author: John A. Fogleman, Justice.

text:
    Floyd E. CLARK v. STATE of Arkansas
    CR 73-83
    498 S.W. 2d 657
    Opinion delivered September 4, 1973

      Nicholas Bierwirth, for appellant.

      Jim Guy Tucker, Atty. Gen., by: James W. Atkins, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Appellant was arrested on the 29th day of September, 1970, and charged with the rape of his eight-year-old stepdaughter. On February 5, 1971, Mr. Henry Wilkinson was appointed to represent the appellant. On February 16, 1971, appellant, having previously entered a plea of not guilty, changed that plea to guilty. A jury impaneled to fix the punishment returned a verdict fixing the sentence at 75 years. The prosecuting attorney, pursuant to an agreement with defense counsel, had waived the death penalty. Appellant’s first petition for relief under Criminal Procedure Rule 1, filed on April 22, 1971, was summarily denied. This motion was amended on August 14, 1972. The amended motion was denied after an evidentiary hearing held October 6, 1972. Appellant seeks reversal of the order denying this relief, relying upon the following points:

I. That appellant did not enter the plea of guilty at his trial with full knowledge of the consequences of the plea and should have been granted relief.
II. That the court erred in finding that appellant knowingly, intelligently and voluntarily waived his constitutional rights during the pretrial interrogation stage.
III. That the lower court erred in finding that appellant was effectively represented by counsel.
IV. That appellant was denied due process by the failure of the court to appoint counsel to represent appellant until four months after his arrest and the filing of the information.
V. That the court’s instructing the jury on the law of parole prior to any request for such information denied appellant due process of law.

We shall discuss these points in the order stated.

I.

Appellant contends that he was misled by his appointed counsel so that he believed that if he entered ^ plea of guilty, he would receive a sentence that would make him eligible for parole in not more than two years,. He also complains the trial court took no steps to advise him of the actual consequences of the plea he entered. He contends that this alleged ignorance of the true consequences of his plea rendered it impossible that his plea, was entered knowingly, intelligently and voluntarily. In support of this argument he calls our attention to the facts that he only completed the fifth grade in school, that his ability to read and write was very limited and that he had a long history of alcoholism.

The trial court found that: the guilty plea was not the result of any deception or coercion by either the deputy prosecuting attorney or appellant’s court-appointed attorney; appellant entered his guilty plea with full knowledge of the impact thereof; at no time did appellant’s court-appointed attorney threaten him with the death penalty but only advised appellant that this was a possible punishment, without undue emphasis thereon; and appellant chose to plead guilty of his own free.and voluntary will to avoid the possible imposition of such a penalty.

Appellant testified that between the time Wilkinson was appointed and the time of the trial, he saw Wilkinson on a very regular basis, and Wilkinson led appellant to believe he was going to defend appellant strongly, but later informed appellant that there was nothing appellant could do to avoid being found guilty and that if he did not plead guilty he was certain to get the death penalty. Appellant further testified that on the last day before his trial,, he decided he was not going to get any help and, since Wilkinson had told him that he could get a lighter sentence which would allow him to apply for parole in no more than two years, he decided to change his piea to guilty.

On the other hand, Wilkinson, called as a witness by appellant, testified that he told Clark that the offense with which he was charged carried a penalty ranging from a minimum of BO years to the death penalty as a maximum. According to his testimony, when the prosecuting attorney offered to waive the death penalty if Clark entered a plea of guilty, Wilkinson immediately advised Clark, telling him that, in the event he enteréd a plea of guilty, his punishment would range from 30 years to life imprisonment. He denied threatening Clark with the death penalty or telling him that a plea of guilty would result in his receiving a very light sentence on which he could be paroled in no more than two years. Wilkinson also testified that he informed Clark that the prosecuting attorney would try to get a life sentence upon a plea of guilty and that Wilkinson would try to get a 30-year sentence. According to Wilkinson, appellant’s decision1 to plead guilty was .reached several days after communication to appellant of the state’s offer.

The case came on for trial prior to our acknowledgment in O’Neal v. State, 253 Ark. 574, 487 S.W. 2d 618, that the decision of the United States Supreme Court in Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972), rendered administration of the death penalty under our existing statutes unconstitutional. The entry of a plea of guilty in order to avoid the possibility of a death penalty is not, in and of itself, an involuntary plea. North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970); Brady v. United States, 397 U.S. 742, 90 S. Ct. 1463, 25 L. Ed. 2d 747 (1970). The question here is whether the guilty plea was entered intelligently and voluntarily with the advice of competent counsel. Insofar as the advice of counsel is concerned, the burden was upon appellant to show that the advice he received from counsel was not within the range of competence demanded of attorneys in criminal cases. Horn v. State, 254 Ark. 651, 495 S.W. 2d 152; Tollett v. Henderson, 411 U.S. 258, 93 S. Ct. 1602, 36 L. Ed. 2d 235 (1973). There was ample basis for a finding by the trial court that appellant had failed to meet his burden of overcoming the presumption of competence of counsel. We are certainly unwilling to say that the circuit judge was not justified in accepting the version of appointed counsel over that of appellant in finding that appellant was fully informed as to the impact of his plea of guilty and its potential consequences. The record discloses that appellant affirmatively answered his attorney’s open-court inquiry whether his plea to the charge was guilty. It would certainly be the better practice, for the trial judge, upon the entry of a plea of guilty, to address inquiries to the defendant himself in order to establish beyond doubt that the plea is knowingly, intelligently and voluntarily made and to inform the defendant of the possible consequences of such a plea. His failure to do so in a particular case does not render the plea and the sentence thereon subject to collateral attack for constitutional infirmities, if the record otherwise affirmatively discloses or it is otherwise shown that the plea was entered understandingly and voluntarily.

II.

