state. We find it sufficient.

Martha Martin Ward worked until 10:45 on the night of July 4, 1974. She then went to her place of residence at 1500 Scott Street in Little Rock, where she found her sister and two nieces, aged 9 and 5 and her 11-month-old grandson. The sister left immediately to report for work at 11:00. Mrs. Ward’s cousin, Danny Ray Powell, came and stayed until 2:00 A.M. and her fiance visited for 35 or 40 minutes and left about 12:30 A.M. Mrs. Ward’s 16-year-old daughter came home a little after midnight and later fell asleep on a living room couch, while watching television. Mrs. Ward went to bed to sleep about 2:30 A.M., wearing her underclothes. She awakened sometime before 4:00 A.M. to find a hand in her face. Thinking it was her cousin, she said, “Don’t scare me like that”. A male person, positively identified as Frederick, responded, “Shut up, bitch, I am going to kill you.” This man had one knee on her bed and was propped on the bed in such a manner that one foot was on the floor. When she screamed, he slapped her and told her to shut up, but she screamed again. At this time her daughter awakened and, thinking her mother was having a nightmare, came to the door of the room. Standing in the doorway near the infant grandson’s crib, she asked this man, “What are you doing to her?” and commanded, “Let her go.” Frederick ordered the daughter to sit down and, when she did not comply, told Mrs. Martin to tell her to do so or he was going to kill her (Mrs. Martin) immediately. The daughter then sat on the foot of the bed. Frederick told her to watch because she was next. Frederick had an “afro comb” which he started moving down below Mrs. Martin’s waist, and while holding her, he tried to cut her vagina with the comb, which was “filed down”. He had ripped her underclothes to shreds. Mrs. Martin then pushed him backward into a chair with her foot and told her daughter to go for help, saying that if one of them had to die, let it be her (Mrs. Martin). As the daughter escaped, Frederick removed a sheet Mrs. Martin had over her, tore her pants off, dragged her through the door and out the Jiving room door, in the front yard, he kept hitting her and stripping off her clothes, tried to jab her with the comb and pull her around the house, but, when either a person or a car approached, he threw her down, kicked her and ran away, as her sister and daughter were returning to the house. Mrs. Martin did not see Frederick again until 4:00 or 4:30 P.M., when she identified him as her assailant at police headquarters.

Appellant relies upon Douglass v. State, 105 Ark. 218, 150 S.W. 860, 42 LRA, NS, 524, which in turn is bottomed upon Paul v. State, 99 Ark. 558, 139 S.W. 287 and Anderson v. State, 77 Ark. 37, 90 S.W. 846. In each of these cases we found the evidence insufficient, but all lack an element present here. In Douglass, we said that taking hold of the victim’s hand, awakening her and drawing a pistol on her with a threat to kill her if she did not keep quiet were not overt acts constituting the beginning of, or a part of the perpetration of, the crime of rape, but were merely a part of the preparation for the act. In Paul, the assailant made improper remarks to the victim, placed his hand on her arm and offered her fifty cents. There were no acts indicative of an intention to rape her. In Anderson, the assailant never put his person in position to have sexual intercourse, never attempted to throw his victim down or interfered with her clothing.

This case may also be distinguished from Poole v. State, 234 Ark. 593, 353 S.W. 2d 359, not cited by appellant. In Poole, no part of the body of the victim of the assault was touched other than her mouth and throat. The assailant put a hand over her mouth, his arm around her neck, grabbed her by the throat and dragged her under a viaduct. This court held (4-3) that there was no evidence of an intention to rape.

It is clear from these cases that an intention to have sexual intercourse with the victim is not sufficient, unless an intention to accomplish that purpose by force may be ascertained from acts or words connected with the assault and there is some overt act toward accomplishment of that purpose. In Poole, we recognized that intent to rape might be proved by circumstances surrounding the assault from which the intent may be inferred. See also, Wills v. State, 193 Ark. 182, 98 S.W. 2d 72; Boyett v. State, 186 Ark. 815, 56 S.W. 2d 182.

Here, the assailant removed the sheet with which his victim attempted to keep herself covered, tore her underclothes away, attempted to throw her down, touched her private parts with his comb and remarked to her daughter that she was next. These acts, when considered together, along with the assailant’s position on the bed constitute sufficient circumstantial evidence from which a reasonable mind might conclude that the assault here was the beginning and a part of the perpetration of the crime of rape and that it was made with the intention of raping the victim. As pointed out in Poole, the intent is to be ascertained from the commission of some act or acts at the time or during the progress of the assault. We also said that there must be some act or words in connection with the assault to show the intent. We find that there were such acts and words in this case. In McGee v. State, 215 Ark. 795, 223 S.W. 2d 603, the assailant’s overt acts were held to be sufficient. There he grabbed the female victim “low down” on her person, put his hands “all over her”, knocked her down, persisted in the assault in a manner that resulted in the buttons being torn from her dress, and threw her down but failed to take the victim’s purse which he could easily have done.

In Boyett v. State, 186 Ark. 815, 56 S.W. 2d 182, the assailant forced his victim off a road into a forest, placed his hand over her mouth to prevent an outcry, threw her upon the ground, exposed her person by pulling down her underclothing and got down on his knees over her, but for some reason proceeded no further. This evidence was held sufficient to sustain a conviction of assault with intent to rape.

Not only is the case at bar readily distinguishable from the line of authorities relied upon by Frederick, but it clearly falls into the McGee-Boyett category.

Appellant requested that the court instruct the jury on the offense of simple assault as a lesser included offense. It is true that simple assault is a lower degree in the generic class of assault to rape. See Wills v. State, 193 Ark. 182, 98 S.W. 2d 72. Recently, we reversed a conviction of assault with intent to rape for the failure of the trial court to give an instruction on simple assault in Fike v. State, 255 Ark. 956, 504 S.W. 2d 363. The reasons given were that simple assault is necessarily contained within assault with intent to rape and the evidence showed the existence of all the elements of the lesser offense, the charge contained substantive allegations permitting the proof of the lesser offense, and the jury had the prerogative to accept all or any part of the testimony of any witness, whether controverted or not, and to evaluate the evidence and consider whether there was only an unlawful assault, even though the evidence was sufficient to sustain conviction of the greater offense.

Yet, we are justified in approving the refusal of such an instruction where the undisputed evidence shows that the accused was guilty of assault with intent to rape or nothing at all. See Smith v. State, 150 Ark. 193, 233 S.W. 1081. Furthermore, where it is clear that the accused is guilty of a more serious offense than the lesser offense on which he asks an instruction, it is not error to refuse an instruction on the lesser offense. Poole v. State, 234 Ark. 593, 353 S.W. 2d 359. The assailant of Mrs. Ward, at the very least, was guilty of an aggravated assault or assault with a deadly weapon. See Ark. Stat. Ann. § 41-605 (Repl. 1964). Consequently, there was no error in refusing the instruction on simple assault.

