text:
    Joseph William MASSEY et al v. W. H. ENFIELD, Judge
    CR 75-143
    531 S.W. 2d 706
    Opinion delivered January 19, 1976

      Jim H. Boyd, for appellants.

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

The three petitioners were convicted in the circuit court upon charges involving the possession of marijuana. Joseph William Massey and his wife were each sentenced to a year in jail and a $250 fine. The third petitioner, James Ray Mclnish, was sentenced to three years’ confinement in the penitentiary. Notice of appeal was filed by defense counsel.

Thereafter the three petitioners filed a declaration of indigency and a request that they be supplied with an appellate record at state expense. The declaration of indigency, which is sworn to, states that the petitioners have expended all their funds in their defense, that they are indigent, and that they are free on bond paid for by their parents, but their parents are unable and unwilling to provide further legal assistance. On August 13, 1975, the circuit court denied the request for a free record, finding that the defendants had been employed since January of 1975 and are not indigent. The petitioners then filed this application for a writ of mandamus to compel the circuit court to provide them with an appellate record at public expense.

The petition must be denied. Mandamus cannot be used to control a trial court’s discretion. We can issue the writ to require a trial judge to hear a case, but we cannot tell him how to decide it. Wirges v. Bean, Judge, 238 Ark. 104, 378 S.W. 2d 641 (1964). Hence the writ does not lie when a question of fact is presented. Mothershead v. Ponder, Chancellor, 220 Ark. 816, 250 S.W. 2d 121 (1952).

Here the record presented such a question. At their trial both Massey and Mclnish testified that they were employed. Massey was also receiving $100 a month as child support. He further stated that he and his wife had paid their rent for six months in advance from proceeds derived from the sale of a house. On the other side, the petitioners’ verified declaration of indigency merely states, as a conclusion, that they have spent their funds in their defense and are indigent. Such conclusory allegations might or might not be a sound basis for a charge of perjury if the State thought them to be false. In any event, however, the issue in the trial court was one of fact, not to be reviewed by mandamus.

Petition denied.


source: Caselaw Access Project

author: John A. Fogleman, Justice.

license: Public Domain

text:
    Theotis MAXWELL v. STATE of Arkansas
    CR 75-36
    531 S.W. 2d 468
    Opinion delivered January 19, 1976

      Robert E. Irwin, for appellant.

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

This case was tried on a capital felony murder charge. It was alleged that appellant Theotis Maxwell and one Lee Otis Harris had beaten Ellis Robb, an elderly storekeeper to death during a robbery at his store. On appeal from a sentence to life imprisonment without parole, Maxwell originally asserted only two points, both having to do with procedures pertaining to the selection of the jury which found him guilty and fixed the sentence. We find that there was substantial compliance with the requirements of the governing statute, as against the objections made by appellant.

The jury wheel was quashed on motion of appellant and his co-defendant, who was tried separately. The circuit judge discharged the commissioners who had selected the names placed in that wheel and named four new commissioners, who selected approximately 600 names for a new wheel, from which the panel of jurors for the trial of Maxwell was drawn. Appellant objected specifically to three persons whose names were included in both wheels. Appellant challenged two of these peremptorily, but the third was seated after appellant had exhausted all his peremptory challenges. Appellant did, however, object to the procedure, contending that, when the original jury wheel was quashed, the court was required to select a panel of jurors tor the trial of the particular case. Ark. Stat. Ann. § 39-214 (Supp. 1973) provides, in pertinent part:

If the trial judge sustains the challenge to the use of the names in the jury wheel or box for the drawing of trial jurors, he Shall appoint a jury commission of not less than three persons, qualified and sworn as commissioners under the requirements of this Act [§§ 39-101 — 39-108, 39-201 — 39-220], to select a sufficient number of persons possessing the qualifications of jurors as set forth in this Act §§ 39-101 — 39-108, 39-201 — 39-220], and in such numbers as the Judge shall designate, which list of persons upon being summoned shall constitute the panel of jurors for the trial of the cause. If such panel is exhausted prior to the formation of the trial jury for any reason, the commission shall be reconvened and additional names placed on the list to be summoned as special jurors in such numbers as is deemed necessary to complete the jury for the trial of the cause.

The four newly appointed jury commissioners were instructed by the circuit judge to select 600 to 625 names for jury service. It does not appear that they were told that the list would be used for any particular trial or trials. Some of them knew that a previous jury pane! had been quashed, but there was no evidence that they knew any of the names on that panel. The list prepared was sealed by the commissioners and delivered to the circuit court clerk. It was stipulated that these commissioners were not furnished a list of the names of the persons constituting the quashed jury wheel, but the names of all jurors on the panel which had been drawn from the quashed wheel, who had actually served as jurors, were included in the list of persons ineligible because of previous jury service.

It is the clear intent of the section of the statute upon which appellant Maxwell relies to leave to the discretion of the trial judge the number of persons to be selected by newly appointed jury commissioners to constitute the panel for the trial of a case after the jury wheel has been quashed. The naming of the commissioners was in compliance with the statute. It was not an abuse of discretion for the trial judge to require a list of 600 or more names in a case in which the jury was to be qualified for the death penalty. The names called to be qualified as jurors in the case were apparently drawn at random from this list and the jury chosen from 148 names so drawn. Appellant has not shown how he was prejudiced by the procedure followed, and we cannot conceive of any prejudice that might have resulted.

It does not clearly appear whether the three jurors were on the original panel drawn from the jury wheel or whether they were merely included on the master list constituting the jury wheel. At least, the objection to the juror seated was stated as being based on the fact that her name was on the panel. The matter is of no consequence, however, because there is no prohibition against selection of any particular name which may have appeared in either the wheel or the panel, nor do we know of any reason why there should be. The persons disqualified are those who have served as jurors during the preceding two years. Ark. Stat. Ann. § 39-103 (Supp. 1973).

The record does not disclose the particular ground on which the jury wheel was quashed, but, as we understand the record, it was on a basis that invalidated the entire wheel, and not just the panel drawn from it. The appearance of only three names on either the new list of 600 or on the first group drawn from it certainly is not indicative of a subversion of the process such as that condemned in Thomas v. State, 238 Ark. 201, 379 S.W. 2d 26, where, before the enactment of the Jury Wheel Act [Ark. Stat. Ann. § 39-201, et. seq. (Supp. 1973)| a panel summoned by the sheriff consisted of 32 of the 38 members of the panel which had just been quashed.

Other objections made but not originally argued by appellant have given us some concern, but we find no reversible error.

An objection was made to a search warrant for the residence in which appellant Maxwell lived because the supporting affidavit stated only the conclusions of the officer making it, without giving his basis for believing them to be true when not all of them could have been within the personal knowledge of the affiant. If this affidavit had been the only record of the evidence before the municipal judge who issued the warrant, we would have no alternative to quashing the warrant and the evidence disclosed by the search. But this is not the case. The municipal judge properly examined the affiant under oath and the questions and answers were recorded and signed by the officer. The officer testified that a person named Harris who had been arrested for the crime, had informed the officer of the description and location of clothing he had worn during the commission of the crime and the description of the clothing worn by Maxwell. He also said that Harris had told him that he had seen Maxwell hide $400 and a quantity of change between the mattresses of Maxwell’s bed and that the clothing Maxwell had worn during the commission of the crime was at Maxwell’s home. The officer testified that Maxwell’s home was the residence of his stepfather, Tolley McVey, Jr. This was the house for which the search warrant was issued and from which the incriminating evidence was seized.

Ark. Stat. Ann. § 43-205 (Supp. 1973) authorizing the issuance of search warrants is not so restrictive as to require that the finding of probable cause by the magistrate be based solely on a single affidavit originally presented. We have said that the act eliminates from consideration any oral testimony unless it is reduced to writing and accompanied by affidavit. Cockrell v. State, 256 Ark. 19, 505 S.W. 2d 204. In order to be an affidavit an instrument must ,be reduced to writing and sworn to or affirmed before some person legally authorized to administer oaths. Thompson v. Self, 197 Ark. 70, 122 S.W. 2d 182. The procedure followed here complies with the requirements of the statute. In Thompson, we quoted with approval a definition of an affidavit as “any voluntary ex parte statement reduced to writing and sworn to or affirmed before some person authorized to administer an oath or affirmation.”

Appellant argues that the reliability and credibility of the officer’s informant was not sufficiently established to support a finding of probable cause for the search based upon statements made by him to the officer. We unhesitatingly find that the mere fact that Harris’s statement was self-incriminating was an adequate basis for according reliability and credibility to the informant and a logical basis for the hearsay statements of the officer and his conclusions. Flaherty & Whipple v. State, 255 Ark. 187, 500 S.W. 2d 87. There was sufficient basis for the municipal judge’s finding of probable cause.

Appellant seems to have asserted objections to the list of jurors from which the jury was drawn on the basis of discrimination against members of the black race and people of all races under the age of 22 years. We are not favored with the makeup of the jury or the list of 148 names from which it was drawn. There was evidence from some of the commissioners that some persons aged 18, 19, 20 and 21 years were included in the list of 600. There was also testimony that the names of a number of black persons were included, and that black persons under the age of 21 years were on the list. The commissioners were properly instructed and knew that persons of the age of 18 years and over were eligible ,to serve, and that people of all races, creeds and colors should be selected by them. At least one of the commissioners was a member of the black race, had acquaintances aged 18 to 21 years who were black, and submitted the names of at least ten such persons (along with a number of names of white persons in that age group) which were included on the list.

The evidence falls far short of the quantum of proof required for the prima facie showing of discrimination in the jury selection, which would place the burden of proof on the state to show the contrary.