Appellant contends that a statement given by him to the deputy prosecuting attorney and police officers as a result of pretrial interrogation was involuntary because he had not knowingly, intelligently and voluntarily waived his constitutional guaranties against self-incrimination and of right to counsel. His argument is based largely upon his contention that his waiver could not have been knowingly and intelligently made because he did not understand, and was not capable of understanding, the explanation of these rights. He contends that he was unable to understand because of his deep distress resulting from the accusation made against him, his inability to read or write and his affliction with alcoholism for a great period of time prior to his arrest. Appellant argues thaf his alcoholism so affected his mental processes that he was not able to understand or appreciate the meaning of what was taking place around him.

In support of this allegation, Clark testified that he was half drunk when arrested and taken to the jail, where he was interrogated by Mr. Fletcher Long, Jr., deputy prosecuting attorney and Sgt. Billy Joe Baker, a state police investigator. He admitted having signed two papers, which he said were not explained to him. Clark said he was led to believe that he was helping himself by giving a statement of events of which he knew, that Mr. Long was the best lawyer he could have, that the signing of the waiver of his rights was just a technicality. He admitted that the waiver was read to him, but testified that he was not told that he had a right to remain silent, that anything he said could be used against him in court or that he had a right to advice of counsel before interrogation. He expressed the belief that he signed the statement before he signed the waiver, but professed inability to remember who explained the waiver to him and attributed his memory difficulties to his drinking problem. He explained his failure to raise any question about the truth or the voluntary nature of his statement to advice he claimed that his lawyer had given him to keep his mouth shut unless he wanted to get the death penalty. He admitted that he understood the content of the statement. His mother testified that Clark called her from the jail and “told me he did it.”

Clark’s testimony was contradicted by Long who testified that he read and explained all of the constitutional rights recited in Clark’s waiver to Clark and expressly asked Clark if he understood what had been read. According to Long, Clark responded that he wanted to sign the waiver and to talk about what had happened. Thereafter, Long said, Clark told a totally exculpatory story but when confronted with evidence found in his automobile and the fact that this statement failed to account for a period of an hour and a half, Clark then told the story contained in the statement. Long attributed to clerical error the recording of the time of the signing of the waiver as five minutes later than the commencement of the statement.

Although there was no pretrial hearing to determine the voluntariness of Clark’s confession, the record of the trial, introduced as an exhibit by Clark, discloses that Baker testified that he read the waiver to Clark after it had been explained to him by the deputy prosecuting attorney and before it was signed or any statement of Clark was taken.

This question could and should have been presented to the court during the course of the trial. See Ballew v. State, 249 Ark. 480, 459 S.W. 2d 577; Cox v. State, 243 Ark. 60, 418 S.W. 2d 799. Wilkinson’s version of the failure to do so is based upon his conclusion that the statement could not be excluded after he had interviewed the deputy prosecuting attorney and the officers who knew the circumstances under which it was taken. Of course this statement was offered in evidence after the appellant had decided to enter a plea of guilty. When we consider this fact- or along with the disclosure from the record of trial that Clark elected to testify and, instead of repudiating his confession, attributed his conduct to his drinking, it appears that the circuit court was justified in finding against appellant on this point. Furthermore, a plea of guilty is not rendered subject to collateral attack merely because the accused’s attorney may have, on retrospective consideration, erroneously concluded that a confession was admissible in evidence, if the attorney’s advice was within the range of competence demanded in criminal cases. McMann v. Richardson, 397 U.S. 759, 90 S. Ct. 1441, 25 L. Ed. 2d 763. See also, Tollett v. Henderson, supra.

III. and IV.

Appellant first argues that the assistance of counsel was ineffective because a lawyer was not appointed to represent him until approximately four months after his arrest. The recórd discloses that soon after his arrest, appellant was committed to the Arkansas State Hospital for observation. Although we feel that it would be much the better practice for the court to appoint counsel for an indigent defendant upon his first appearance before the trial court, appellant has not pointed out any prejudice that resulted from the lapse of time between his arrest and the appointment of counsel for him. His suggestion that he was prejudiced and deprived of due process of law by his commitment to the State Hospital for examination as to his mental competency and legal responsibility for his acts is wholly without merit.

In support of point III, Clark contends that Wilkinson told him so frequently that he was certain to receive the death penalty that he became intimidated by the possibility, and that Wilkinson assured him if he did plead guilty he would receive a sentence permitting parole after two years. He also asserts that: no attempt was made by Wilkinson to prevent the introduction of the alleged confession; Wilkinson made no request that rags found in Clark’s automobile be analyzed to determine the exact nature of substances thereon which were said to have been blood and semen; Wilkinson assured'him that he would not be cross-examined when he took the stand to testify; Wilkinson prejudiced his cause by examining appellant about his history of alcoholism when he testified; Wilkinson failed to cross-examine the alleged victim when she testified and ignored his desire that a prospective juror be peremptorily challenged because of some previous trouble between him and the prospective juror.

In addition to the recitations of testimony set out in discussions of other points, it should be noted that Wilkinson explained his waiver of cross-examination of the young victim. He said that after he observed that her detailing of the particulars of the offense had produced a reaction by the jurors adverse to Clark, he felt that Clark’s best interests were served by permitting the child to leave the witness stand and to be taken out of the vision of the jury as soon as possible. He also attributed his failure to challenge some of the evidence to the fact that Clark had entered his plea of guilty and had, before the offer of waiver of the death penalty was made, admitted to Wilkinson that he had raped the girl and had confessed to it. The record also discloses that Wilkinson exercised all the peremptory challenges appellant was allowed.