The judgment is affirmed.


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    Jimmy MERRITT v. STATE of Arkansas
    CR 75-93
    528 S.W. 2d 365
    Opinion delivered September 29, 1975

      McArthur, Lofton & Wilson, P.A., for appellant.

      Jim Guy Tucker, Atty. Gen., by: Gary Isbell, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

Appellant was found guilty by a jury of the delivery of heroin in violation of Ark. Stat. Ann. § 82-2617 (Supp. 1973) and his punishment was assessed at seven years in the State Department of Correction. Appellant first contends for reversal that the evidence is insufficient to sustain the verdict. We cannot agree.

Appellant recognizes that, in testing the sufficiency of the evidence on appeal, we consider only that evidence and all reasonable inferences deducible therefrom in the light most favorable to the appellee and if any substantial evidence exists, we must affirm. Miller v. State, 253 Ark. 1060, 490 S.W. 2d 445 (1973). Here, it appears that the thrust of appellant’s argument is that the statute requires something of value be received by appellant for the delivery of a controlled substance and the state’s proof is deficient in that respect. Appellant asserts the sale was complete before he received anything of value. The state adduced evidence that a narcotics officer had negotiated with appellant about selling him some heroin. The appellant requested $100 for a gram. The officer refused to give it to him since he did not know him well enough. However, as requested by appellant, the officer gave the money to appellant’s female confederate when she arrived. She and the appellant then left together and returned approximately twenty minutes later. The appellant’s accomplice delivered the heroin to the officer at which time she and the appellant identified the substance to the officer as being heroin. The appellant then asked the officer to give him “a portion of the heroin for getting it for him.” The officer refused. However, he gave him $10. The evidence is amply sufficient that appellant was an active participant in the transaction. Miller v. State, supra.

Neither can we agree with appellant that the testimony of the state’s expert witness, a chemist employed by the State Health Department, should have been excluded. It appears that the objection to his testimony was based upon the asserted right of the appellant to have the substance (heroin) examined and analyzed by an independent chemist or by someone other than an employee of an agency of “the State who works hand in hand with the law enforcement agencies.” We have rejected a similar argument in the recent case of Hale v. State, 246 Ark. 989, 440 S.W.2d 550 (1969). See also Upton v. State, 254 Ark. 664, 497 S.W.2d 696 (1973); and Grissom v. State, 254 Ark. 81, 491 S.W.2d 595 (1973). Here, suffice it to say that the record does not reflect that appellant was ever refused a request to have the substance (heroin) examined by an expert witness of his own choosing.

Affirmed.


text:
    Sammie Lee JOHNSON v. STATE of Arkansas
    CR 75-104
    528 S.W. 2d 367
    Opinion delivered October 6, 1975

      Thomas G. Montgomery, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Bill D. Etter, Dep. Atty. Gen., for appellee.
   George Rose Smith, Justice.

Sammie Lee Johnson was charged with robbery committed with a firearm, he being only 20 years old at the time. There was no real issue of guilt or innocence, because Johnson testified that he and Jim McGee, aged 27, committed the robbery, though Johnson denied that he had shot anyone. The jury, in finding Johnson guilty upon both counts, imposed sentences of 21 and 15 years. Counsel sets out six points for reversal but admits that two are without merit.

First, at the outset counsel contended that his client, an indigent, was entitled to a complete record of the voir dire examination of the jury. The court properly denied that request, holding that the defendant was entitled only to a record of each question thought to be improper. There is no requirement that an indigent defendant be supplied at public expense with such parts of the record as are not pertinent to any issue to be decided on appeal. Willis v. State, 42 Ala. App. 85, 152 So. 2d 883 (1963); State v. Badda, 66 Wash. 2d 314, 402 P. 2d 348 (1965); see also Draper v. Washington, 372 U.S. 487 (1963), and ABA Standards Relating to Criminal Appeals, § 3.3 (e) (Approved Draft, 1970).

Second, in his opening statement the prosecuting attorney said that the evidence would show that Johnson “is the one who fired at least five shots at three different individuals. He fired and struck Fred Arthur in the back.” Defense counsel objected: “I don’t believe that statement can be proved.” In fact the statement was substantially proved, there being testimony that Johnson fired as many as four shots in the cours? of the filling-station robbery.

The case falls within our recent observations in Foots v. State, 258 Ark. 507, 528 S.W. 2d 135 (1975): “It frequently happens that an attorney, in good faith, goes too far in telling the jury what he expects the testimony to show. Obviously a mistrial cannot be declared every time an opening statement is challenged by the other side.” Here there is no suggestion that the prosecutor acted in bad faith, nor was there even a request that the jury be told that opening statements are not evidence. Thus the objection was rightly overruled.

Third, there is no merit in the argument that the State should not have been allowed to cross-examine Johnson about whether he had committed robbery upon an earlier occasion, such proof being pertinent to the witness’s credibility. Ballew v. State, 246 Ark. 1191, 441 S.W. 2d 453 (1969). There was no request that the court limit the evidence to the issue of credibility alone; so the court’s failure to so limit the issue is not before us. Amos v. State, 209 Ark. 55, 189 S.W. 2d 611 (1945).

Fourth, it is argued that the trial court, in allowing credit for pretrial jail time, should have treated that period of confinement just as if Johnson had been confined in the penitentiary, with an attendant accumulation of credit for “good time.” That argument was rejected in West v. State, 257 Ark. 582, 518 S.W. 2d 497 (1975), and we find no reason to disturb that holding.

Affirmed.


text:
    Ronnie L. MITCHELL v. STATE of Arkansas
    CR 75-114
    528 S.W. 2d 368
    Opinion delivered October 6, 1975

      Harold L. Hall, Public Defender, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Gary Isbell, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

In July of 1974 the appellant was charged by information with having committed robbery on April 20, 1972, at a grocery store in Little Rock. The trial court, hearing the case without a jury, found the appellant guilty and imposed a five-year sentence. The appellant questions the sufficiency of the evidence and the trial court’s refusal to grant a continuance.

Upon the first point, the grocery store was run by Burl Elder and his wife. Mrs. Elder testified that Mitchell and another man, armed with pistols, entered the store at about 1:20 p.m., held up the couple, and took money and a carton of cigarettes. Mrs. Elder identified Mitchell in court and testified that she had picked out his picture at the police station two or three weeks after the robbery and that she had also identified him in a line-up in October of 1974. The testimony of this witness is sufficient proof to support the conviction.