An oral confession by appellant was introduced. A Den-no hearing was held and the confession admitted as voluntary. At the hearing it was disclosed that:

On the morning following the crime, he was arrested at his home without a warrant and informed that the arrest was for robbery and murder. The arrest was based upon collective information gathered by the investigating officers of the Conway County Sheriff’s office and the Arkansas State Police. The confession was given by Maxwell a short time after he had signed a waiver of constitutional rights at 7:30 p.m. on the day of his arrest. Prior to the signing of the waiver, the Miranda rights had been explained to Maxwell in great detail by Sgt. Lester of the Arkansas State Police and he clearly appeared to understand. Police interrogation commenced immediately after the waiver was signed. Sgt. Lester took written notes of Maxwell’s answers. Sgt. Baker and Lt. Evans of the Arkansas State Police were present. According to Sgt. Baker, a summary of Maxwell’s statement, omitting irrelevant parts, was dictated in Baker’s presence shortly after the interview was concluded by Sgt. Lester from the notes Lester had prepared during the interview. The summary was thereafter transcribed and typed in state police headquarters.

Baker, Lester and Evans all testified during the Denno hearing. Although Maxwell later took the witness stand during the trial and controverted, not only the confession, but the testimony about its voluntariness, the testimony of the officers was not controverted at the Denno hearing in any way. Perhaps appellant’s attorney felt that there would be a tactical advantage in submitting the question to the jury without the prosecuting attorney having previously heard Maxwell’s version at the Denno hearing. At any rate, we can find no evidence at this hearing to contradict the undisputed evidence that the statements were made to the officers voluntarily and that Maxwell knowingly and intelligently waived his constitutional right to the assistance of counsel and his privilege against self-incrimination. We certainly cannot say that the trial court’s finding that the presumption of involuntariness had been overcome was clearly against the preponderance of the evidence.

There are several written motions by appellant in the record. One of them requested that the court assign three unbiased investigators to assist in the defense but to be paid by the state. This seems to have resulted in a pretrial enhancement of the fees allowed to appellant’s appointed counsel, but no other action was indicated. Another motion asked that a private psychologist be provided to test Maxwell’s mental capacity. We have heretofore sustained the denial of such requests. Hale v. State, 246 Ark. 989, 440 S.W. 2d 550; Grissom v. State, 254 Ark. 81, 491 S.W. 2d 595; Cf. Alexander v. State, 257 Ark. 343, 516 S.W. 2d 368. For the same reasons, we sustain this one. We add that a defense of insanity was not asserted and that a complete mental observation had been made by the staff of the Arkansas State Hospital.

Obviously, appellant’s objection to the sustaining of the state’s challenges for cause to jurors who would not consider the death penalty was rendered moot by the jury verdict.

The court denied a motion for mistrial based upon the fact that the victim’s daughter, who discovered his body and evidence of the robbery, disclosed that she and an employee of one of the jurors had arrived at the scene simultaneously and that he had remained at the store while she went home to better clothe herself and report the matter to her husband and until an ambulance and the officers arrived. It was established on cross-examination that she saw no one other than this employee near the scene before the officers arrived. The name of this person had not been furnished to appellant on the list of state’s witnesses requested by him. We find no abuse of discretion for the reason that, when the motion wás not made until after appellant’s attorney had cross-examined the witness about the matter, the prosecuting attorney explained that the name had not been furnished because the state did not intend to call the employee due to the fact his testimony would have been cumulative only and for the further reason that the court permitted appellant’s attorney to question the juror extensively about the possible prejudice. During this examination.in chambers, it was actually disclosed that both the person named in the testimony and the juror were among approximately 50 employees of the same corporation, and that both worked directly under the supervision of the juror’s father. The juror stated that the employee had never discussed the matter with him, and that he had not known that this employee was a witness or had anything to do with the matter. In response to the judge’s questioning, he stated that he would not give this person’s testimony any more credence than that of any other witness if he should be called as a witness by either side.

There were numerous objections to the introduction of evidence to which we have given our attention, but we find no reversible error in any of them and no purpose in discussion of most of them. Appellant objected to the introduction of a billfold found in the attic of his grandfather’s home in the execution of the search on the ground that it was not listed on the return as an item seized. Yet Sgt. Baker, who made the search, positively identified it as an item found in the search and in which he said he found $392 in currency. The contents of the billfold were listed on the return. This omission went only to the credibility of the witness and the weight to be given his testimony and not to admissibility of the evidence, and admission of the evidence was not violative of due process, since the making of the return is only a ministerial act. People v. Schmidt, 172 Colo. 285, 473 P. 2d 698 (1970); Williams v. State, 95 Okla. Cr. 131, 240 P. 2d 1132, 31 ALR 2d 851 (1952); United States v. Greene, 141 F.S. 856 (1956); Evans v. United States, 242 F. 2d 534, cert. den. 353 U.S. 976, 77 S. Ct. 1059, 1 L. Ed. 2d 1137 (1957).

We have reviewed other objections made by appellant during the course of the trial, as we do in cases where life imprisonment is imposed. We do not find any prejudicial error and see no purpose in discussing each such objection at length.

Since we find no prejudicial error the judgment is affirmed.


text:
    David Lynn GAMMEL and Eddie SPANN v. STATE of Arkansas
    CR 75-92
    531 S.W. 2d 474
    Opinion delivered January 19, 1976

      Patrick D. O’Rourke, for appellants.

      Jim Guy Tucker, Atty. Gen., by: Michael G. Epley, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Appellants Gammel and Spann were found guilty of robbery with a firearm and sentenced to imprisonment for 25 years - 15 for robbery and 10 for the use of a firearm. We find no reversible error on the five points for reversal listed by appellants and affirm. We will discuss these points in the order they are argued by appellants.

THE TRIAL COURT ERRED BY NOT CHALLENGING FOR CAUSE A JUROR WHO EXHIBITED ACTUAL BIAS DURING VOIR DIRE, THEREBY EFFECTIVELY DENYING THE DEFENDANTS THEIR RIGHT TO A FAIR AND IMPARTIAL JURY.

Appellants challenged prospective juror Faris peremptorily when the court refused their challenge for cause, and contend that they were prejudiced because they had exhausted their peremptory challenges when the last juror was accepted, because they would have otherwise peremptorily challenged him. This juror was acquainted with one of the state’s witnesses, Capí. Jim Bell of the West Memphis Police Department. When asked whether his relationship with the officer was such that he would tend to give more credence to what the officer said, Faris responded that he had known Bell to be an honest man and would tend to believe him. The circuit judge then stated that he would give an instruction on credibility of witnesses and the applicable rule on credibility and asked Faris if he would abide by that instruction and apply it to the facts. When Faris answered in the affirmative, the judge refused to allow the challenge for cause.

Either actual or implied bias is a ground for disqualification of a prospective juror. Ark. Stat. Ann. §§ 43-1919, 1920 (Repl. 1964). The determination of the existence of actual bias is a matter lying within the sound judicial discretion of the trial judge. We will not reverse the trial court’s action on challenges for actual bias in the absence of an abuse of discretion. Henslee v. State, 251 Ark. 125, 471 S.W. 2d 352; Lewis v. State, 220 Ark. 914, 251 S.W. 2d 490; Scifres v. State, 228 Ark. 486, 308 S.W. 2d 815. The challenge here does not come within the scope of permissible challenges for implied bias. See Ark. Stat. Ann. § 43-1920.

In view of the statement by Faris that he would abide by and apply the court’s instruction on the credibility of witnesses, we cannot say that there was an abuse of discretion in this instance.

THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT THE VERDICT THAT APPELLANT GAMMEL USED A FIREARM IN THE COMMISSION OF THE ROBBERY.

Appellant Gammel points out that there was no evidence that he used a firearm in the robbery and that Danny Allen Jenkins, the manager of the Nic-Nac Grocery who was robbed, testified that Gammel did not at any time exhibit a firearm. Appellants state in their brief that there was no real evidence that a firearm was used by anyone during the robbery, but we disagree. As a matter of fact, Gammel stated in his motion for new trial that “all the proof showed that only his codefendant used a weapon and that there was no proof that [Gammel] knew or acquiesced in the use of a firearm.” This concession that there was evidence to show that Spann used a firearm was fully warranted. Spann does not actually contend on this appeal that there was no evidence that he used a firearm. No useful purpose would be served by reviewing the testimony on this score.

The gist of Gammel’s argument is that the enhancement of his 15 years’ sentence by 10 years is invalid because there is not sufficient evidence that he used any firearm himself. This argument overlooks the impact of our law making an accessory who stands by, aids and assists in the commission of a felony a principal in the crime and punishable as such. See Ark. Stat. Ann. §§ 41-118, 119 (Repl. 1964).

Apparently we have not been called upon to decide this precise question where Ark. Stat. Ann. § 43-2336 (Supp. 1973) has been brought into play. There is some split of authority on the question. The New York rule is that one must personally use the firearm before he can be convicted of its use. People v. Paradiso, 248 N.Y. 123, 161 N.E. 443 (1928). We believe the California rule that an accomplice is just as guilty as his confederate who uses the firearm and is subject to the same punishment is based upon sounder reason and logic People v. Stevens, 32 Cal. App. 2d 666, 90 P. 2d 595 (1939). This is particularly so when appropriate consideration is given to a statute making an accessory who stands by, aids and assists in the crime punishable as a principal, as was the case in the state of Washington. State v. Willis, 5 Wash. App. 441, 487 P. 2d 648 (1971). Although the California court reached the same result without reliance on statutory language such as that in the Arkansas and Washington statutes, we unhesitatingly embrace the reason and result of the opinion of the Washington court in Willis.

THE STATE FAILED TO SHOW BY A PREPONDERANCE OF THE EVIDENCE' THAT AN IN-CUSTODY CONFESSION WAS VOLUNTARILY GIVEN THEREFORE ADMISSION OF TESTIMONY OF SUCH INVOLUNTARY CONFESSION WAS REVERSIBLE ERROR.

As a part of its evidence-in-chief, the state offered the testimony of James Newton Skaggs, Jr., a 17-year-old misdemeanant, who was serving a 30-day sentence in the West Memphis jail when Gammel was incarcerated. He testified that Gammel had told him of being arrested for armed robbery, saying that he (Gammel) couldn’t be identified because he had been wearing sun glasses and a hat and the lower part of his face was covered, but that he had gone in the store first and come back out and thereafter he and his friend had gone back to the store and robbed the place.