Insofar as the trial procedures áre concerned, the most that could have been said of counsel’s actions, if appellant’s version were accepted, was that there were errors, omissions, mistakes, improvident strategy or bad tactics. None of these will suffice even to require an evidentiary hearing on an allegation of ineffective assistance of counsel, much less justify postconviction relief from a sentence. Leasure v. State, 254 Ark. 961, 497 S.W. 2d 1. All of the matters asserted in support of this point, except that pertaining to intimidation or coercion, are matters which are ordinarily within the realm of counsel’s judgment in the conduct of his client’s defense and therefore inappropriate bases for postconviction relief for ineffective assistance of counsel. Leasure v. State, supra. We have heretofore treated the matter of coercion by counsel. We find no error in the court’s finding that appellant’s right to the effective assistance of counsel had been fully protected, and that his rights were fully protected before, during and after his trial. A charge of this sort can prevail only if the acts or omissions of the attorney result in making the proceedings a farce and a mockery of justice, shocking the conscience of the court, or if the representation is so patently lacking in competency or adequacy that it becomes the duty of the court to be aware of and correct it. Leasure v. State, supra. Nothing in this record indicates that any such state of affairs prevailed.

While we deem allegations in appellant’s petition not argued here to have been waived, we note that the attorney explained his failure to subpoena character witnesses suggested to him by appellant by stating he found these persons themselves were of questionable reputation and very vulnerable to attack as character witnesses so that their testimony would be detrimental rather than advantageous. Furthermore, no request of appellant to Wilkinson to appeal the case has been pointed out to us and, in view of the strong case against appellant, we are persuaded that the idea of appeal is a post-confinement afterthought, which may have been prompted by the fact that the death penalty was no longer a hazard.

V.

Appellant’s contention that the court’s instructing the jury on the law, of parole denied him due process of law is also totally without merit. Criminal Procedure Rule 1 is not devised as a substitute for appeal or as a method of review of mere error in the conduct of the trial. It is designed solely to afford a method for collateral attack upon a judgment and sentence upon grounds specified in the rule. Thacker v. Urban, 246 Ark. 956, 440 S.W. 2d 553. Furthermore, the procedure followed by the trial court in giving the instruction in question was not disapproved by this court until well after the date of this trial. Andrews v. State, 251 Ark. 279, 472 S.W. 2d 86. In that case, decided some time after appellant’s trial, we reviewed previous decisions approving such instructions. We concluded that we would no longer give approval to this procedure, but not on the grounds bf violation of due process or other constitutional grounds. We had just such cases as this in mind when we said:

We recognize that appeals may presently be pending where the court, in following previous opinions, may have violated the present admonition. We therefore state that the matter last discussed in this opinion, being only a matter of procedure, shall not be retroactive, but shall become effective when this opinion becomes final.

It should also be noted that when a criminal defendant has entered a plea of guilty after he has had the advice of counsel, he may not thereafter even raise claims relating to deprivation of constitutional rights prior to the guilty plea, except by showing that his plea was not voluntarily and intelligently entered because the advice he received from counsel was not within the range of competence demanded in criminal cases. Tollett v. Henderson, supra. Appellant, as previously indicated, has failed to make the required showing.

Since we find no basis for reversal on the grounds argued here, the judgment is affirmed.


source: Caselaw Access Project

author: Frank Holt, Justice.

license: Public Domain

text:
    Larry Wayne BURKS v. STATE of Arkansas
    CR 73-67
    498 S.W. 2d 336
    Opinion delivered September 4, 1973

      James R. Howard and Howard, Howard ir Howard, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Richard Mattison, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

Appellant was found guilty of robbery by the trial court, sitting as a jury, and a 10-year penitentiary sentence was imposed. When the state rested its case, the appellant offered no testimony and moved for a directed verdict of not guilty which the court refused. On appeal appellant’s only contention, through court appointed counsel, is that the court erred in its denial of the motion. We hold that the court was correct.

The thrust of appellant’s argument is primarily directed toward insufficient identification. The victim of the robbery, a 72-year-old semi-retired mechanic, testified that the appellant and a companion came into his garage and asked for some bolts for a mechanical unit. On direct examination the victim identified the appellant as the one who “shoved the gun in my side” and demanded his money. Appellant then struck him with the gun and removed his billfold and its contents ($100-$120) from his pocket. The robber and his companion fled and were apprehended a few minutes later in the vicinity by the police. On cross-examination the victim testified that, although he could not “make a positive identification,” the appellant resembled the individual who robbed him since he was the same size and height. The victim further answered that he had previously identified appellant in a lineup procedure on the afternoon of the robbery. The appellant admitted in his own uncontradicted handwritten statement that he was present at the scene of the alleged offense, although he denied being a participant.

It is a well established rule that a directed verdict is proper only when no fact issue exists and on appeal we review the evidence in the light most favorable to the ap-pellee and affirm if there is any substantial evidence. Parker v. State, 252 Ark. 1242, 482 S.W. 2d 822 (1972). In the case at bar a factual issue existed and the evidence is amply substantial to support the verdict.

Affirmed.


author: Carleton Harris, Chief Justice.

text:
    Richard EASLEY v. STATE of Arkansas
    CR 73-75
    498 S.W. 2d 664
    Opinion delivered September 10, 1973
    C. Joseph Calvin, for appellant.

      Jim Guy Tucker, Atty. Gen., by: O. H. Hargraves, Deputy Atty. Gen., for appellee.
   Carleton Harris, Chief Justice.