As to the motion for a continuance, Officer Bates testified that he showed Mrs. Elder a number of photographs, but he didn’t believe there was a line-up with Mitchell in it. On cross-examination the officer said that he did not have his investigative file with him. He had looked for it on the morning of the trial, but the case had become inactive, “and they have changed the whole system down there.” Officer Bates said that the police file might show if there had been a lineup, but it would not show Mitchell in a line-up. Mitchell denied that he had ever been in a line-up at the Little Rock police station. After both sides had rested the court overruled defense counsel’s motion for a week’s continuance “to give the defendant and his attorney and the Little Rock Police Department an opportunity to locate the police Tile in this cause.”

The granting of a continuance is discretionary. In Jackson v. State, 245 Ark. 331, 432 S.W. 2d 876 (1968), we found no abuse of discretion in the court’s refusal to continue the case when the defense investigation had not been pursued with diligence. In the case at bar the trial was held two years and eight months after the offense (Mitchell having been out of the state), giving rise to a possibility that the police file might not be readily available. There is no showing that defense counsel made any inquiry about the file before the trial.

It is even more significant that no search for the file is shown to have been made after the trial. Although a motion for a new trial is no longer required in criminal cases, such a motion is recognized by the statute and extends the time for filing notice of appeal. Ark. Stat. Ann. § 43-2704 (Supp. 1973). Thus defense counsel actually had much more than the requested one week within which to search for the police file. As the matter stands, we have no assurance either that the missing file can be found or that it contains any information helpful to the defense. Under the circumstances we are unwilling to order a new trial.

Affirmed.

Byrd, J., concurs.


text:
    Marcell Albius BARNES v. STATE of Arkansas
    CR 75-79
    528 S.W. 2d 370
    Opinion delivered October 6, 1975

      Don Langston, Public Defender, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Alston Jennings Jr., Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Marcel Barnes was found guilty of robbery with a firearm and sentenced to eight years’ imprisonment. In this appeal, he argues eight points for reversal. Since we find reversible error in the circuit court’s partial denial of his request that he be permitted to conduct his own trial and his concomitant attempt to reject the services of the public defender, we discuss that point first.

Appellant was charged on August 15, 1974. When arraigned on August 29, 1974, he assured the circuit judge that he would obtain counsel, and his trial was set for September 24. Again on September 12, he advised the court that he was still trying to hire an attorney and requested a continuance which was granted with a strong admonition to Barnes not to let the matter “drift along”. Trial was then set for October 22 and on October 10, when the circuit judge made inquiry of Barnes, he stated that he had employed J. W. Whitehead as his attorney. A motion for continuance was filed on behalf of Barnes by Whitehead and the trial reset for November 19. Later Whitehead’s partner, Patrick D. O’Rourke, was associated as one of Barnes’ attorneys. On November 18, Barnes made oral motions to dismiss these attorneys and for a further continuance to obtain another attorney, both of which were granted. On January 3, 1975, the circuit judge discovered that Barnes still had not employed another attorney. Up until this point, Barnes had rejected all offers of the court to appoint counsel but he then agreed to accept representation by the public defender, with the right to employ additional counsel.

Trial was had on February 4. On that morning, Barnes moved that he be permitted to represent himself at the trial. He stated that he had been “lied to” and “deceived” by everyone, including the public defender, but his explanation as to how the public defender had deceived him was vague, to say the least. The trial judge examined Barnes on the basic rules of evidence and trial procedure and appropriately found that he knew nothing about them and was not qualified to represent himself. The judge, feeling that he had a duty to protect the right of Barnes to a fair trial by due process of law, warned him that he would be under the same restrictions that a lawyer would but finally held that Barnes would be allowed to make an opening statement, conduct voir dire examination of prospective jurors, and make a closing argument, but not to examine witnesses. Barnes vehemently protested against the public defender having anything to do with the case and insisted on being allowed to examine the witnesses, claiming a constitutional right to do so, but the circuit judge refused to change his ruling.

Art. 2, § 10 of the Arkansas Constitution provides that an accused in a criminal prosecution shall enjoy the right to be heard by himself and his counsel. Our own cases have clearly recognized the right of a defendant under our constitution to conduct his own defense in a criminal trial, whether for felony or misdemeanor, if he elects to do so. Wimberly v. State, 214 Ark. 930, 218 S.W. 2d 730; Williams v. State, 153 Ark. 289, 239 S.W. 1065; Phillips v. State, 162 Ark. 541, 258 S.W. 403; Williams v. State, 163 Ark. 623, 260 S.W. 721; Slaughter v. State, 240 Ark. 471, 400 S.W. 2d 267; Childs v. State, 243 Ark. 62, 418 S.W. 2d 793.

The question was first treated in this state more than 50 years ago in Williams v. State, 153 Ark. 289, 239 S.W. 1065, where the accused sought and was granted permission to conduct his own defense, after the court had offered to appoint counsel to defend him. There, speaking through the late great Justice Frank G. Smith, this court said:

The Constitution gives one accused of crime the right to appear by himself and his counsel; but the services of an attorney cannot be forced upon him. Article 2, § 10. Const. 1874. He has the right, if he so elects, to conduct his own defense, but he does not thereby become absolved from the duty of observing the rules of practice designed to promote the orderly administration of the law. *****

In that case the primary question before the court was whether the appellate court would review questions raised in a motion for new trial, where no objection had been made during the course of the trial. The right to self-representation was more directly involved less than two years later in Phillips v. State, supra. There it was held that an accused could not complain that he was not represented by counsel where his retained counsel, through a misunderstanding, did not appear, and the defendant rejected the appointment of counsel. This court then said:

This court has held that the constitutional guaranty of the right of the defendant in a criminal case to be heard in his own defense by himself and counsel is for the benefit of the accused and that the accused may at his option decline to have counsel appointed to represent him and conduct his own case. Williams v. State, 153 Ark. 289, 239 S.W. 1065.
In a case note to 17 ALR 266, it is said that it is universally held that a defendant in a criminal case who is sui juris and mentally competent may conduct his defense in person without the assistance of counsel. To the same effect, see case note to Ann. Cas. 1913C, at pag" 739. Numerous cases are cited in the notes to support the holding.

In Slaughter, followed in Childs, we held that the right to counsel in a criminal trial was a personal one, which could be waived, either at the pretrial stage or at trial. The only qualification on this right ever recognized by us is that an accused’s waiver of his right to counsel be knowingly and intelligently made. See Childs v. State, supra; Slaughter v. State, supra; Phillips v. State, supra.