Appellant Gammel argues that this confession was obtained by the police by trickery and deceit, contending that Skaggs was placed in the cell where Gammel was incarcerated for the express purpose of eliciting a confession and that the statements attributed to Gammel were made without the warnings as to his constitutional rights required by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, 10 ALR 3d 974 (1966) and its progeny. In advancing this argument Gammel relies solely on circumstances disclosed by Skaggs, the only witness on the subject, and argues that the only reasonable inference to be drawn from these circumstances is that the alleged confession was involuntary because of the trickery and deceit involved. We do not agree.

Gammel moved in limine to suppress the statements. Skaggs testified in camera, substantially as follows:

He had served 10 or 11 days of his sentence at the time he was placed in the same two-man cell with Gammel, about 12 M on May 9, 1974. About an hour thereafter, when the two were alone in the cell, he started asking Gammel why Gammel was in jail and Gammel started in talking about it and made the incriminating statements; Skaggs had no conversation with any of the police officers before he was put in the cell; he asked Gammel “what he was in for” because that is a usual discussion when someone is brought into the jail; none of the police officers suggested that he talk to Gammel or ask Gammel what he had done; and none of them promised anything for his obtaining a statement from Gammel. Skaggs was not a trusty when he was placed in the cell with Gammel, but was made one that afternoon and allowed to go home the next morning; Skaggs had previously been kept in the “bull pen;” he never slept in the cell with Gammel, but was removed from it and returned to the “bull pen” on the same afternoon he had been placed there; he did not try to make a deal with the police in return for the information he gave them, but decided to tell them because Gammel had suggested to Skaggs that, whenever Skaggs became a trusty, he bring Gammel a hacksaw blade; Skaggs had previously been convicted of petit larceny, disorderly conduct, and possession of alcohol as a minor.

We make an independent determination of voluntariness of a confession based upon the totality of the circumstances, but do not overturn the finding of the trial court on the subject, unless it is clearly against the preponderance of the evidence. Degler v. State, 257 Ark. 388, 517 S.W. 2d 515. When we consider that none of the testimony of Skaggs is contradicted in any way by anyone and that his testimony cannot be said to be inherently improbable or demonstrably incredible, we cannot say that the finding that Gammel’s statements were not voluntary was clearly against the preponderance of the evidence. Gammel’s argument that the very fact that Skaggs was made a trusty on the next day and released before the following nightfall can lead to no conclusion except that Skaggs was an agent of the police department placed in the cell to obtain a confession is fallacious. It is at least as likely that Skaggs was brought as he said, to report the conversation when he reflected upon the request that he bring hacksaw blades to Gammel and the potential consequences to him if indeed Gammel subsequently obtained hacksaw blades from some source. Gammel did not avail himself of the opportunity to testify in camera and deny the making of this proposal or to explain how it came to be made, but freely suggests here that Skaggs could not have testified as he did if he did not know that he was about to be made a trusty. It is certainly logical to assume that the officers were pleased to have all the information they received from Skaggs and that they would favor him if possible to do so, perhaps more readily if Skaggs voluntarily gave the information. We cannot help noting that there was evidence of Gammel’s participation in the crime, other than the confession, upon which a finding of guilt might have been based. It is likely that the police officers in charge of the investigation were well aware of this before Skaggs was placed in the cell.

We do not agree with Gammel’s contention that the state could not meet its burden of overcoming the presumption that the “in-custody” confession was involuntary without calling the jail or police officers to explain why Skaggs, a misdemeanant, was put in the cell with a suspected felon and why Skaggs was released on the following day with one half his sentence unserved or explaining its failure to do so. In advancing this argument, Gammel relies upon Smith v. State, 256 Ark. 67, 505 S.W. 2d 504, but we do not find the situation comparable to that in Smith. We have held “that whenever the accused offers testimony that his confession was induced by violence, threats, coercion, or offering of reward, the burden is upon the state to produce all material witnesses who were connected with the controverted confession or give adequate explanation for the absence.” Smith v. State, 254 Ark. 538, 494 S.W. 2d 489. But in Smith (254 Ark.) it was clearly established that the holding was based upon the necessity that evidence be introduced to refute testimony of the accused or of witnesses that there had been official inducements by way of coercion, physical abuse, fear, threats, promises of reward, leniency or assistance in order to discharge its burden, because otherwise the evidence supporting the involuntariness of a controverted confession stands uncontradicted. See also, Russey v. State, 257 Ark. 570, 519 S.W. 2d 751.

We have not extended the holding of Smith (254 Ark.) beyond its specific language. We see no reason to do so. Here, there was no testimony to refute, so the rule of the Smith cases is inapplicable.

THE COURT ERRED BY NOT ORDERING A MISTRIAL AFTER IT ALLOWED A WITNESS FOR THE STATE TO TESTIFY WHAT ONE DEFENDANT SAID ABOUT ANOTHER DEFENDANT, AFTER THE COURT SPECIFICALLY INSTRUCTED THE WITNESS THAT TO SO TESTIFY WOULD BE GROUNDS FOR A MISTRIAL.

After ruling in camera that the statements of Gammel to Skaggs were volunteered and, in part, of a spontaneous nature, the circuit judge added that Skaggs would be permitted to testify only as to his conversation with Gammel but not with regard to any codefendant or other parties. The judge then instructed the witness that he could not testify about anything Gammel had to say about the codefendant or any other party and not about anything Gammel may have said about a negro male helping Gammel, or any statement he may have made about some other party helping. The judge warned Skaggs that any such testimony would be ground for a mistrial. When the witness was asked, while testifying before thejury, what Gammel had told him, Skaggs answered, “He told me that he robbed the Nic-Nac, him and some other guy — . ” Before the answer was completed, Spann’s attorney interjected an objection which was overruled. The witness then stated that Gammel said that he (Gammel) “went in first and he came back out and they both went in and they robbed the place.” Spann’s attorney again objected and his motion for a mistrial was denied.

We find no error. Skaggs did not identify Spann in any way or even mention that Gammel had described the “other guy” as a negro male. This did not constitute the kind of cross-implicating confession condemned by Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476. We have said that deletion of offending portions of a defendant’s statement referring to a codefendant would meet the Bruton test, if it could be done without prejudice to the codefendant. Byrd v. State, 251 Ark. 149, 471 S.W. 2d 350; Mosby v. State, 246 Ark. 963, 440 S.W. 2d 230. Deletion of references to the codefendant is sufficient. Miller v. State, 250 Ark. 199, 464 S.W. 2d 594. Pee also, Bailey v. U.S., 410 F. 2d 1209 (10 Cir., 1969), cert. den. 396 U.S. 933, 90 S. Ct. 276, 24 L. Ed. 2d 232. We find sufficient compliance with the Bruton rule.

Since Spann did not request that the trial judge admonish the jury relative to the testimony about “some other guy”, he is in no position to argue his complaint on appeal based on the judge’s failure to do so. Such an instruction would likely have tended to emphasize an otherwise innocuous statement. But more importantly, we find no reversible error because Gammel did testify and did deny making the statement and Spann was thereby afforded the opportunity for cross-examination. This takes the case outside the ambit of Bruton. Nelson v. O’Neil, 402 U.S. 622, 91 S. Ct. 1723, 29 L. Ed. 2d 222 (1971); Jackson v. State, 253 Ark. 1116, 491 S.W. 2d 581.

THE TRIAL COURT ERRED DENYING DEFENDANTS MOTIONS FOR A MISTRIAL, AFTER THE COURT ALLOWED THE PROSECUTING ATTORNEY TO ASK QUESTIONS OF DEFENSE WITNESS, THE SOLE PURPOSE OF THESE QUESTIONS BEING TO SHOW TO THE JURY THAT DEFENDANTS HAD CRIMINAL RECORDS OR WERE SOMEHOW INVOLVED IN CRIMINAL ACTIVITY.

Delores Johnson was called by Spann in support of his alibi defense. On direct examination she had testified that Spann had arrived at her house at 9:00 P.M. on May 8, 1974, and spent the entire night there, except for an absence of about 20 minutes’ duration after midnight. The robbery occurred about 11:00 P.M. on May 8, 1974. Her credibility and the weight to be given her testimony were important to the ultimate result of his trial. On cross-examination, the prosecuting attorney attempted to cast doubt upon the plausibility of her testimony. In the course of this examination, he asked the witness where Spann lived. Before she answered, appellants’ attorneys sought to have her answer limited to the street address and specifically asked that no reference to its being a “Half-Way House,” “Transition House” or “that type of place” be permitted. The circuit judge ruled that the witness would not be permitted to testify about prior convictions, charges or court appearances, but would be permitted to state where Spann lived. After she answered that he lived “on Peabody” at an address unknown to her, the prosecuting attorney asked her what type of place it was. Before the question was answered, appellants objected and moved for a mistrial. The objection was sustained, but the motion was denied. The prosecuting attorney then asked whether Spann was required to check in and be present at this place every night. The court sustained an objection, but denied a motion for mistrial. The motion for mistrial was renewed and denied in chambers.

Although the correctness of the trial court’s ruling on the objections is not before us, appellants do assert that the questions were intended to appeal to the jury’s prejudice against the accused, and argue that the prosecuting attorney was attempting by “sleazy tactics” to “sneak in a cheap shot at defendants” in an effort to prejudice the jury against them by introducing evidence of past crimes, and thus compelled appellants to testify. These charges are wholly unwarranted, and the record is so devoid of support for them that the propriety of stating them is questionable, to say the least.

Declaring a mistrial is an extreme remedy which should be granted only where there has been an error so prejudicial that justice could not be served by continuation of the trial. Hill v. State, 255 Ark. 720, 502 S.W. 2d 649. It should not be granted when any possible prejudice could be removed by an admonition to the jury. Russey v. State, 257 Ark. 570, 519 S.W. 2d 751. It was certainly not called for in this case. Appellants did not seek an admonition to the jury to disregard the questions or any of their implications. The witness never testified on the subject and the prosecuting attorney’s questions were not so suggestive that the place where Spann was living was a residence for persons convicted of crimes as to require the drastic remedy appellants sought.