According to appellant’s statement of the case, on November 17, 1970, in the Holly Island Community, a few miles from Rector, an automobile occupied by four men was seen entering and leaving the driveways of several homes, and a resident of the community approached the car and, observing several items in the back seat, inquired as to their business. After an argument, the men left and the Clay County Sheriff’s Office was notified. About ten minutes later, Deputy Sheriff Liddell Jones, who had received the earlier call, received another from a resident of the community stating that several items of property were missing from his home. The Dunklin County Police Department (Kennett, Missouri) was sent a general description of the car, make, model, license number, and number of persons occupying the vehicle, and about thirty minutes later, the police located an automobile fitting the description parked at a grocery store in Kennett, the occupants, including appellant, at the time eating sandwiches. All four were arrested and the car was driven by an officer to the county courthouse. Deputy Jones from Clay County arrived about twenty minutes later, and with a member of the Missouri State Police, conducted a warrantless search of the car. Several items of personal property later established as stolen property were found on the front and back seat, and other items were found in the trunk after a search was made while the car was parked at the courthouse. Thereafter, the Prosecuting Attorney of the Second Circuit in Arkansas charged Richard Easley, appellant herein, with burglary and grand larceny of the property of Birtlee Statler (who had advised Deputy Sheriff Jones of the missing items), unlawful possession of that stolen property, along with grand larceny and unlawful possession of property allegedly belonging to Charles Grimes. A bench warrant was issued and Easley was extradited from the State of Missouri, pleaded not guilty, and was tried before a jury. He was found guilty on all four counts and was sentenced to a term of ten years in the Arkansas State Department of Correction. On September 17, 1972, appellant filed a motion for relief under Criminal Procedure Rule 1, and several amendments were subsequently added. The Clay County Circuit Court, on the basis of the record in the case, denied relief to the petitioner, and from such denial appellant brings this appeal. Seven alleged errors are asserted, though not all are here argued, and it is admitted that some are of doubtful merit.

The principal asserted error is that there was no probable cause to warrant a search of the Easley automobile. Prior to trial, the court heard, in chambers, a motion filed on behalf of appellant to suppress the evidence obtained during the search, and this motion was denied. It is contended by appellant that the court erred in finding that probable cause existed for the search, but even if there was probable cause at that time, the warrantless search of the car at the station was improper and illegal. As to probable cause, the Missouri officers had been notified by Clay County Deputy Sheriff Jones of the burglary, a description of the automobile, including the license number, and information concerning certain items of stolen property. Some of these items were visible in the back seat and back floorboard. Certainly, there was probable cause for believing that the occupants of the car had committed a felony and appellant recognizes that the case of Carroll v. United States, 267 U.S. 132 stands for jthe proposition that an officer can search a motor vehicle without a warrant if probable cause exists to believe the vehicle contains that which by law is subject to seizure. Appellant states, however, that if “exigent” circumstances existed at the time of the arrest (while the car was parked at the grocery store), such “exigency” justifying a warrant-less search ceased after the men were there arrested and the car driven to the courthouse. Accordingly, the search conducted at the latter location, says appellant, could only have been authorized by obtaining a proper search warrant.

We do not agree. In Cox v. State, 254 Ark. 1, 491 S.W. 2d 802, decided on March 12 of this year, the facts were similar, and the identical arguments were made. In that case, there was a comprehensive discussion of federal cases relating to search of automobiles and seizure of evidence therein and we pointed out that Coolidge v. New Hampshire, 403 U.S. 443, 29 L. Ed. 2d 564, a case relied upon by appellant in the present litigation, was not controlling, but rather that the key case was Chambers v. Maroney, 399 U.S. 42, 26 L. Ed. 2d 419 (1970), and we quoted from Chambers as follows:

“ ‘In terms of the circumstances justifying a warrant-less search, the Court has long distinguished between an automobile and a home or office. In Carroll v. United States, 267 U.S. 132 (1925), the issue was the admissibility in evidence of contraband liquor seized in a warrantless search of a car on the highway. After surveying the law from the time of the adoption of the Fourth Amendment onward, the Court held that automobiles and other conveyances may be searched without a warrant in circumstances that would not justify the search without a warrant of a house or an office, provided that there is probable cause to believe that the car contains articles that the officers are entitled to seize.’ ”

The court held that where the police are justified in stopping and searching an automobile as in Carroll, they may also seize and search it later at the police station. The court, in Coolidge v. New Hampshire, supra, did hold as unconstitutional a warrantless police station search of an automobile under circumstances very dissimilar to those in Chambers, but pointed out continuing approval of Chambers by stating:

“There is no suggestion that, on the night in question, the car was being used for any illegal purpose, and it was regularly parked in the driveway of his house. The opportunity for search was thus hardly ‘fleeting.’ The objects that the police are assumed to have had probable cause to search for in the car were neither stolen nor contraband nor dangerous. (403 U.S. at 460).
“Since Carroll would not have justified a warrantless search of the Pontiac at the time Coolidge was arrested, the later search at the station house was plainly illegal, at least so far as the automobile exception is concerned. Chambers, supra, is of no help to the State, since that case held only that, where the police may stop ‘and search an automobile under Carroll, they may also seize it and search it later at the police station (403 U.S. at 463).
“It is true that the actual search of the automobile in Chambers was made at the police station many hours after the car had been stopped on the highway, when the car was no longer movable, any ‘exigent circumstances’ had passed, and, for all the record shows, there was a magistrate easily available. Nonetheless, the analogy to this case is misleading. The rationale of Chambers is that given a justified initial intrusion, there is little difference between a search on the open highway and a later search at the station. Here, we deal with the prior question of whether the initial intrusion is justified. For this purpose, it seems abundantly clear that there is a significant constitutional difference between stopping, seizing, and searching a car on the open highway, and entering private property to seize and search an unoccupied, parked vehicle not then being used for any illegal purpose.”

In Chambers, as mentioned in Cox v. State, supra, a warrandess search of an automobile was made after the car had been taken to a police station, but the court noted that it could have been searched on the spot where it was stopped since there was probable cause to search, and it was a fleeting target for a search. The court added that the probable cause factor was still in existence at the station house and that in terms of practical consequences, there was little to choose between an immediate search without a warrant, and immobilizing the car until a warrant was obtained. “Given probable cause to search, either course is reasonable under the Fourth Amendment.” See also the recent case (January 2, 1973) of Gomez v. Beto, 471 F. 2d 774, decided by the United States Court of Appeals for the Fifth Circuit. Appellant’s argument is without merit.

Point II is covered by our previous discussion.