Even if our own constitution and cases did not control, while this case was pending on appeal, the U.S. Supreme Court removed all do bt about the existence of a federal constitutional right of a defendant in a state criminal trial to self-representation under the Sixth Amendment to the U.S. Constitution, as made applicable to the states by the Fourteenth Amendment, so long as he voluntarily and intelligently elects to do so. See Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975). In that case, it was made clear that forcing a defendant against his will to accept a state-appointed public defender and denying his request to conduct his defense was reversible error. The factual background is strikingly similar to this case.

The state’s efforts to distinguish Faretta in its brief filed three weeks after that decision was rendered, are inapt. Although Barnes did not make his desire to defend himself known to the court until the morning of the trial, in contrast to Faretta’s having declared his desire weeks in advance, there is no language in Faretta that would lend any significance to such a distinction. The U.S. Supreme Court said that it had concluded that a state may not constitutionally hail a person into its criminal courts and there force a lawyer upon him when he insists that he wants to conduct his own defense. The only qualification that we can find in that opinion is that the defendant’s election to proceed without counsel must be voluntarily and intelligently made. This record is devoid of anything indicative of involuntariness in Barnes’ election.

Even though we might agree with the trial court, the public defender, our attorney general, and the dissenters in Faretta that such an election is pure folly and that only confusion can result, the test whether the election has been intelligently made is not the wisdom of the decision or its effect upon expeditious administration of justice. It is only necessary that a defendant be aware of the dangers and disadvantages of self-representation so the record will establish that the defendant knows what he is doing and his choice is made “with eyes open”. His technical legal knowledge is totally irrelevant in the assessment of his knowing exercise of the right to defend himself. The record here clearly discloses that the circuit judge pointed out to the defendant his lack of knowledge of procedures and rules of evidence and the hazards attendant upon his choice. Barnes’ request was not refused because it was not knowingly and intelligently made. It was refused in an effort to protect Barnes from his ignorance as to rules of evidence and procedures in presenting evidence.

Our own decision, as well as those cited in Faretta, have clearly pointed to its result. See also, Minor v. United States, 375 F. 2d 170 (8 Cir., 1967). It is interesting to note that the majority in Faretta read Art. 2 § 10 as explicitly conferring the right of self-representation. We have consistently done so, too.

We find the limitations on the right enumerated by the Court of Appeals of New York appropriate and consistent with our own decisions and with Faretta. In People v. McIntyre, 36 N.Y. 2d 10, 324 N.E. 2d 322 (1974), which antedated the decision in Faretta but came after it was argued, that court said:

A defendant in a criminal case may invoke the right to defend pro se provided: (1) the request is unequivocal and timely asserted, (2) there has been a knowing and intelligent waiver of the right to counsel, and (3) the defendant has not engaged in conduct which would prevent the fair and orderly exposition of the issues.

Here the request was definitely unequivocal. It was timely because it was made before the trial commenced. See McIntyre; Minor v. U.S., 375 F. 2d 170 (8 Cir., 1967); Williams v. State, 153 Ark. 289, 239 S.W. 1065; Phillips v. State, 162 Ark. 541, 258 S.W. 403; Williams v. State, 163 Ark. 623, 260 S.W. 721. Had the trial proceeded prior to the request, it may not have been timely. See Mosby v. State, 249 Ark. 17, 457 S.W. 2d 836; Williams v. State, 16 S.W. 816.

The test whether waiver of the assistance of counsel is intelligently made has been frequently applied. Of course, such a waiver is not intelligently made if the accused is not pientally capable of acting for himself. Williams v. State, 163 Ark. 623, 260 S.W. 721. Otherwise, the determination in each case must depend upon the particular facts and circumstances surrounding it. Swagger v. State, 227 Ark. 45, 296 S.W. 2d 204; Jackson v. State, 249 Ark. 653, 460 S.W. 2d 319. Even a minor who is mildly defective mentally may knowingly and intelligently waive his right to counsel, if he understands the situation and questions propounded to him on the subject. Cox v. State, 240 Ark. 911, 405 S.W. 2d 937. See also, Jackson v. State, supra. All that is required is that the accused have full knowledge or adequate warning concerning his rights and a clear intent to relinquish them. Franklin v. State, 251 Ark. 223, 471 S.W. 2d 760; Jackson v. State, supra.

This record shows clearly that Barnes was well informed and advised of his rights and that he deliberately and persistently stated his election to conduct the trial without counsel. There is nothing to indicate that he was mentally incompetent or defective in any way or that he had, or intended to, engage in disruptive conduct. We are not concerned with the wisdom of his decision. The judgment here must be reversed for failure to permit Barnes to conduct his own defense.

This brings us to a consideration of those points for reversal which are likely to arise upon a retrial. Assuming that appellant’s arrest was illegal, as he asserts, we are convinced that the court did not err in refusing to suppress the testimony of Sylvia Rush, the victim of the robbery at a liquor store identifying him as the robber. The only evidence of identification at the trial was that made by her in court. The evidence that her in-court identification of Barnes was not tainted by any pretrial lineup or showup identification clearly supports the denial of Barnes’ motion to suppress her testimony.

At a pretrial hearing on appellant’s motion to require a showing of probable cause for his arrest and to suppress Mrs. Rush’s identification testimony she positively identified Barnes as the robber. She said that Barnes had been in the liquor store some two weeks after the robbery and had questioned her about the robbery and her ability to describe the robber. She denied having seen him after the robbery except on this occasion and at the lineup, but said she had seen him at another liquor store where she was sometimes employed.

At this hearing, Barnes admitted being at the liquor store where Mrs. Rush worked on the occasion she said he appeared after the robbery. At the trial, she said that the robber was just across the counter from her when she was robbed and that she had seen him twice previously at the other liquor store and on the subsequent occasion when he questioned her about the robbery. It was brought out on her cross-examination that she had said that another man the police brought in was not the robber, even though he was about the same height and weight as the robber and wearing a shirt similar to that worn by him. We find no indication that her in-court identification was tainted by the lineup.

There was error in the admission of testimony about the circumstances of Barnes’ arrest. It was made more than two weeks after the crime at a motel, which was not Barnes’ place of residence. We find nothing of any probative value on the question of guilt or innocence in this testimony. This evidence was totally irrelevant. See Stuart v. State, 222 Ark. 102, 257 S.W. 2d 372.