As a matter of fact, Spann later testified that one did not have to be a convicted felon to live at the place he lived on Peabody Avenue in Memphis and that there were people living there who were not convicted felons. Gammel testified that it was a place where people stay until they get “their financial situation straight and back on their feet.” He denied, on cross-examination, that he was living there and awaiting discharge back into society on parole because of a conviction on January 24, 1974. Furthermore, Bob Walsh, Executive Director of Transitional, Inc. at 1242 Peabody, the address at which both Spann and Gammel lived on May 8, 1974, was called as a witness by the state and testified that his records showed that Spann did return to the place at 12:45 A.M. on May 9. The testimony of Spann and Gammel about their residence at the place and its character was not contradicted on either direct or cross-examination of Walsh.

Since we find no reversible error, the judgment is affirmed.

      Thc California court pointed out that, if a murder occurred during a robbery, the unarmed bandit could not be absolved, but as an aider of the actual murderer would be equally guilty and equally liable to imposition of the extreme penalty. This is also the law in Arkansas. Dorsey v. State, 219 Ark. 101, 240 S.W. 2d 30, cert. den. 342 U.S. 851, 72 S. Ct. 80, 96 L. Ed. 642.


author: J. Fred Jones, Justice. Conley Byrd, Justice,

text:
    STATE of Arkansas v. William KNIGHT
    CR 75-125
    533 S.W. 2d 488
    Opinion delivered January 19, 1976
    [Rehearing denied March 29, 1976.]

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

      Rubens & Rubens, by: Kent J. Rubens, for appellee.
   J. Fred Jones, Justice.

This is an appeal by the State of Arkansas from an order in a circuit court judgment granting the appellee-defendant’s motion for discharge and dismissal of felony charges against him, because he had been denied a speedy trial.

On July 5, 1974, the appellee William Knight was charged on information filed by the prosecuting attorney in Crittenden County with the crime of first degree murder. He was arraigned on September 4, 1974, at which time he entered a plea of not guilty. Knight was unable to make bond so he remained in jail while awaiting trial. For various reasons not germane to the issues here, and really not fully disclosed by the record, Knight’s case did not come to trial until February 24, 1975.

When appellee Knight’s case came to trial on February 24, 1975, he filed a motion to dismiss in compliance with Ark. Stat. Ann. § 43-1708 (Repl. 1964) because he was not given a speedy trial. Knight’s case proceeded to jury trial on February 24, 1975. He was found guilty of murder in the second degree, and the jury imposed a sentence of 15 years in the Arkansas Department of Correction. On February 26, 1975, Knight filed a motion to postpone sentencing under the jury verdict until his motion to dismiss for want of a speedy trial could be heard and passed on by the trial court. Sentencing was postponed pursuant to Knight’s motion and on May 15, 1975, a hearing was held on the motion to dismiss. On June 9, 1975, the trial court entered the judgment order appealed from as follows:

“Now on this the 24th day of February, 1975, this cause comes on to be heard. The Plaintiff appears by David Burnett, Prosecuting Attorney within and for the Second Judicial District of Arkansas, and Joe Rogers, Deputy Prosecuting Attorney for Crittenden County, Arkansas. The Defendant appears in person and with his attorney, Kent J. Rubens. The Defendant, having previously waived a formal arraignment and enter[ed] his plea of NOT GUILTY to the charge of murder in the first degree, announced ready for trial subject to the Court’s ruling on Defendant’s Motion for Dismissal. A jury of twelve (12) from the regular panel of petit jurors was impaneled and sworn to try the cause, and, having heard the evidence, the instructions of the Court, and argument of counsel, retired to consider its verdict of guilty of the lesser included crime of murder in the second degree and fixed his punishment for a term of fifteen (15) years in the State Penitentiary.
The Court informed the Defendant of the nature of the charge, his plea thereon and the verdict of the jury thereon, and asked if Defendant had any legal cause to show why judgment should not be pronounced against him, and the Defendant again argued that the Court consider his Motion for Dismissal for Failure to Grant Him a Speedy Trial.
Sentencing was postponed, and a hearing was held to determine the merit of Defendant’s Motion, said hearing was held on May 15, 1975, with the Defendant appearing in person and by and through his attorney, Kent J. Rubens, and the State appearing by and through its attorney, David Burnett, Prosecuting Attorney within and for the Second Judicial District of Arkansas, together with Joe Rogers and James C. Hale, Jr., Deputy Prosecuting Attorneys for Crittenden County, Arkansas. The Court heard the evidence of the parties together with their witnesses, the arguments of counsel and the Brief submitted by Defendant.
On Monday, June 9, 1975, the Court by letter advised Defendant’s attorney that the Motion should be granted and that the charge against the Defendant should be dismissed with prejudice and the verdict of the jury set aside.
IT IS, THEREFORE, BY THE COURT CONSIDERED AND ORDERED that the verdict of the jury should be and the same is now hereby set aside; that the Defendant, William Lee Knight, be discharged from the custody of the Sheriff of Crittenden County, Arkansas, and the charge of murder in the first degree filed against him dismissed with prejudice and costs shall be taxed to the State.
ENTERED this 30th day of June, 1975.”

On its appeal to this court the state contends that the ruling of the trial court was clearly erroneous both legally and factually. The appellee contends, however, that the' appeal should be dismissed for failure of the state to comply with statutory requirements pertaining to appeals by the state,. We shall first consider the appellee’s contentions.

Ark. Stat. Ann. § 43-2720 (Repl. 1964) provides for appeal by the state and appears as follows:

“Where an appeal on behalf of the State is desired, the prosecuting attorney shall pray the appeal during the term at which the decision is rendered, whereupon the clerk shall immediately make a transcript of the record and transmit the same to the attorney general, or deliver the transcript to the prosecuting attorney, to be transmitted by him. If the attorney general, on inspecting the record, is satisfied that error has been committed to the prejudice of the State, and upon which it is important to the correct and uniform administration of the criminal law that the Supreme Court should decide, he may by lodging the transcript in the clerk’s office of the Supreme Court within sixty [60] days after the decision, take the appeal.”

The appellee argues that strict compliance with the terms of the statute is jurisdictional and that under its terms the attorney “must endorse on the transcript a direction to the clerk of the Supreme Court to file same,” citing State v. Cox, 29 Ark. 115. We find no language in the statute requiring the attorney general to endorse on the transcript any direction to the clerk of this court. Neither do we find such requirement in State v. Cox, supra. The Cox case presented a unique situation. In that case this court found from the exceptions taken by the prosecuting attorney that the trial court had excluded all evidence that seemed to have been offered by the state and, consequently, the defendant was found not guilty. This court in Cox then said:

“How, the case got into this court does not appear. There is no record entry in the transcript before us, showing that an appeal was prayed by the state, in the circuit court, nor does the file mark of the clerk of this court show who filed the transcript in his office. It appears simply to have been filed, and the cause docketed and submitted.

This court in (’ox then recited the statutory requirement, that where an appeal on behalf of the state is desired, .the prosecuting attorney shall pray the appeal during the term at which the decision is rendered; whereupon, the clerk shall make a transcript of the record and transmit it to the attorney general or give it to the prosecuting attorney to be by him transmitted to the attorney general. This court then recited that portion of the statute providing that if the attorney general upon inspection of the record is satisfied that error had been committed to the prejudice of the state, etc., “he may, by lodging the transcript in the clerk’s office of the Supreme Court within sixty days [60] days after the decision, take the appeal.”

The prosecuting attorney in the case at bar did file notice of appeal on July 7, 1975, and designated for. inclusion in the record on appeal “the complete record and all proceedings and evidence in the action.” The transcript was filed with the clerk of this court on August 4, 1975. There is nothing in the record to indicate that the transcript was filed by anyone other than the attorney general and we deem it unnecessary for the record to show whether it was submitted to the attorney general by the clerk of the trial court or by the prosecuting attorney.

This court takes judicial notice of motions filed with its clerk and this court’s actions pertaining thereto. Both the appellee-defendant and the state requested and were granted extensions of time for filing briefs. On September 10, 1975, the state,“by and through Jim Guy Tucker, Attorney General,” filed a motion for extension of time to file appellant’s brief and the motion was granted by this court. On November 26, 1975, the attorney general filed an additional motion for extension of time in which to file appellant’s reply brief and we granted that motion also. Furthermore, the docket sheet in the clerk’s office of this court recites “Attorney General — State of Arkansas — Filed August 4, 1975.” We conclude that the state of Arkansas sufficiently complied with the statutory requirements in perfecting the state’s appeal to this court, and that this court has jurisdiction in connection therewith.

The appellee also contends and argues that the state failed to transmit the complete record on appeal in compliance with the prosecuting attorney’s notice of appeal where he stated: “The plaintiff designated for inclusion in the record on the Appeal, the complete record and all proceedings and evidence in this action.” Apparently the appellee is contending that the state should have filed the entire record of the trial which resulted in the appellee’s conviction of murder in the second degree. We do not agree with the appellee in this contention. There is no appeal before this court pertaining to the appellee’s conviction. The matter before us on this appeal pertains to the appellee’s discharge and not to his conviction. We conclude that the record before us is entirely adequate and sufficient for our determination of the question here involved.

The appell e also argues that “the record discloses that no exceptions w^. e made to the ruling of the court nor was a motion for ne^ trial made.” He argues that both of these procedural steps were necessary in order for this court to review the matter. A new trial is defined by statute, Ark. Stat. Ann. § 43-2201 Repl. 1964), as “the re-examination of an issue of fact in the same court by another jury after a verdict has been given.” The purpose of a motion for a new trial is to call the alleged errors occurring during the trial to the attention of the court, and to afford an opportunity for correction by granting a new trial if the errors may not otherwise be corrected. Nordin v. State, 143 Ark. 364, 220 S.W. 473 (1920); State v. Wilhite, 211 Ark. 1065, 204 S.W. 2d 562 (1947). In the case at bar there is no allegation or contention that error occurred in the trial of the appellee. The contention is that error occurred in granting the appellee’s motion for discharge, thereby voiding the trial and the jury verdict.