Point III sets out that the petitioner was arrested without a warrant and was not advised of his rights, but that point is not argued. We have already made clear that the arrest was justified without a warrant and the testimony reflects that appellant was advised of his rights.

Point IV refers to Easley’s allegation in his petition “That petitioner’s attorney did not defend his client to the fullness of his ability” and “petitioner’s attorney did in fact state that he wouldn’t go any further for lack of money.” Before discussing this point, it might be stated that it appears that Easley did not actually desire a new hearing before the trial court. On November 2, 1972, appellant addressed a letter to the circuit judge, complying with the court’s request that he be more specific in his allegations of inadequate representation by counsel. Easley closed the letter by saying:

“Petitioner asked the court that in view of the fact that Petitioners Constitutional Rights have been violated that the court act on Petitioners original motion on amendments to that motion. Petitioner asked that if the court can not make a decision on evidence already given [our emphasis] that the court allow Petitioner to move his (Petitioners) motion on to the higher courts in the Arkansas State Supreme Courts.”

Easley had two retained attorneys and upon the trial court’s direction to be more specific asserted that on the day of trial one of these attorneys was sick and unable to attend and he (Easley) asked the other attorney to endeavor to get the case postponed. This was not done and Easley also asserted that the attorney who was ill had other witnesses to present to the court. Of course, the allegation that the attorney stated he “wouldn’t go any further for lack of money” is rather puzzling since appellant was represented by this retained attorney throughout the trial, and the statement apparently has reference to an appeal to this court, since the appeal on the denial of relief under the Rule 1 Petition was brought to this court by appointed counsel. Of course, the names of other witnesses could have been furnished to counsel by appellant himself, and there is no allegation that the names of witnesses were given to counsel trying the case, and the attorney refused to call them. Frequently, attorneys do not call all the witnesses whose names they have, either because they do not feel the testimony would add anything to the defense, or because they think the witnesses would make a bad impression. Let it be remembered that this is no attack upon court-appointed counsel, but an attack upon Easley’s own retained counsel, who incidentally has practiced law in that area for many years. It has been frequently said that “Effective assistance does not equate with success.” See Mitchell v. Stephens, 353 F. 2d 129, and cases cited therein. The evidence against Easley, as shown by testimony in the hearing to suppress, was rather overwhelming, and the failure to obtain an acquittal certainly does not denote incompetence. In Poole v. United States of America, 438 F. 2d 325 (1971), Poole appealed from an order denying without hearing his motion to vacate sentence. It was alleged that he was denied the Sixth Amendment right for assistance to counsel in that his court-appointed counsel failed to subpoena one Richard Curtis Apgar, also a co-defendant, to testify and it was asserted that the district court erred in denying him a full evidentiary hearing. The United States Court of Appeals, Eighth Circuit, in an opinion by Chief District Judge McManus, held the contention to be without merit though Apgar had signed an affidavit supporting Poole’s allegation that he (Poole) had been forced by Apgar to commit the robbery. The court stated:

“There is a presumption of the competency of court appointed counsel. Slawek v. United States, 413 F. 2d 957 (8th Cir. 1969). A charge of inadequate representation can prevail ‘only if it can be said that what was or was not done by the defendant’s attorney for his client made the proceedings a farce and a mockery of justice, shocking to the conscience of the Court. Hanger v. United States, 428 F. 2d 746, 748 (8th Cir. 1970).’
“The calling or not calling of witnesses is a matter normally within the realm of the judgment of counsel. [Citing cases]. We hold that the requirement of the Sixth Amendment has been met here since Appellant’s counsel’s judgment not to call Richard Curtis Apgar neither made a mockery of justice, nor shocks the conscience of the Court.
“The District Court did not err in denying the Appellant a full and fair evidentiary hearing since we feel that an ‘examination of the motion and the records and files of the case conclusively shows a hearing would serve no useful purpose.’ Cardarella v. United States, 375 F. 2d 222, 230 (8th Cir. 1967).
‘If a movant under Section 2255 makes no allegations of ineffectiveness or incompetence of counsel, save in matters normally within the realm of counsel’s judgment, he is not entitled to a hearing. Mitchell, supra, 259 F. 2d at 794.’ ”

Previous discussion has covered Point V, though the point is simply stated, and no argument advanced.

Point VI asserts that the “commitment papers are not in order”, but the point is not argued and the sentence appears to be in accord with the verdict.

Finally, is it asserted that the petition should have been passed upon by a different judge rather than the same judge who presided at the trial; that this was “inherently prejudicial and a denial of due process of law”. Appellant recognizes that we have held this contention to be without merit, but insists that we should reconsider that ruling. In Meyers v. State, 252 Ark. 367, 479 S.W. 2d 238 (1972), we said:

“We have recognized the need for a different presiding judge when the one who originally heard the case is biased or, for want of a record of the first hearing, must appear as a witness. Elser v. State, 243 Ark. 34, 418 S.W. 2d 389 (1967); Orman v. Bishop, 243 Ark. 609, 420 S.W. 2d 908 (1967). In the case at hand, however, the petitioner asserts no factual basis for his insistence that the assignment of a new judge is constitutionally mandatory. We find nothing in the record to suggest that Judge Enfield was disqualified from acting upon the postconviction petition. To the contrary, he appears to have treated the petitioner with courtesy and fairness in every particular. The present contention is therefore without merit.”

There is no suggestion of prejudice in the petition filed by appellant, nor is there any indication from the record that such prejudice existed. We hold the allegation to be without merit.

Affirmed.

Fogleman, J., not participating.

      A second sentence of ten years was to be suspended upon restitution and good behavior.

      There was also testimony that Easley consented to the search of the automobile.


author: George Rose Smith, Justice.

text:
    Elbert Lee JOHNSON v. STATE of Arkansas
    CR 73-87
    498 S.W. 2d 651
    Opinion delivered September 10, 1973

      Lohnes T. Tiner, for appellant.