There was no error in denial of a mistrial because of questions propounded to Barnes on cross-examination. The prosecuting attorney asked Barnes if he had not been guilty of possession of marijuana on June 23, 1973, and he answered negatively. When the prosecuting attorney asked, “And during the arrest you were guilty of flushing it down the commode when the officers attempted to place you under arrest?” he also answered negatively. When the public defender objected to the form of the question because it referred to an arrest, the circuit judge promptly and positively instructed the jury to disregard the question as asked and not to consider it as evidence in its deliberations. After the judge permitted the prosecuting attorney to rephrase the question, he again asked Barnes if he had not tried to flush the marijuana down the commode. An objection was promptly sustained and appellant never answered this question. No motion for mistrial or for admonition was made at this time.

Appellant’s argument that his motion for directed verdict should have been granted is actually based upon a contention that the testimony of Sylvia Rush was discredited and the rather odd argument that his own conflicting testimony overrides hers. Of course the credibility of the witness was a matter for the jury’s consideration. We can say that the testimony of a witness should be disregarded only when it is physically impossible, or that there is no reasonable probability that his version is correct. See Baldwin v. Wingfield, 191 Ark. 129, 85 S.W. 2d 689. Where the testimony is conflicting, this court does not pass upon the credibility of the witnesses and.has.no right to disregard the testimony of any witness after the jury has given it full credence, at least where, as here, it cannot be said with assurance that it was inherently improbable, physically impossible or so clearly unbelievable that reasonable minds could not differ thereon. King v. State, 194 Ark. 157, 106 S.W. 2d 582; Linebaugh v. State, 192 Ark. 1178, 97 S.W. 2d 61.

Another point urged by appellant is that the court erred in giving an instruction covering the statute relating to punishment for robbery with a firearm. See Ark. Stat. Ann. § 43-2336 (Supp. 1973). It seems from a reading of his brief that the argument advanced is that there is confusion in administering the statute in the trial courts, as illustrated in our decisions, that our decisions have added to the confusion and hence the statute is unconstitutional as a violation of due process because it is vague and indefinite. This unique argument is unsupported by citations of precedent. Furthermore, appellant does no more than give citations to our decisions which he says are illustrative of the confusion.

In Johnson v. State, 249 Ark. 208, 458 S.W. 2d 409, we held that the trial judge could not add an additional term of years to the sentence fixed by the jury upon his finding from the evidence that a firearm was used and that the accused must be informed from the information or indictment that he is charged with use of a firearm. In Redding v. State, 254 Ark. 317, 493 S.W. 2d 116, we held that the factual issue as to use of a firearm must be resolved by the jury, unless a jury trial is waived, in which case the issue is determined by the trial judge. In Roach v. State, 255 Ark. 773, 503 S.W. 2d 467, we held that there was no double jeopardy or violation of due process in a jury’s enhancement of a sentence both on account of the accused’s being a habitual offender and on account of his use of a firearm. In Cotton v. State, 256 Ark. 527, 508 S.W. 2d 738, we reiterated that the use of a firearm must be charged in the information and that, even though the jury made a specific finding that a firearm was used, the jury, not the judge, must enhance the sentence on that account. In Haynie v. State, 257 Ark. 542, 518 S.W. 2d 492, we held that the enhancement of the sentence by the trial judge after an affirmative finding by the jury was not reversible error in the absence of an objection in the trial court to that procedure and that the information need not charge the use of a firearm in a separate count or paragraph.

We do not perceive any confusion and certainly not enough to justify us in classifying the statute as vague and indefinite.

We do not fully comprehend appellant’s conclusion that the statute and its application in this case constitute double jeopardy and violate due process. He does not say how this results. He does suggest that the manner of submitting the question to the jury was confusing, somehow made its verdict violative of due process, and placed him in double jeopardy. We are simply unable to follow this argument. The judge instructed the jury on the definition of robbery and the range of punishment permissible. He then stated that Barnes was charged with employing a firearm during the commission of a robbery and that, if they found from the evidence, beyond a reasonable doubt, that he did employ a firearm as a means of committing a robbery, the jury might subject him to a period of confinement, not to exceed 15 years, in addition to the period of confinement for the conviction of robbery, and that it would also run consecutively thereto. The forms of verdict were submitteed to the jury on two separate sheets of paper. One of them was headed “VERDICT AS TO ROBBERY” followed by the words “We, The Jury, find —” and a number of blank lines with a line for the signature of the foreman. The other form was identical, except that it was headed “VERDICT AS TO USE OF FIREARM IN ROBBERY”. On the first, the jury filled in the words “Marcel Alvin Barnes - Guilty and fix punishment at three years” over the signature of the foreman. On the second the words inserted over the foreman’s signature were identical, except that the punishment was fixed at five years.

We do not see how the jury could have been confused by the procedure. If Barnes was guilty of robbery, he was certainly guilty, under the state’s evidence, of using a firearm. Obviously the jury was not confused. Their assessment of the minimum punishment for the basic offense is itself an indication that they clearly understood the law and the procedure.

Since the conviction is reversed, we cannot say, with assurance, that there will be a question about credit for pretrial incarceration on retrial. The circuit judge held a hearing at the time of sentencing and denied full credit for that time. Barnes testified that he had been indigent at all times since his arrest. The judge denied credit for any time spent in jail prior to January 1, after establishing that all continuances had been granted at Barnes’ request, obviously because he felt that Barnes’ tactics had been dilatory. He may have been justified in this feeling. See Slaughter v. State, 240 Ark. 471, 400 S.W. 2d 267. If so, the court had discretion to deny credit for the delay attributable to his actions. Coleman v. State, 257 Ark. 538, 518 S.W. 2d 487. The state and victims of crime are to be considered, along with persons accused in requiring promptness in trials.

Appellant asks us to abandon our decisions upholding the exercise of discretion by the trial judge in any case, saying that they are legal gymnastics which strain legal reasoning to uphold the trial court’s discretion in denying “jail time” credit and that the “legal mess created by these cases should be cleared up.”

We hasten to point out that the statute in force at the time of Barnes’ trial clearly vests discretion in the trial judge to decide whether credit for “jail time” be given. Ark. Stat. Ann. § 43-2813 (Supp. 1973). We have not felt, and do not now feel that we are at liberty to amend or repeal this statute. We have recognized for quite some time that there are constitutional limitations on the exercise of that discretion in that “jail time” credit cannot be denied when the pretrial incarceration was due solely to the indigency of the accused. See Smith v. State, 256 Ark. 425, 508 S.W. 2d 54; Tate v. State, (Supplemental Opinion on Rehearing) 258 Ark. 138-A, 524 S.W. 2d 624 (1975); Yarbrough v. State, 257 Ark. 732, 520 S.W. 2d 227. But we have held that such credit is not required in the absence of evidence that the pretrial confinement was due to the financial inability of the accused to make the bail set by the circuit court. Ransom v. State, 257 Ark. 522, 518 S.W. 2d 490. See also, Varbrough v. State, supra. The right may be bargained away. Ray v. State, 256 Ark. 310, 509 S.W. 2d 830. It is to be credited on the sentence imposed and the sentence cannot be made retroactive to the date of the original incarceration in lieu of the credit. West v. State, 257 Ark. 582, 518 S.W. 2d 497; Harper v. State, 249 Ark. 1013, 462 S.W. 2d 847. Any confusion in appellant’s mind must arise from a failure to read decisions prior to Smith in its light and in the light of subsequent decisions.