The appellee erroneously concludes that no part of Act 333 of 1971 is available to the state on this appeal. It is true that § 43-2720, supra, provides the only manner by which the state may perfect an appeal to this court, and it is also true that Act 333 of 1971, Ark. Stat. Ann. § 43-2720.1 (Supp. 1973), provides that the manner in which the state or other prosecuting party may appeal in a criminal case is not altered thereby. Act 333, Ark. Stat. Ann. § 43-2725.1 (Supp. 1973), provides that exceptions and motions for new trial are no longer necessary to preserve an error for review on appeal and we are of the opinion that this section applies to the state the same as to individuals, and that this section does not conflict with or change the manner by which the state may appeal as set forth in § 43-2720, supra.

Furthermore, the error complained of by the state in the case at bar appears on the face of the record before us. The terms of the trial courts are fixed by statute and the record is clear as to when the appellee was informed against and when he was brought to trial. The record is also clear that he remained in jail between those dates.

Turning now to the appellant’s contentions, the only question before us is whether the trial court erred in granting the appellee’s motion for discharge on the ground that he had not been given a speedy trial under the provisions of Ark. Stat. Ann. § 43-1708 (Repl. 1964), which reads as follows:

“If any person indicted for any offense, and committed to prison, shall not be brought to trial before the end of the second term of the court having jurisdiction of the offense, which shall be held after the finding of such indictment, he shall be discharged so far as relates to the offense for which he was committed, unless the delay shall happen on the application of the prisoner.”

Thus, it is seen that § 43-1708 pertains to an accused who is incarcerated in jail. The next section of the statute, § 43-1709, pertains to an accused who is free on bond, and provides for discharge if not brought to trial by the end of the third term of the court having jurisdiction of the offense, which shall be held after the finding of such indictment. Then the following section, § 43-1710, provides as follows:

“Nothing in the two preceding sections shall be so construed, as to discharge any person who may have been indicted for any criminal offense, on account of the failure of the judge to hold any term of the court, or for the want of time to try such person at any term of the court.”

It is conceded that the appellee-defendant remained in the Crittenden County jail during the entire time his case was pending. Consequently, his motion for discharge was governed by § 43-1708, supra, so the precise question before us on this appeal is whether the appellee was brought to trial before the end of the second term of the court having jurisdiction of the offense, which was held after the filing of the information charging him with the crime of murder. It would appear that any additional question that might have arisen under § 43-1710, supra, was rendered more or less inapplicable to this case because the trial court’s act in granting the motion to discharge would indicate that the delay in bringing the appellee to trial was not “on account of the failure of the judge to hold any term of court, or for the want of time to try such person at any term of court.” The statutory terms of the three divisions of the Crittenden County Circuit Court are set out in Ark. Stat. Ann. § 22-310 (Supp. 1973) as follows:

“Terms, 1st division (criminal), on the 3rd Monday in February and the 3rd Monday in September; 2nd division (civil), on the 4th Monday in January and the 3rd Monday in November; 3rd division (civil), on the 2nd Monday in May and the 4th Monday in June.”

The appellee Knight was informed against on July 5, 1974, which was within the February, 1974, term of the first division and within the January, 1974, term of the second division and within the June, 1974, term’ofthe third division. He was brought to trial on February 24, 1975, which was during the February, 1975, term of the, first division (the third Monday falling on February 17). He was brought to trial during the January, 1975, term of the second division and during the June, 1974, term of the third division. The 1974 February term of the First division in which the information was filed ended on the third Monday in September, 1974, which date constituted the end of the term of the first division in which the information was filed, and constituted the beginning of the September, 1974, term which was the first term of the first division after the information was filed. This September, 1974, term expired on the third Monday in February, 1975, when the second term after the information was filed commenced. Consequently, the appellee was put to trial well within the second term of the first division court after the information was filed against him. The 1974 January term of the second division, and the one in which the information was filed, terminated on the third Monday in November, 1974, when the first term of that division after the information was filed commenced. This November, 1974, term continued until the fourth Monday in January, 1975, when the second term after the information was filed commenced. Consequently, the appellee was brought to trial well within the second term of that division after the information was filed. The information was filed on July 5, 1974, which was within the June, 1974, term of the third division. This term extended to the second Monday in May, 1975, when the first term after the information was filed commenced. Consequently, the appellee was brought to trial during the same term of the third division in which the information was filed against him. It is obvious, therefore, that two full terms of any one of the three divisions had not expired between the time the information was filed and the appellee was brought to trial.

Apparently the trial court was confused by our holdings in Breedlove v. State, 225 Ark. 170, 280 S.W. 2d 224, as related to Stewart v. State, 13 Ark. 720, cited in Breedlove as the leading case on the subject. It further appears that our decision in Gardner v. State, 252 Ark. 828, 481 S.W. 2d 342, having to do with the application of the statutes to multi-division circuit courts, may have added to the confusion. We shall now attempt to clarify our views and reconcile any apparent conflict in those decisions. The statutes on the subject have remained, for all practical purposes, the same since Stewart v. State, supra, was decided in 1853. The opinion in Stewart contains a thorough discussion of many facets of that case not here involved, but Stewart remained in jail until brought to trial and he sought discharge under § 179 of the statute (now Ark. Stat. Ann. § 43-1708 [Repl. 1964]), and in connection with the right of the accused under that statute this court said:

“[Ijn our opinion, from the phraseology of section 179 [now Ark. Stat. Ann. § 43-1708], the unavoidable construction of it is, that, in order to entitle the accused to be discharged for such cause; there must be, on the part of the State, a failure of three terms to bring him to trial, that is to say, at the end of the second term which shall be held after the finding of the indictment.”

Now, in Breedlove v. State, supra, Breedlove, the accused, was free on bond during the pendency of his case and he appealed from an order overruling his motion to dismiss the charges against him because he had not been brought to trial within three terms after the filing of the information. After reciting the provisions of § 43-1709, supra, as applicable to the case, this court in Breedlove v. State stated as follows:

“The leading case on the subject is Stewart v. State, 13 Ark. 720. There it was held that thé term at which the defendant is indicted is to be counted as one of the three terms mentioned in the statute. In other words, the statute is applicable where the defendant is not brought to trial at the end of the second term held after the term during which the indictment was filed.”

After the above reference to our holding in Stewart v. State, supra, this court in Breedlove then recited that the continuances in Breedlove resulting in the delay complained of, were brought about by Breedlove’s own motions or acquiescence. The apparently inconsistant, and perhaps confusing, language employed in Breedlove, apparently arises from the fact that in the Stewart case, Stewart was in jail while awaiting trial and Breedlove was free on bond. Stewart’s rights to discharge arose under § 43-1708 and the statute would have become operative as to him at the end of two full terms following the term in which he was indicted.. It was necessary under Stewart and under § 43-1708 for three terms to expire before he would have been entitled to discharge under the statute but, “that is to say, at the end of the second term which shall be held after the finding of the indictment.” In other words, the first of the three terms, the one in which the accused is indicted, must expire and then two more terms, the first and second ones after the one in which the indictment is returned, must expire before the accused is entitled to discharge under § 43-1708. Breedlove was free on bond while awaiting trial and the provisions of § 43-1708 did not apply to him at all. His case fell under the provisions of § 43-1709 and that statute would have been applicable to him had he not been brought to trial by the end of three full terms following the one in which the information was filed. In Stewart we further said:

“. . . for a prisoner to be entitled to his discharge for want of prosecution, he must have placed himself on the record in the attitude of demanding a trial, or at least of resisting postponements.”

Since our decision in Breedlove turned on the fact that the delay was brought about by the action of the accused, we apparently overlooked, or failed to distinguish in the opinion, the difference in § 43-1708 applicable in Stewart and § 43-1709 applicable in Breedlove. Now in Gardner v. State, supra, we recognized the complications brought about by the multiple divisions of the circuit courts which have occurred since Steivart and in which one accused of a felony could be tried in any one of the separate divisions, either criminal or civil, such divisions having different and overlapping terms. In Gardner we said:

“[W]e are of the opinion, and therefore hold, that the expiration of the terms within the meaning of the above statutes applies to terms in any one of the divisions in which the accused could be tried in a multi-division court and does not apply to the combined overlapping terms of the combined divisions.”

We are at a loss to state our opinion with additional clarity but in the case at bar if Mr. Knight had not been brought to trial by the end of two court terms following the one in which he was informed upon, either in the first division of the circuit court, or the second civil division of the circuit court, or the third division of the circuit court, he would have been entitled to seek relief under the provisions of § 43-1708, supra, and the court would not have erred in granting the appellee’s request under the facts and evidence of record in this rase.

To summarize, we are of the opinion and so hold, that if an accused remains in jail and is not brought to trial, without fault on his part, by the end of the second term of any one division, either criminal or civil, of the circuit court following the term in which the indictment is returned or information is filed, then he is entitled to seek discharge under the provisions of § 43-1708 subject, of course, to other statutory provisions relating to excusable delay. The same rule applies under § 43-1709 to one accused of crime and free on bond if not brought to trial by the end of the third term of court following the one in which he is charged by indictment or information.

The judgment of the trial court must be reversed and this cause remanded for further proceedings not inconsistent with this opinion.

The judgment is reversed and cause remanded.

Byrd and Holt, JJ., dissent.

Conley Byrd, Justice,

dissenting. I dissent for the following reasons:

1. Appeals by the State in criminal cases are not favored and are subject to the restrictions placed on them by Ark. Stat. Ann. § 43-2720 (Repl. 1964), which provides:

“Where an appeal on behalf of the State is desired, the prosecuting attorney shall pray the appeal during the term at which the decision is rendered, whereupon the clerk shall immediately make a transcript of the record and transmit the same to the attorney general, or deliver the transcript to the prosecuting attorney, to be transmitted by him. If the attorney general, on inspecting the record, is satisfied that error has been committed to the prejudice of the State, and upon which it is important to the correct and uniform administration of the criminal law that the Supreme Court should decide, he may, by lodging the transcript in the clerk’s office of the Supreme Court, within sixty [60] days after the decision, take the appeal.”