      Jim Guy Tucker, Atty. Gen., by: James W. Atkins, Deputy» Atty. Gen., for appellee.
   George Rose Smith, Justice.

The appellant, charged with the theft of a tractor-trailer, was found guilty of grand larceny and was sentenced to imprisonment for three years. His only assignment of error is that the State failed to prove that the stolen property was worth more than $35.

The owner of the tractor-trailer testified, in March, 1973, that he paid $3,300 for it “about two weeks before Christmas,” which would have been less than three months before the theft on February 15, 1973. The proof also shows that the rig was in operating condition and had apparently just been driven to Arkansas from North Carolina with a load of furniture.

We find the testimony sufficient to support the jury’s verdict. The qase is unlike Rogers v. State, 248 Ark. 696, 453 S.W. 2d 393 (1970), cited by appellant, for there the State offered no testimony to indicate the value of the stolen car, in dollars and cents. Here the State showed what the owner had recently paid for the stolen rig, which is a permissible factor for the jury to consider in determining market value. Williams v. State, 252 Ark. 1289, 482 S.W. 2d 810 (1972); Jones on Evidence, § 4.54 (6th ed., 1972). The jury, upon the uncontradicted proof in this case, could reasonably have concluded that the tractor-trailer combination was worth more than $35 on the date of the theft. In fact, the opposite conclusion would have been wholly unreasonable.

Affirmed.


author: Lyle Brown, Justice.

text:
    Harry BAILEY v. STATE of Arkansas
    CR 73-77
    498 S.W. 2d 859
    Opinion delivered September 10, 1973
    [Rehearing denied October 8, 1973.]

      Donald Poe, for appellant.

      Jim Guy Tucker, Atty. Gen., by: O. H. Hargraves, Deputy Atty. Gen., for appellee.
   Lyle Brown, Justice.

Appellant Harry Bailey was convicted of murder in the second degree in connection with the shooting death of W. R. Johnson. After a brief recitation of the evidence we shall enumerate and discuss the four points advanced for reversal.

Appellant owned, and resided on, a small farm in the Weeks community in western Scott County. He rented an adjoining eighty acre tract which was being occupied by W, R. Johnson as a tenant. Johnson moved out of the house but left some of his personal belongings and kept the key. When appellant found need for the house he went to see Johnson about the key and that meeting resulted in a heated encounter. Appellant testified that he was unable to get the key; that Johnson struck appellant in the face; and that Johnson threatened to kill appellant. The next confrontation of significance between the two men was on the day of the shooting, July 17, 1972. Appellant went to Stinson’s Garage in Weeks to pick up some personal items. He had a rifle in his pickup truck. Appellant transacted his business at the garage and just as he was getting in his truck, Johnson drove up and stopped. Johnson got out of his truck and walked toward appellant’s truck. Appellant testified that he thought Johnson was intending to kill him, so, in fear of his life, appellant shot and mortally wounded Johnson.

The State offered the testimony of three eyewitnesses to the shooting. They testified that Johnson was unarmed; that as Johnson approached appellant’s truck appellant said: “Johnson, I thought I told you to get out of the country”; that Johnson replied: “Well, go ahead and shoot. I’m not afraid of your gun”; and that appellant thereupon fired the fatal shot. Appellant insisted that he fired the shot because he feared for his life, although he conceded that Johnson displayed no weapon. On appellant’s behalf, Richard Aldridge testified that on the day of the encounter at the farm, the witness heard Johnson tell appellant that he would kill appellant the next time he saw him. Other evidence and trial procedure pertinent to the case will be recounted as the points for reversal are discussed.

POINT I. The trial court erred in failing to provide a 1973 jury selection to try the case in January 1973. In Scott County, January falls within the November term of court. The panel from which the jury was selected was chosen for the November 1972 term. If appellant desired to challenge the panel, a motion to that effect should have been made before his jury was em-panelled and sworn, fie did not do this. In Carruthers v. Reed, 102 F. 2d 933 (1939) the Eighth Circuit Court of Appeals said:

Under the law of Arkansas a challenge to the panel or motion to quash must be promptly made and it is too late if the jury has been empanelled and sworn. Brown v. State, 12 Ark. 623 (See 35 C.J. 377). If no objection was made at the trial, it is too late to urge it for the first time after verdict.

POINT II. The court erred in denying the proffered psychiatrist’s testimony. Appellant called as a witness a duly licensed medical doctor specializing in psychiatry. Appellant had consulted the doctor after the shooting and the doctor would have, according to the proffered testimony, given an opinion of the state of mind of appellant at the time of the shooting. We emphasize that appellant was not interjecting the issue of insanity. Appellant’s attorney stated that he would prove by Dr. Chambers that the doctor had visted and consulted with appellant and that in the doctor’s opinion, appellant fired the fatal shot through fear generated by the first confrontation at or near the tenant house. “As a general rule, the opinion of experts is not received if all the facts can be ascertained and made intelligible to the jury, or if the matter is such as men in general are capable of comprehending.” 2 Wharton’s Criminal Evidence § 502 (1955). The jury was furnished with a history of the background encounter between the parties; they had the testimony of three eye witnesses to the shooting; and they had a history of the shooting as viewed by the appellant. Any testimony given by the psychiatrist as to the cause of the shooting would have been cumulative and also would be based on the version of the shooting as recited to the doctor by appellant. The trial court did not err in refusing to admit the testimony of the psychiatrist.

POINT III. The court erred in giving its instructions and refusing the requested instructions of appellant. The specific argument on appeal with respect to instructions is that the court erred in giving court’s instruc-dons 16 and 18. Instruction 16 is the same as instruction S-9, discussed and approved in the case of Lamb v. State, 218 Ark. 602, 238 S.W. 2d 99 (1951). It was there held that the cautionary instruction (S-9) was appropriate when the case goes to the jury on the theory of self-defense. Instruction 18 is lifted from Tatum v. State, 172 Ark. 244, 288 S.W. 904 (1926). In Tatum the instruction was numbered 15. In the case at bar appellant made the single objection tliat the instruction did not inform the jury that they could conclude that appellant may not have had the requisite intent to commit murder.