The judgment is reversed and the cause remanded.

      In a footnote to the Faretta opinion, it is made clear that, even over the objection of a defendant, the court may appoint “standby counsel” to aid the accused if and when he requests help and to be available in case termination of self-representation becomes necessary.

      In a footnote the majority in Fare.Ua clearly recognized that self-representation may be terminated by the trial judge when a defendant deliberately engages in serious and obstructionist misconduct.


author: J. Fred Jones, Justice.

text:
    Tommy L. WILKINS v. STATE of Arkansas
    CR 75-35
    528 S.W. 2d 382
    Opinion delivered October 6, 1975

      Brown, Compton & Prewett, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Gary Isbell, Asst. Atty. Gen., for appellee.
   J. Fred Jones, Justice.

This is an appeal by Tommy L. Wilkins from an order of the Union County Circuit Court denying his petition for habeas corpus in connection with an extradition proceeding.

The facts appear as follows: On or about March 16, 1972, an automobile was stolen from an El Dorado automobile agency in Union County. The theft was reported to the El Dorado Police Department on March 18 and a description of two suspects was furnished to the police by the owner of the automobile. By matching the description with individuals known to the police department, one William D. Lang was taken into custody in Little Rock by Little Rock police officers on March 20, 1972, and was turned over to the El Dorado officers on the same day.

Lang gave a statement in which he admitted the theft of the automobile and also admitted his participation in an armed robbery in New Mexico. Lang’s statement is not in the record but he apparently implicated the appellant Wilkins because information was filed and warrants issued on March 20 charging both Lang and Wilkins with the automobile theft. Wilkins was not apprehended until March 27, 1972, when he surrendered himself to Detective Captain Monroe Taylor of the El Dorado Police Department, who served the arrest warrant on Wilkins in his attorney’s office.

Also on March 20, 1972, a criminal complaint was filed with the magistrate of Hidalgo District, New Mexico, charging Wilkins with having committed the crime of robbery and on the same date a criminal arrest warrant was issued against Tommy Wilkins. On April 7, 1972, the assistant district attorney of Hildago County, New Mexico, filed an application for extradition for Tommy Wilkins with the Governor of New Mexico. The Governor of New Mexico granted the application and on April 12 made formal request of the Governor of Arkansas that Tommy Wilkins be apprehended and delivered to the sheriff of Hidalgo County, New Mexico, for return to that state. On April 18 the Governor of Arkansas honored the requisition and ordered Tommy Wilkins delivered to the New Mexico sheriff for return to that state.

Apparently by agreement of the parties Wilkins was first tried on the charges pending against him in Arkansas. After those charges were disposed of he filed his petition for habeas corpus on November 9, 1972, in the Union County Circuit Court and it was the denial of that petition which resulted in this appeal. From the argument presented in behalf of the petition in the trial court, and from the appellant’s argument and brief on this appeal, it appears that the essence of the appellant’s contention is set out in the points he has designated as follows:

“Since the arrest warrant and its supporting affidavits upon which extradition is grounded are not based upon credible hearsay, they do not properly charge Tommy Wilkins with a crime under the law of New Mexico and he is not, therefore, subject to extradition.
It is not clear from the requisition and supporting papers that the Tommy Wilkins wanted in New Mexico is the same Tommy L. Wilkins before the court and extradition should not issue without proof of identity.”

The appellant agrees the general law pertaining to extradition to be that after the requisition has been honored by the Governor of the asylum state, the circuit court can consider a petition for habeas corpus for only two purposes, i.e., to establish the identity of the accused and to determine whether he is a fugitive, if the requisition shows facts necessary to return the fugitive. Glover v. State, 257 Ark. 241, 515 S.W. 2d 641 (1974). The appellant argues, however, that the extradition warrant issued in New Mexico was based on erroneous information; that the hearsay information upon which the warrant was issued in New Mexico was not credible hearsay and for that reason the warrant was void. Our own statute, Ark. Stat. Ann. § 43-3003 (Repl. 1964), pertaining to such affidavit provides in part as follows:

“The indictment, information, or affidavit made before the magistrate must substantially charge the person demanded with having committed a crime under the law of that state; and the copy must be authenticated by the Executive Authority making the demand, which shall be prima facie evidence of its truth.”

The affidavit on which the New Mexico warrant was issued and which is under attack on this appeal was subscribed and sworn on April 17, 1972, and appears in the record as follows:

“CHARLES C. GRAY, being of lawful age, being first duly sworn on oath deposes and says:
That information and belief on which he filed the charge of armed robbery against Defendant is as follows:
1. That on Friday, March 17, 1972, he interviewed Ida Ornelas, who was present during a robbery of the Circle H Grocery Store in Lordsburg, Hidalgo County, New Mexico, who stated to him that two male subjects came into the store; one subject had dark brown hair, a moustache, wearing dark square sun glasses, a blue shirt, about twenty years old; the second subject had blonde hair, a yellow shirt with long sleeves and also was about twenty years old. The two subjects came into the store and one went to each side of the counter; one of them grabbed the cashier and threatened her with a black knife which he held against her side. Ida Ornelas further stated that she then rang the cash register and gave the boys all the money there was in there.
2. That on March 20, 1972, I talked to Captain Monroe Taylor, El Dorado Police Department, El Dorado, Arkansas, who stated to me that William Danny Lang and Tommy Wilkins had been picked up by the Arkansas Police and had told that officer that they had robbed a grocery store in Lordsburg, Hidalgo County, New Mexico, on March 17, 1972. Captain Taylor also described the subjects to this Officer and his description matched the description of the robbers given to your Affiant by Ida Ornelas. Affiant knows of his own knowledge that no grocery store, other than the Circle H Grocery Store, was robbed in Lordsburg, Hidalgo County, New Mexico, On March 17, 1972.
3. That on March 20, 1972, your Affiant caused to be made a Criminal Complaint before Rosa Lina Salinas, Magistrate, Hidalgo County, New Mexico, charging the said Tommy Wilkins with the crime of: ‘Robbery while armed with a deadly weapon,’ in violation of 40A-16-2, N.M.S.A., 1953 Compilation, as amended, which is a felony.”