The prosecuting attorney did not follow the foregoing statute in the following respects:

A. There is no prayer for appeal in the record. The prosecuting attorney only gave a notice of appeal in accordance with Act 333 of 1971. Since § 13 of Act 333 of 1971 provides that “the manner in which the state or other prosecuting party may appeal in the criminal case is not altered by this act, ” we then must look to the prior law to determine what is meant by “a prayer for appeal.” The answer is provided in the Criminal Code § 327 [Ark. Stat. Ann. § 43-2710 (Repl. 1964)] as follows:

“First. The appeal must be prayed during the term at which the judgment is rendered, and the prayer noted on the record in the circuit court.”

B. Ark. Stat. Ann. § 43-2720, supra, contemplates that the prosecuting attorney will furnish a complete record. Although the prosecuting attorney, while erroneously acting pursuant to Act 333 of 1971, designated the complete record, the complete record is not before the court. The record contains only the reporter’s transcript of the proceedings on the motion to dismiss.

After the prosecuting attorney has properly prayed an appeal and delivered the complete record to the attorney general, an obligation is imposed on the attorney general to inspect the record to satisfy himself that error has been committed to the prejudice of the State and that the correction of the error is important to the “uniform administration of the criminal law.” C. R. Stevenson in his treatise, Supreme Court Procedure 167 (1956), states: “If the Attorney General desires to take an appeal, he must endorse on the transcript a direction to the clerk of the Supreme Court to file.”

I submit that without the complete record from which to make his inspection, the Attorney General has no basis for making a decision that the appeal by the State is necessary for the “uniform administration of the criminal law.” It would be most embarrassing to all officials involved in this appeal if the prosecution of appellee should subsequently be dismissed for insufficient evidence to sustain the conviction.

Also, I note that the United States Supreme Court has held that the Sixth Amendment guarantee of a speedy trial in the United States Constitution is applicable to the several states, Klopfer v. North Carolina, 386 U.S. 213, 87 S. Ct. 988, 18 L. Ed. 2d 1 (1967), Smith v. Hooey, 393 U.S. 374, 89 S. Ct. 575, 21 L. Ed. 2d 607 (1969) and Dickey v. Florida, 398 U.S. 30, 90 S. Ct. 1564, 26 L. Ed. 2d 26 (1970), and although they have laid down no definite standard of what constitutes a speedy trial in terms of days, months or years, they have left no doubt that delay which results in prejudice to the accused will constitute the denial of a speedy trial. See Dickey v. Florida, supra. Consequently, without the complete record, which may show the deaths of witnesses during the delays involved herein, I don’t see how the Attorney General could be in a position to determine that the alleged erroneous ruling of the trial court is necessary to the “uniform administration of the criminal law.” Furthermore, we are in no position to determine that the trial court committed reversible error.

2. Next, I submit that the indictment against appellee should be dismissed for lack of a speedy trial under the Constitution of Arkansas, art. 2, § 10 which provides that “In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial. . . .”

The record shows the following dates relative to this case:

May 13, 1974 3rd Div. Circuit Court commenced its May term.

May 20, 1974 Appellee was arrested and placed in jail.

June 24, 1974 3rd Div. Circuit Court commenced its June term.

July 5, 1974 Charges were filed against appellee,

Sept. 16, 1974 1st Div. Circuit Court commenced its September term of court.

Nov. 18, 1974 2nd Div. Circuit Court commenced its November term.

Dec. 9, 1974 Special Div. of Circuit Court was held by appointment of Judge Richard Adkisson.

Dec. 18, 1974 Special Div. of Circuit Court was held by appointment of Judge Richard Adkisson.

Jan. 27, 1975 2nd Div. Circuit Court commenced its January term.

Feb. 17, 1975 1 st Div. Circuit Court commenced its February term.

Feb. 24, 1975 Appellee was put to trial.

Thus, from the foregoing dates, we can see that appellee was held in jail for all but one week of the May term of the Third Division Circuit Court. He was held in jail for all of the September term of First Division of the Circuit Court. He was held in jail for all of the November Term of the Second Division Circuit Court. He was also held in jail during all of the term of the Special Division of the Circuit Court held by the assignment of Judge Richard Adkisson. During all of this time that appellee remained in jail and in addition to the completed terms of courts, above mentioned, the Third Division of the Circuit Court commenced its June 1974 term and the Second Division commenced its January 1975 term of court — in other words, Circuit Court was held at least six times while appellee was languishing in jail and before the commencement of the February 14, 1975 term of court at which he was tried. Even then his trial did not commence un til one week later.

In Gardner v. State, 252 Ark. 828, 481 S.W. 2d 342 (1972), we had before us a delay in a prosecution for more than seven months. We there said:

“The accused in this case remained in jail for more than seven months simply awaiting trial for a determination of whether he was innocent or guilty. It is difficult indeed to consider a trial after such a delay as a speedy trial in a three division circuit court in Arkansas where the accused may be tried in any one of the three divisions by the simple process of transferring the case from one docket to another under § 22-322,12, supra. On the assumption, however, that the trial court failed to recognize its jurisdiction and authority under § 22-322.12, supra, or misinterpreted the purpose and intent of our per curiam, supra, we hold that the trial court did not abuse its discretion in denying the motion to dismiss in this case, so the judgment in this case is affirmed.”

In view of our language in the Gardner case, it would appear that the trial court, in view of the authority and jurisdiction of the several Divisions of the Crittenden Circuit Court under Ark. Stat. Ann. § 22-322.12, was certainly warranted in finding that appellee had been denied a speedy trial — after all, appellee was held in jail after the term at which he was arrested for three full terms of the several divisions of the Crittenden Circuit Court without being put to trial.

For the foregoing reasons, I respectfully dissent.

Holt, J., joins in this dissent.


author: Conley Byrd, Justice. John A. Fogleman, Justice,

text:
    Eddie L. QUEARY v. STATE of Arkansas
    CR 75-155
    531 S.W. 2d 485
    Opinion delivered January 19, 1976

      Jim 11. Boyd, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Jack T. Lassiter, Asst. Atty. Gen., for appellee.
   Conley Byrd, Justice.

Appellant Eddie L. Queary was convicted, upon a jury verdict, of burglary and grand larceny. For reversal he makes a number of contentions.

The record shows that the residence of Mr. Phillip Cain of Kingston, Arkansas, was broken into and that items totaling approximately $300 in value were removed. Upon investigation the officers found two sets of tracks leading from and to the residence of appellant to the Cain residence. The boots that appellant was wearing matched one set of the tracks found by the officers. Lowery Garten, who was living with appellant, pleaded guilty to entering Cain’s residence and taking the property. Garten also showed the sheriff where he had stored the property. We find that there was substantial evidence to support the jury’s verdict.

During cross-examination of Sheriff Ralph Baker the following occurred:

“Q. Okay. Now, other than those two dollars, to your knowledge, Queary — Eddie Queary hadn’t had possession of all of this stuff; is that right? To your actual knowledge? Have you actually seen him with it?
A. Seen him with this stuff here?
Q. Yes, sir.
A. No, sir.
Q. Did you ever go into the attic and get it?
A. No, sir. It was his partner there, Garten.
MR. BOYD: Your Honor, I know probably nothing was intended, but we’d like to instruct the jury or that the Court do so, that the term ‘partner’ should be stricken from their minds.
THE COURT: Overruled.”

The law is that when a witness, in answer to a proper question, gives a nonresponsive answer stating matter that is incompetent and inadmissible as evidence, the trial court, on motion, should strike out the answer or so much of it as is improper, and direct the jury to disregard it as evidence in the case. See Page v. State, 88 Ark. 237, 114 S.W. 248 (1908), 58 Am. Jur. Witnesses § 575 (1948) and 98 C.J.S. Witnesses § 356 (1957). The State, in recognition of the law on the subject, acknowledges that the sheriff’s reference to appellant as Mr. Garten’s “partner” was improper but contends that it was harmless error. We cannot agree that this reference to appellant was harmless error. Under our law, an error in the admission of incompetent testimony is presumed to be prejudicial in the absence of an affirmative showing to the contrary, Connelly v. State, 232 Ark. 297, 335 S.W. 2d 723 (1960). Since the only practical, factual issue before the jury was whether appellant was Mr. Garten’s partner in the crime, we cannot say that the record affirmatively shows the sheriff’s characterization of appellant as Garten’s partner was not prejudicial.

Appellant raises a number of other issues, but since they are not apt to arise on a new trial in the same context, we need not consider them.

For the error indicated, the judgment is reversed and remanded.

George Rose Smith, Fogleman and Jones, JJ., dissent.

John A. Fogleman, Justice,

dissenting. I consider the error on which this case is reversed to be harmless. As I understand the majority opinion, that error is the failure of the trial court to strike an unresponsive answer by the sheriff as a witness. The word “partner” was used by the sheriff in telling who went into the attic of a house and brought down some stolen property. It was applied to a codefendant of appellant to describe the codefendant as appellant’s partner. The word, in its common acception and use can mean more than a “partner-in-crime.” It may mean a colleague or associate. Webster’s Third New International Dictionary; Webster’s New International Dictionary, Second Edition; The Random House Dictionary of the English Language; The American Heritage Dictionary of the English Language. It is synonymous with friend, companion, fellow, comrade, familiar. Rodale, The Synonym Finder, Special DeLuxe Ed. (1961). It is used to designate various relationships such as companions, fellow workers, or close friends. Zuback v. Bakmaz, 346 Fa. 279, 29 A. 2d 473 (1943).

Admittedly the two men lived together. Two sets of tracks were followed by the officers for a quarter-mile from the burglarized residence to the place where the two codefendants lived together. Boots taken off Queary matched one set of tracks. There was another muddy set of boots at the house when the officers went there. The sheriff saw the tracks and fitted the boots worn by Queary to one set of tracks. He went to the house where Queary and his codefendant lived. The codefendant was sitting in the house barefooted. The sheriff then went with the codefendant to the residence of Queary’s brother-in-law. The codefendant went into the attic of that house with the sheriff and handed the stolen property down through the ceiling.

The codefendant admitted the burglary and tried to shoulder the entire blame, but could not explain how there could have been two sets of tracks. He claimed that he had been wearing Queary’s boots when he burglarized the house, because they were better than his own. He said that it was possible that two dollars he gave Queary to buy gasoline after he returned was a part of the money he stole from the house. The codefendant had not previously told the sheriff about taking Queary’s boots before going to the burglarized premises.