POINT IV. The court erred in permitting the State to bring in rebuttal evidence after both sides rested, and further erred in refusing appellant the right to rebut the rebuttal witness. As to the first facet of the point, the court permitted the State, after both sides had rested, to produce the testimony of Walter Sussex. The purpose of the Sussex testimony was to rebut the defense testimony to the effect that the deceased Johnson had a bad reputation for being peaceful and law-abiding. The action of the trial court was within the province of its discretion. Rochester v. State, 250 Ark. 758, 467 S.W. 2d 182 (1971). After the testimony of Sussex, appellant asked permission to recall a number of witnesses in surrebut-tal. They were all character witnesses and the court apparently perceived that they had related all they knew about the reputation of the deceased for turbulence and violence. At least we cannot say the court abused its discretion in denying appellant the right to recall them.

Affirmed.


text:
    Harold E. FORTNER v. STATE of Arkansas
    CR 73-92
    498 S.W. 2d 671
    Opinion delivered September 10, 1973

      James H. Pilkinton, for appellant.

      Jim Guy Tucker, Atty. Gen., by: O. H. Hargraves, Deputy Atty. Gen., for appellee.
   Lyle Brown, Justice.

This appeal of Harold E. Fort-ner is from the revocation of a suspended sentence. The two points for reversal are (1) that the court erred in permitting an officer to testify as to statements made to the officer by appellant, and (2) that the court abused its discretion.

The charge for which a suspended sentence was imposed was for forgery and uttering. Several months thereafter appellant was charged with burglarizing Phillips Used Cars and taking, among other things, a pistol. On the day set for trial the latter charge was dismissed and a petition to revoke the suspended sentence was filed. An immediate hearing was held on the petition and revoca-don was ordered.

We summarize the evidence in the light most favorable to the State. On March 16, 1973, appellant went home’ around 10:00 p.m. He said he had been to Tex-arkana with two companions and drank some beer; that on his way home he had car trouble with a car he had bought in Texarkana for $50.00; that- he hitch-hiked to Hope and the driver sold appellant a pistol for $10.00; and that he bought a hamburger and went home to eat it. The Fortner family occupied a room at Mrs. Fortner’s grandmother’s house. The grandmother testified that she heard a commotion in the Fortners’ room and that shortly Mrs. Fortner came out saying appellant had a gun and threatened her. Mrs. Fortner testified that appellant did not pull a gun “but he said he had one and patted his pocket”. She said appellant threatened to shoot her “if I kept smarting off”. Appellant called her, so she said, a whore, and cursed her. She said she could smell alcohol on appellant and she thought his antagonism on the occasion was caused by appellant’s drinking.

A pistol was found in a trash barrel used by the grandmother, and Harry Phillips identified it as having been stolen from his office on the same night. A car which was taken from the Phillips lot was found abandoned about two blocks from where appellant resided.

The evidence we have summarized came from an officer who interviewed appellant at the jail, the grandmother, and appellant’s wife. Appellant elected not to testify.

In a conclusionary statement made from the bench, the court remarked that the suspended sentence had been granted conditioned on appellant’s good behaviour. He commented on the facts that appellant had consumed beer, had threatened his wife, and was carrying a gun. The court concluded that the recited matters could not be overlooked and based his revocation upon those actions of appellant. We conclude that the trial court did not abuse its discretion. We have a host of precedents for the proposition that the question of revocation addresses itself to the discretion of the trial court. To cite only a few, Burt v. State, 241 Ark. 798, 410 S.W. 2d 387 (1967); Kinard v. City of Conway, 241 Ark. 255, 407 S.W. 2d 382 (1966); Smith v. State, 241 Ark. 958, 411 S.W. 2d 510 (1967). There must be a gross abuse of discretion before we will overturn a trial court’s revocation. Barnes v. State, 254 Ark. 404, 494 S.W. 2d 711 (1973).

Appellant argues that it was error to permit Officer Ward to testify about a conversation the officer had with appellant while he was in jail awaiting trial. The simple answer is that appellant was first advised of his constitutional rights. It is true Officer Ward was investigating the Harry Phillips burglary and did not advise appellant that his statements could be used against him in a revocation hearing. But that advice was not necessary so long as Officer Ward advised appellant — which Ward said he did — that his statements could be used against him in a court of law.

Appellant points out that the burglary charge was dismissed and that the evidence does not show he had stolen property in his possession. The proof required for a conviction and for a revocation is (different. As stated in Smith, supra, the degree of evidence required as a basis of revocation does not have to show proof of guilt beyond a reasonable doubt.

Finally, appellant says the consumption of beer occurred in his home and should therefor^ ■ not be held against him. That is not the proof. He related to Officer Ward that he drank the beer in Texarkana.

Affirmed.


text:
    Leonard D. SHEPPARD v. STATE of Arkansas
    CR 73-93
    498 S.W. 2d 668
    Opinion delivered September 10, 1973

      Harold L. Hall and Garner L. Taylor Jr., for appellant.

      Jim Guy Tucker, Atty. Gen., by: Philip M. Wilson, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Appellant was convicted of possession of stolen property, and, as an habitual criminal, was sentenced to 21 years in the penitentiary. No appeal was taken, but appellant filed his original petition for postconviction relief on the sole ground that he was denied effective assistance of counsel at his trial. The primary bases upon which he argues that he was entitled to relief upon his original and amended petitions were that he was ill-prepared for trial because his attorneys misled him into believing that if the prosecuting witness expressed a desire to drop the prosecution, there would be no trial, and that his attorneys failed to call alibi witnesses of whom he had informed them. This is the latest in an epidemic of cases in which a convicted felon has sought a retrospective evaluation of the effectiveness of his trial counsel, based largely upon disappointing trial results. We find no more merit in this petition than we have in most such post-imprisonment longings for a judicial test of the competence of counsel from the perspective of hindsight, because of speculation that some course of action different from that taken during the trial might have produced a result more favorable to the petitioner.