Sheriff Leroy C. McCarty also filed an affidavit setting out that on March 20 he received the warrant charging Wilkins with robbery on the complaint of Charles C. Gray, and his affidavit then states:

“That at the time the above Criminal Complaint was filed the defendant, Tommy Wilkins, was without the State of New Mexico and has not returned thereto and at the present time is detained by Captain Monroe Taylor, El Dorado Police Department, El Dorado, Arkansas, who informed your Affiant on the 21st day of March, 1972, that the said Tommy Wilkins was taken into custody upon this charge.”

The appellant contended before the circuit court, and contends on his appeal here, that the affidavit of Officer Gray is fatally defective in that Mr. Gray did not actually talk with Captain Monroe Taylor on March 20, 1972, and that in fact the appellant Wilkins was not in custody at the time the affidavit was made. The appellant contends that this affidavit of Sheriff McCarty was in error in that the appellant was not in fact detained by Captain Taylor on March 21, 1972, and that Captain Taylor did not in fact so advise Sheriff McCarty. The appellant contends that because of these discrepancies, the warrant for his arrest and the extradition proceedings emanating therefrom were invalid.

In support of his argument on his first point, the appellant points out that the New Mexico statute, N.M.S.A. § 41-23-13, Rule 14, reads as follows:

“[P]robable cause for issuance of a warrant. The showing of probable cause shall be based upon substantial evidence, which may be hearsay in whole or in part, provided there is substantial basis for believing the source of the hearsay to be credible and for believing that there is a factual basis for the information furnished.” (Appellant’s emphasis).

The appellant apparently intended New Mexico statute, N.M.S.A. § 41-23-74 (Supp. 1973), Rule 14, but we take judicial notice that these rules of criminal procedure in New Mexico were adopted by Supreme Court rule on May 3, 1972, and did not become effective until July 1, 1972. Be that as it may, we find no merit in the appellant’s contention on this point.

The New Mexico warrant was actually issued on the affidavit of Charles C. Gray and the warrant had already been issued and placed in the hands of Sheriff McCarty when Sheriff McCarty made his affidavit. Officer Gray stated in his affidavit that he talked to Captain Monroe Taylor of the El Dorado Police Department March 20, 1972, and was told that William Danny Lang and Tommy Wilkins had been “picked up by the Arkansas Police and had told that officer that they had robbed a grocery store in Lordsburg, Hidalgo County, New Mexico, on March 17, 1972.” He also stated that Captain Taylor described the subjects and the description matched the description of the robbers as described by the robbery victim. It must be remembered that it was the description of the suspects given to Captain Monroe Taylor that resulted in the larceny warrants being issued for Lang and Wilkins, and that resulted in Lang being “picked up” by Little Rock police officers in Little Rock. The affidavit of Charles C. Gray does not state that Captain Taylor “picked up” Danny Lang and Tommy Wilkins. It simply says that they were picked up by “the Arkansas Police and had told that officer that they had robbed a grocery store in Lordsburg. ...”

Most important, however, as we view the record in this case, the appellant fell far short of proving that the affidavit of Charles C. Gray was erroneous in any respect. Captain Taylor had retired as a detective from the El Dorado Police Department at the time he testified and he testified from memory refreshed by such information as was contained in the El Dorado Police file folders. Excerpts from Captain Taylor’s testimony on direct examination by appellant’s attorney appear as follows:

“Okay. Okay now, you can use any part of that you want to, [referring to police record file] Mr. Taylor, to refresh your memory because I’m going to ask you some questions and I am looking at an affidavit signed by Charles C. Gray, who is identified in this proceedings as chief of police of Lordsburg, New Mexico. Now is there anything in that file that can tell you about whether or not you’ve talked by phone to a Charles C. Gray of Lordsburg, New Mexico?
A. I don’t remember the phone conversation in general, but apparently I did. I wrote his name down here, a phone number, and this is or should be the phone number. I just don’t remember word for word what the conversation was.
* * *
Q. Do I understand you to say that you have no memory yourself or present memory of any conversation with Charles C. Gray of Lordsburg, New Mexico?
A. I just don’t remember conversation.
Q. That’s what I understand. It may have happened, you just don’t remember it?
A. That’s right.
* * *
A. I can’t positively say that I remember it, any conversation.
Q. All right. Do you remember — let me read you this, Mr. Taylor, this is an affidavit filed by Charles C. Gray who’s identified as chief of police of Lordsburg, New Mexico. This is an affidavit he signed on April 7, 1972, and in paragraph 2, I’m reading you, and listen, he says, ‘That on March 20, 1972, I talked to Captain Monroe Taylor, El Dorado Police Department, El Dorado, Arkansas, who stated to me that William Danny Lang and Tommy Wilkins had been picked up by the Arkansas Police and had told that officer that they had robbed a grocery store in Lordsburg, Hidalgo County, New Mexico, on March 17, 1972. Captain Taylor also described the subjects to this Officer and his description matched the description of the robbers given to your affiant by Ida Ornelas.’ Do you remember any of that conversation?
A. It’s just been so long, I just don’t remember it.”

Captain Monroe Taylor testified that he probably would have known Wilkins by sight had he met him on the street but that the first dealing he had with him was when he arrested him in his attorney’s office. He said that he just knew Wilkins when he saw him, and that they might have a picture of Wilkins at the police department but he does not remember whether they did or not. He said that to his knowledge he had never arrested Wilkins before he arrested him in the attorney’s office on March 27. He said he had never taken a statement from Wilkins and that Wilkins was not in custody on March 20.