The circumstances pointing to Queary’s guilt as disclosed by the evidence preceding this unresponsive remark were indeed strong and it is difficult to see how the jury could have given much consideration to this chance remark. Whatever connotation the witness or the jury put on the word, it added nothing to what the jury already knew. The sheriff would not have arrested Queary if he did not think he was a participant in the crime and everyone in the courtroom knew that from the evidence. When the entire record is viewed on appeal, Í would say that the chances that this statement was prejudicial were so remote as to put the matter beyond reasonable doubt. It seems to me that we could say with great assurance that any error was harmless.

I am authorized to state that Mr. Justice George Rose Smith and Mr. Justice Jones join in this opinion.


author: Elsijane T. Roy, Justice. Conley Byrd, Justice,

text:
    Walter SKELTON, Director for Revenues, Arkansas Department of Finance and Administration v. FEDERAL EXPRESS CORPORATION
    75-130
    531 S.W. 2d 941
    Opinion delivered January 19, 1976
    [Rehearing denied Feb. 23, 1976.]

      James R. Cooper, Robert G. Brockman, James R. Eads, Jr., and Harlin R. Hodnelt, for appellant.

      Frank L. Watson and Paul F. Henson, for appellee.
   Elsijane T. Roy, Justice.

This is an action for declaratory judgment, and the parties have stipulated to most of the facts. Appellee, Federal Express Corporation, is an interstate air carrier of small packages and freight, organized under the laws of the State of Delaware with its principal place of business in Tennessee, and licensed in Arkansas as a foreign corporation.

One relevant section of the stipulation reads as follows:

On February 14, 1975, the Department of Finance and Administration audited Plaintiff’s personal property which consisted of eighteen Falcon jet aircraft and that these jet aircraft were located on the premises of Little Rock Airmotive, Inc.; that the aircraft were delivered to the Plaintiff in states and countries other than Arkansas; that the said aircraft were transported in interstate commerce to Little Rock, Arkansas, where each aircraft received necessary and substantial modifications to its body and structure before it could be used in Plaintiff’s interstate air carrier operations; that Plaintiff’s property was not in Arkansas for profit; the property in question had not been placed in service in Arkansas.

Other relevant facts stipulated are that:

Appellee has never performed any intrastate business in Arkansas; there is no dispute as to the amount of the assessment or rate of taxation; and the aircraft, while in Arkansas, received extensive modifications, and as each aircraft was completed, it was delivered to appellee’s principal place of business in Memphis, Tennessee. Production time for the modification process was approximately fifty days for each aircraft.

The parties agreed that the issues involved in this controversy should be determined by declaratory judgment.

Roger Frock, general manager and senior vice president of Federal Express Corporation, testified that when the aircraft were purchased and initially brought into Arkansas they were not involved in carrying freight, in most cases they were brought in by the seller under a ferry package, with very rudimentary equipment in them, just enough to allow them to safely fly into Arkansas, but they were not equipped, could not have handled freight. During the retention of the aircraft in Arkansas, Federal Express Corporation did exercise ownership rights or power incident to the ownership of the aircraft and contracted with Little Rock Airmotive for extensive modification of each aircraft. He testified Federal Express Corporation’s route goes from Memphis to Little Rock to Houston to San Antonio, so it is very likely that some of those eighteen aircraft did make stops in Little Rock over the course of being in revenue service. Mr. Frock stated the airplanes were not used in interstate operations prior to modification.

The trial court held that the tax assessment was illegal and should be set aside. From the court’s decree comes this appeal.

The Arkansas Compensating Tax Act provides in Ark. Stat. Ann. § 84-3105(a) (Repl. 1960) the following:

(a) There is hereby levied and there shall be collected from every person in this State a tax of excise for the privilege of storing, using or consuming, within |the State, any article of tangible personal property, after] the passage and approval of this Act [§§ 84-3101 — 84-3128], purchased for storage, use or consumption in this State at the rate of three per centum (3%) of the sales price of such property. This tax will not apply with respect to the storage, use or consumption of any article of tangible personal property purchased, produced or manufactured outside this State until the transportation of such article has finally come to rest within this State or until such article has become commingled with the general mass of property of this State. This tax shall apply to the use, storage or consumption of every article of tangible personal property, except as hereinafter provided, irrespective of whether the article or similar articles are manufactured within the State of Arkansas or are available for purchase within the State of Arkansas, and irrespective of any other condition.

For the aircraft to be subject to the tax they must have been purchased for use or storage in the State and to have finally come to rest within the State.

The stipulation and the testimony clearly reflect that at the time of the purchase appellee intended to bring the aircraft into the State for extensive modification.

Appellee strongly contends that the aircraft were not purchased for use in the State but for use in its interstate operations. This contention is found to be without merit in of the definition of the term “use”:

The term “use” means and includes the exercise of any right or power over tangible personal property incident to the ownership or control of that property, except that it shall not include the sale of that property in the regular course of business. Ark. Stat. Ann. § 84-3104(c) (Repl. 1960).

Retention of the aircraft within the State of Arkansas alone constitutes sufficient use to support the appellant’s assessment. Flying Tiger Line v. State Board of Equalization, 157 Cal. App. 2d 85, 320 P. 2d 552 (1958); Pacific Telephone and Telegraph Company v. Gallagher, 306 U.S. 182, 59 S. Ct. 396, 83 L. Ed. 595 (1939). In addition to the aircraft being retained in Arkansas for a period of approximately 50 days appellee contracted with an Arkansas firm for modifications to be carried out on the planes. This is an exercise of a right over the aircraft incident to the ownership or control of same. Exercise of these ownership rights constitutes a taxable “use” of the aircraft within the State.

The aircraft were also stored in the State of Arkansas. In Ark. Stat. Ann. § 84-3104(b) (Repl. 1960), the term “storage” is defined as “ . . . any keeping or retention in this State of tangible personal property purchased from a vendor for. any purpose, except sale or subsequent use solely outside this State.” The aircraft were retained in the State for approximately 50 days, and their subsequent use is not solely outside this State since appellee makes deliveries and maintains a freight stop in Little Rock.

Regardless of the ultimate use of the aircraft the use and storage in the case at bar are taxable intrastate events, separate and apart from interstate commerce.

In Flying Tiger Line v. State Board of Equalization, supra, the aircraft which were the subject of this controversy were to become instrumentalities of interstate commerce after they had been flown into California. The court upheld the use tax upon the aircraft because of their use and/or storage prior to becoming instrumentalities of interstate commerce and stated:

We think there was a taxable moment when the former [speaking of the seven aircraft] had reached the end of their interstate transportation and had not begun to be consumed in interstate operation. At that moment, the tax on storage and use — retention and exercise of the right of ownership, respectively — was effective.

The language used here is almost identical with that used in Pacific Telephone and Telegraph Company v. Gallagher, supra, wherein the United States Supreme Court determined that retention of certain tangible personal property in California constituted an exercise of a right of ownership which subjected it to taxation even though the ultimate use of the property was in the company’s interstate system.

As to the question of whether the aircraft “finally came to rest” within this jurisdiction after having been shipped via interstate commerce to Arkansas, numerous cases uphold state taxation of articles of tangible personal property during interruption in interstate shipment if the interruption is not to “facilitate interstate shipment or to save the property from the dangers of its journey.” If the interruption does not meet the above test the courts have concluded that interstate shipment has ceased and the goods are within the taxable jurisdiction of the state where they are found.

The United States Supreme Court cases on this issue are reviewed in Calvert v. Zanes-Ewalt Warehouse, Inc., 502 S.W. 2d 689 (Texas) (1973). In Calvert the court said:

* * * Any interruption of the movement of commodities at an intermediate point between origin and final destination which is not incidental to the transportation or the use of the means of transportation (or being so incidental, is used or extended for the purposes of the owner not incidental to the transportation or the means used therefor) breaks the continuity in transit and subjects the shipment to local taxation at the point of interruption.

The extensive modification of the jets in Arkansas was in no way “incidental” to the transportation of the aircraft (the aircraft were capable of being flown directly to Memphis), but it was for the purposes of the owner. So here the aircraft left the stream of commerce and “finally came to rest” in Arkansas and consequently were subject to taxation at this point. General Oil Co. v. Crane, 209 U.S. 211, 28 S. Ct. 475, 52 L. Ed. 754 (1908), and Bacon v. Ill., 227 U.S. 504, 33 S. Ct. 299, 57 L. Ed. 615 (1913).

Concerning appellant’s contention of double taxation, Arkansas has enacted the Multistate Tax Compact, Ark. Stat. Ann. §§ 84-4101 — 84-4106 (Supp. 1973), which provides in part:

Each purchaser liable for a use tax on tangible personal property shall be entitled to full credit for the combined amount or amounts of legally imposed sales or use taxes paid by him with respect to the same property to another state and any subdivision thereof.

In light of this tax compact, the State of Tennessee at the appropriate time will make a proper determination of the tax credit due appellee herein. Therefore, we find appellee is not subjected to double taxation because of the Arkansas assessment.

Furthermore, since the aircraft were not instrumentalities of interstate commerce nor were they in the stream of commerce at the time of taxation, the commerce clause of the Federal Constitution has not in any manner or respect been violated by the appellant’s assessment of the tax on the aircraft.

Reversed.

Jones and Byrd, JJ., dissent.

Conley Byrd, Justice,

dissenting. I disagree with the majority’s interpretation of Ark. Stat. Ann. § 84-3105(a) (Repl. 1960). As interpreted it adds SI 8,500 to the cost of any modifications that Little Rock Airmotive, Inc., makes to any such Falcon Jets even though the costs of the modification may be SI,000 ór less. I doubt that Little Rock Airmotive can long stay in business with that kind of tollgate at its front door.

The stipulated facts show that Federal Express Corporation is homebased in Memphis, Tennessee where it is engaged in interstate commerce.. The stipulated facts also show that the aircraft here were stopped off enroute to Memphis to modify or fabricate the planes to meet their intended use when they arrive in Memphis. Thus, if the planes are taxable under the facts here it would not make any difference to this state’s ability to tax, that the planes were first flown to Memphis and then returned.