On cross-examination Captain Taylor testified he recalled investigating the automobile larceny charge himself, assisted by Officer Calhoun. He testified that during the course of that investigation he obtained the descriptions of the suspects and one of the suspects was Tommy Wilkins. He said that based on his investigation and the description he had, he decided he had reasonable grounds to arrest Wilkins and also Danny Lang for automobile theft. He said he took a description from Mr. Foster, the owner of the automobile, of some suspicious people who had been on the premises and in the automobile immediately before it was missed from his premises; that he matched these descriptions with some known individuals, and that it was this “match up” with the descriptions of Mr. Lang and Mr. Wilkins that caused him to request the prosecuting attorney’s office to issue a warrant for their arrest on the charge of grand larceny. He said that on March 20, after he received information that Danny Lang was a resident of Little Rock, that information was forwarded to the Little Rock Police Department and Danny Lang was in fact arrested on that date. He said he did not remember at what point he obtained information that there had been a robbery in New Mexico, and did not remember whether he knew a warrant had been circulated at his office at that time. He then testified as follows:

“Q. I want to show you the police file again, and contained in that police file is a statement from William Danny Lang dated March 20, which we’ve all agreed is the proper and correct date that he was arrested. Do you recall this?
A. This is when I first come aware of the armed robbery.
Q. In other words you had access to and did in fact read that statement from Danny Lang?
A. Yes.
* # $
Q. All right, you did have access and you did read Danny Lang’s statement?
A. Yes.
Q. And you knew then based on his statement that a crime had been committed or apparently had been committed by his statement in New Mexico?
A. Yes.
Q. Now then after that information came to you what was done with that information?
A. The Information was relayed on to the officers that had jurisdiction over this armed robbery.
Q. Okay. Do you recall whether or not you yourself would have been the one that initiated that inquiry?
A. I’m sure I must have notified them, Beryl, but I don’t remember the conversation we had.
Q. Well, you were asked a question back on direct examination while ago. I think at this time I’d like to go. into that with you. Is it your testimony today under oath that you did not have a conversation with a person that purported himself to be Charles C. Gray, a police officer in New Mexico, or is it your testimony that you had a conversation but you do not remember all of the details of that conversation?
A. I don’t remember the conversation, period. No part of it.
Q. All right. Do you recall whether or not you got an inquiry back from the State of New Mexico?
A. Yes.
Q. All right, would this have been after the information was given to them by your department?
A. Yes.
Q. And you stated while ago that you think that you must have been the one that initiated that initial call so that they would know what information your police department had.
A. I’m sure I did.
Q. What would be your normal — what would be a normal way for you to transmit this type of information to any other jurisdiction — say in years past, what would be normal?
A. Just pick up the phone and call the officer in charge of the investigation or the —
Q. But in your department what’s been the normal — has it been the person in charge or has it been one of the other detectives?
A. Normally the person in charge.
Q. And you’re that person in charge?
A. Yes.
Q. So if a call had been initiated if you’d been following normal practice that you had used in years past, you being the officer in charge, you would more than likely have made the telephone call?
A. Yes.”

After reading the affidavit again in open court Captain Taylor testified that he could not say that any part of the affidavit, was untrue.

The case of United States v. Flood, 374 F. 2d 554 (2d Cir. 1967) was similar on its facts to the case at bar and illustrates the ordinary scope of review of an extradition warrant. The court in that case said:

“The petitioner complains that the affidavit of Deputy Sheriff Holman, attached to the extradition warrant of the Governor of Florida, was insufficient to support the information and rendered the latter invalid because it was based largely upon hearsay information and that therefore the State of New York had no power to act upon it. But, in considering the sufficiency of the extradition warrant and the papers accompanying it to qualify under Title 18 U.S.C. § 3182, it is not for the asylum state on habeas corpus to pass upon the quality, persuasiveness or weight of the evidential matter on the basis of which the Governor of Florida issued the extradition warrant, for it is solely a question of law whether on the face of the papers accompanying the warrant there was sufficient to say that a crime was ‘substantially charged’ against Vitiello under the laws of Florida and that he was alleged to be a fugitive. The warrant and attached papers in this case were unquestionably sufficient. Appleyard v. State of Massachusetts, 203 U.S. 222, 27 S. Ct. 122, 51 L. Ed. 161 (1906); In re Strauss, 197 U.S. 324, 25 S. Ct. 535, 49 L. Ed. 774 (1905); Munsey v. Clough, 196 U.S. 364, 25 S. Ct. 282, 49 L. Ed. 515 (1905).”

In the Texas case of Ex parte Powers, Tex. Cr. App., 391 S.W. 2d 413 (1965), the Texas Court said:

“In extradition cases it is held that, unless clearly void, the validity of an affidavit or indictment upon which demand for extradition is based and its sufficiency as a criminal pleading will be left to the courts of the demanding state and not of this state.”

See also Ex parte Gray, Tex. Cr. App., 426 S.W. 2d 241 (1968); Ex parte Scott, Tex. Cr. App., 446 S.W. 2d 307 (1969).

In the case of Stuart v. Johnson, Sheriff, 192 Ark. 757, 94 S.W. 2d 715 (1936), a petition for habeas corpus in an extradition proceeding was based on the allegation that the statute of limitations had run on the crime charged, and that there was a variance between the charge as set out by affidavit and the information and proof offered. In that case we said:

“Appellant argues that the charge is barred by limitations. That may be, or she may have been a fugitive so as to prevent the statute bar from attaching. At any rate that is a matter of defense which may be offered in defense of the charge, but not here.
As to the alleged variance in the charge as set out by affidavit and information and proof offered we have nothing to do. Suffice it to say there is a ‘substantial charge’ of a violation of the laws of the demanding State. Section 3, Act No. 126, supra, [Ark. Stat. Ann. § 43-3003 (Repl. 1964)].”

In recognition of our own statute, § 43-3003, supra, we adhere to the reasoning set out by the United States Supreme Court in the case of Pierce v. Creecy, 210 U.S. 387 (1908), wherein the court said:

“. . . the indictment, in order to constitute a sufficient charge of a crime to warrant interstate extradition, need show no more than that the accused was substantially charged with crime. ... If more were required it would impose upon courts, in the trial of writs of habeas corpus, the duty of a critical examination of the laws of states with whose jurisprudence and criminal procedure they can have only a general acquaintance. Such a duty would be an intolerable burden, certain to lead to errors in decision, irritable to the just pride of the states, and fruitful of miscarriage of justice. The duty ought not to be assumed unless it is plainly required by the Constitution. ...”

This reasoning is particularly applicable as to the affidavit in the case at bar since N.M.S.A. § 41-23-14, supra, is newly adopted and apparently the courts of New Mexico have yet to construe its terms.

The appellant’s second point as to his proper identity merits little discussion in the light of what we have already said. There is no evidence that the appellant had been improperly described or identified by other than his proper and only name. The Governor of Arkansas, by his act in honoring the requisition, found that appellant was a fugitive from justice. In this state of the case the rule seems to be that before the appellant would be entitled to a discharge by court order, the evidence would have to be practically conclusive in his favor. State ex rel. Lewis, Sheriff v. Allen, 194 Ark. 688, 109 S.W. 2d 952 (1937); Letwick v. State, 211 Ark. 1, 198 S.W. 2d 830 (1947). The appellant offered only the evidence that he was not in the custody of the El Dorado police on March 20, 1972, and certainly we do not consider this as evidence which is “practically conclusive in his favor.”

The judgment is affirmed.