Under the majority’s interpretation of the statute, supra, any plane flown into Arkansas for fabrication from anyone of the five states that does not have a gross receipts or use tax will be subject to use tax by Arkansas. Thus, as I view the matter the tax here levied is purely and simply a tax levied upon commerce. Little Rock Airmotive could not exist without such commerce — that is the very nature of its business and there are obviously not enough locally owned aircraft to keep it in business.

For the reasons stated, I respectfully dissent.

Jones, J., joins in this dissent.


author: Elsijane T. Roy, Justice.

text:
    Robert Maurice GORDON v. STATE of Arkansas
    CR 75-138
    529 S.W. 2d 330
    Opinion delivered January 19, 1976

      McArthur, Loftin & Wilson, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Terry Kirkpatrick, Asst. Atty. Gen., for appellee.
   Elsijane T. Roy, Justice.

On October 19, 1974, Officer John Sparks, a criminal investigator, and another investigator, both with the narcotics section of the Arkansas State Police, and a federal drug enforcement agent were traveling on Interstate Highway 30 west of Hope. They were conducting a general traffic check in this area. At approximately 11:30 p.m. they noticed a white Chevrolet van being driven erratically and the officers stopped it. Appellant then got out and showed Sparks his driver’s license. No traffic violation was disclosed but while examining appellant’s license Sparks detected a strong odor of marijuana about appellant. During the questioning of appellant another vehicle containing two representatives of the United States Border Patrol and a State policeman joined the group. The law enforcement officials . looked inside the van with a flashlight and discovered what appeared to be marijuana seeds. Appellant was then arrested for possession of marijuana and advised of his rights. Sparks entered the van to obtain the seeds, then the van was removed to a service station and a search warrant obtained for further examination of the vehicle. The ensuing search resulted in the discovery of over 800 pounds of marijuana.

Appellant’s first assignment of error is that the court improperly refused to grant his motion to suppress illegally seized evidence and the court’s failure to prevent the introduction of said evidence at his trial.

Appellant contends that the search which produced the evidence used to convict him was not based on “probable cause” and thus is violative of Fourth Amendment proscriptions against unreasonable search and seizure. It has been recognized that where officers have reasonable cause to believe that contraband is being unlawfully transported in a vehicle then such vehicle may be the object of a warrantless search. Carroll v. U.S., 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 543 (1925); Moore v. State, 244 Ark. 1197, 429 S.W. 2d 122 (1968), cert. denied 393 U.S. 1063, 89 S. Ct. 714, 21 L. Ed. 2d 705 (1969). A determination of the soundness of concluding that probable cause existed to conduct a search is to be made “ ... in the light of the particular situation and with account taken of all the circumstances. ” Brinegar v. U.S., 338 U.S. 160, 69 S. Ct. 1302, 93 L. Ed. 1879 (1949). The facts, or “circumstances”, of the instant case support the conclusion that there existed probable cause to conduct the very limited warrantless search of the vehicle that was conducted immediately subsequent to stopping appellant. Arresting Officer Sparks testified that appellant had an odor of marijuana about his person, a fact which apparently alerted him to the possibility that appellant’s vehicle may have contained a quantity of the substance. That this odor is sufficient to arouse suspicion and thus provide the underpinning for a showing of probable cause to conduct a search was recognized in People v. Neuman, 14 Cal. App. 3d 246, 92 Cal. Rptr. 205 (1971), vacated for other reasons 95 Cal. Rptr. 12, 484 P. 2d 1356 (1971). See also Moore, supra, and Anderson v. State, 256 Ark. 912, 511 S.W. 2d 151 (1974). While it was recognized in Newman that a stop for a traffic violation, without more, did not justify a search of the vehicle, the court stated:

The odor of burning marijuana recognized by the officers afforded probable cause to believe that the car contained contraband, and that its occupants were the probable offenders. (Citations omitted)

The examination of the interior of the vehicle, conducted at 11:30 p.m., revealed marijuana seeds on the floorboard. The search involved concerned only a visual scrutiny of the van interior, and the marijuana seeds were openly visible. The seeds that were detected came within the “plain view” of the arresting officer and, as was recognized in Harris v. U.S., 390 U.S. 234, 88 S. Ct. 992, 19 L. Ed. 2d 1067 (1968), cannot be considered the product of an illegal search. Moreover, the fact that the seeds were only discernible by use of a flashlight does not invalidate the propriety of the search. In U.S. v. Johnson, 506 F. 2d 674 (8th Cir. 1974), cert. denied 421 U.S. 917, 95 S. Ct. 1579, 43 L. Ed. 2d 784 (1975), a case also involving the use of a flashlight, the court observed that:

The fact that the contents of the vehicle may not have been visible without the use of artificial illumination does not preclude such observation from application of the “plain view” doctrine. (Citations omitted)

If follows that the limited search in this instance suffers no constitutional defect nor was the seizure of the seeds an unpermitted outgrowth thereof. Needless td say, the constitutionality of the later search and seizure which netted the 800 odd pounds of marijuana is not open to question since probable cause existed for the initial intrusion and a valid search warrant was procured before further search was made of the van.

Appellant next contends that the testimony of Officer Sparks as to the odor and seeds should have been excluded at trial below since no foundation was laid qualifying Sparks as an expert witness. Officer Sparks disclaimed any expertise except the experience that he had gained as a result of two years with the narcotics section of the Arkansas State Police. Sparks’ testimony would be more accurately described as being a non-expert offering' opinion evidence. We have approved opinion evidence offered by ordinary witnesses, derived from observation, in those situations where from the nature of the subject matter the facts cannot otherwise be presented to the jury. Miller v. State, 94 Ark. 538, 128 S.W. 353 (1910). In the instant case only by explaining the circumstances of the search and seizure could the jury be adequately apprised of the basis for probable cause of the search. Descriptions involving odor and appearance are uniquely personal to the observer and explanations based thereupon must rely on the observer’s opinion.

Furthermore, questions going to the competence of a witness are largely discretionary with the trial judge and are not ordinarily reviewable on appeal unless so clearly in error as to constitute an abuse of discretion. Farmers Equipment Co. v. Miller, 252 Ark. 1092, 482 S.W. 2d 805 (1972); Lee v. Crittenden County, 216 Ark. 480, 226 S.W. 2d 79 (1950). No such error is here evident and the testimony was properly received.

Appellant’s final contention is that the court erred in allowing Officer Sparks’ testimony concerning other drug related crimes in order to establish a value for the contraband seized in the instant case. The appellant argues that Sparks’ testimony impugns appellant’s character and is likely to have an inflammatory effect on the jury. We do not find this contention meritorious. The testimony was not offered to reflect on appellant’s character but was introduced to qualify Officer Sparks to give an opinion on the large quantity of marijuana seized. In Williams v. State, 129 Ga. App. 103, 198 S.E. 2d 683 (1973), an officer with several years experience in narcotics work testified as to the value of drugs seized, and the Georgia court observed:

* * * While the value of the drugs is not a necessary ingredient which the State must prove, it can be helpful to the jury in the light of other circumstances in the evidence to know whether the quantity of drugs was inconsequential or substantial.

Appellant was not implicated in any of these crimes, hence the jury could not be inflamed.

Finding no reversible error, the case is affirmed.


author: PER CURIAM

text:
    STATE of Arkansas v. Marvin ALEXANDER
    CR 75-190
    531 S.W. 2d 707
    January 19, 1976
    [Rehearing denied Feb. 17, 1976.]
   PER CURIAM

On September 4, 1974, information was filed against Marvin Alexander in the Crittenden County Circuit Court charging him with first degree murder committed on August 10, 1974. Alexander was released on bond while awaiting trial and on February 26, 1975, he filed a motion for discharge because he had not been given a speedy trial. By judgment entered September 1, 1975, and filed on September 5, 1975, the trial court recited that Alexander had filed a motion for dismissal under Ark. Stat. Ann. § 43-1709 (Repl. 1964). The trial court found that Alexander was arrested on August 10, 1974; that information was filed against him on September. 4, 1974, and that the defendant was admitted to bond in the sum of $15,000. The trial court judgment then recited as follows:

“The Court further finds that the defendant was held to bail and was not brought to trial before the end of the third term of Court, which was held after the finding of the indictment, or the filing of the information against said defendant as provided in Arkansas Statute 43-1708, supra, and the Court finds that the Motion of the defendant to dismiss with prejudice for lack of a speedy trial is hereby granted.
IT IS THEREFORE, BY THE COURT, CONSIDERED, ORDERED AND ADJUDGED that the charges pending against the defendant, Marvin Alexander, in the Circuit Court of Crittenden County, Arkansas, Criminal Division, cause number CR-74-295, be and same are hereby dismissed with prejudice and costs of this action are hereby taxed to the State.
ENTERED this 1st day of Sept., 1975.”

On September 15, 1975, the prosecuting attorney filed notice of appeal to this court. The transcript was filed with the clerk of this court on November 10, 1975, and on December 4, 1975, Alexander filed his motion to dismiss the appeal for failure of the attorney general to file the appeal within the time provided by statute.

Ark. Stat. Ann. § 43-2720 (Repl. 1964) provides as follows:

“Where an appeal on behalf of the State is desired, the prosecuting attorney shall pray the appeal during the term at which the decision is rendered, whereupon the clerk shall immediately make a transcript of the record and transmit the same to the attorney general, or deliver the transcript to the prosecuting attorney, to be transmitted by him. If the attorney general, on inspecting the record, is satisfied that error has been committed to the prejudice of the State, and upon which it is important to the correct and uniform administration of the criminal law that the Supreme Court should decide, he may, by lodging the transcript in the clerk’s office of the Supreme Court, within sixty [60] days after the decision, take the appeal.” (Emphasis supplied).

It is obvious, therefore, from the face of the record before us, that the decision appealed from was entered on September 1, 1975, and the appeal was not perfected in this court until November 10, 1975, and was, therefore, not lodged in the clerk’s office of this court within 60 days after the decision.

The motion is granted and appeal dismissed.