In denying appellant’s petition, the trial judge made specific findings that trial counsel did. not tell appellant that if the prosecuting witness would sign a letter recommending dismissal of the charges there would be no trial and that, on every point, appellant was adequately represented by counsel. We find ample evidentiary support for these findings by the trial judge who was the same judge who presided over appellant’s trial. We accord more than usual weight to such findings under the circumstances prevailing here. Leasure v. State, 254 Ark. 961, 497 S.W. 2d 1.

The appropriate test in such cases, regardléss of whether counsel is retained or appointed, has been stated by us in previous cases. In short, the question is whether the petitioner has shown by a preponderance of the evidence that acts or omissions (or both) of his attorney result in making the proceedings a farce and a mockery of justice, shocking the conscience of the court, or that petitioner's representation by counsel was so patently lacking in competence or adequacy that it becomes the duty of the court to be aware of and correct it. See e.g., Leasure v. State, supra; Davis v. State, 253 Ark. 484, 486 S.W. 2d 904; Franklin and Reid v. State, 251 Ark. 223; 471 S.W. 2d 760. See also, Easley v. State, 255 Ark. 25, 498 S.W. 2d 664, decided today.

Both of appellant’s attorneys were called as witnesses by petitioner. One of them, Omar Greene, stated categorically he did not tell appellant that there would be no trial if the prosecuting witness did not wish to prosecute, and that the defendant did not request that the case be appealed. The other attorney, Alan Nussbaum; could not recall having advised appellant that the trial court would dismiss the charge if the prosecuting witness signed a letter stating he did not wish to prosecute appellant. Neither could he recall appellant having given the names of alibi witnesses. This attorney also told of extreme difficulty encountered by both attorneys in getting in touch with appellant during the period of approximately two months intervening between their retention and his trial. This attorney .said he came to the conclusion that appellant was guilty of the charge on the basis of the facts related by appellant himself and obtained an offer from the. prosecuting attorney to recommend a five-year sentence and to drop another charge pending against appellant upon appellant’s entry of a plea of guilty. He added that appellant refused to so plead in spite of advice that, upon conviction after trial, he could receive a minimum sentence of 21 years, because óf his previous record.

Appellant contradicted the testimony of these attorneys in regard to representations made by them to him, the giving of names of prospective witnesses and his expression of a desire to take an appeal. He also produced a witness, George Lee Champ, also a convicted felon, who stated he told one of the attorneys he knew where appellant was on the day of the crime and outlined facts that would have tended to establish an alibi. Melissa Hawkins, a friend and next door neighbor of appellant, testified to facts which tended to show that appellant was, indeed, in the company of Champ on the day in question. While her identity was known to one or the other or both of appellant’s attorneys, there is no proof that either was informed of her potential testimony. The attorney to whom Champ claimed to have told his story recalled talking to Champ but denied that either Champ or Sheppard ever intimated to him that Champ knew anything about the case or appellant’s whereabouts on the day the offense was said to have been committed. This attorney also stated he was familiar with Champ’s record and felt certain that Champ would have been discredited in the eyes of any jury. The lawyer also said he only knew of Melissa Hawkins as a person to contact in trying to reach Sheppard, but denied that he knew she was a possible witness. This witness stated he told appellant he could not prosecute an appeal in appellant’s behalf, and wanted nothing further to do with the case, advising Sheppard at the same time that he should write to the judge and ask for the appointment of an attorney. This witness explained counsel’s failure to call one Isom Burnett Kelley (subpoenaed by the state) as a witness because he was familiar with Kelley’s statement to the police ihcrimina-ting appellant, and knew that, if Kelley testified otherwise, he would be impeached by the statement.

It should be noted that L. B. Robinson, the prosecuting witness, not only signed a statement declining to prosecute Sheppard and requesting dismissal of the charges, but one of the attorneys stated that Robinson testified to the same effect at the trial. No witnesses were called at the trial on behalf of appellant, who testified that he was not deprived of his right to testify, but that he did not take the witness stand because his attorneys advised him not to do so because of his criminal record (three prior convictions).

The trial court was justified in resolving conflicts in the testimony against appellant because of his greater interest in the matter and his previous convictions, if for no other reason. It is possible that both appellant and his attorneys were overconfident about the effect of the assistance of the prosecuting witness. The most that could possibly be said, however, when the evidence is viewed in the light most favorable to the state, as it must be, is that, in retrospect, counsel may have been guilty of errors, omissions, mistakes, improvident strategy or poor tactics, which is insufficient basis for postconviction relief. Leasure v. State, supra. We cannot say that any acts or omissions of appellant’s attorney reduced the trial to such a farce or mockery of justice or that his representation was so patently lacking in competency or adequacy that it was the duty of either the trial court or this court to be aware of it or take corrective action. Most of the matters complained of by appellant relate to trial tactics and strategy involving the exercise of the trial attorneys’ discretion and competence and upon which competent counsel might honestly disagree, especially from the excellent vision of hindsight. These matters cannot afford the basis for a finding of incompetence or ineffective assistance of counsel. Leasure v. State, supra; Credit v. State, 247 Ark. 424, 445 S.W. 2d 718.

We deem appellant’s assertion that he was denied the right of appeal through nonfeasance of his attorneys to have been abandoned, or to have been an afterthought. It was not alleged in his Rule 1 petition and has not been argued here in any way. According to the testimony of Nussbaum, he viewed an appeal as non-meritorious and felt there was no way he could properly represent appellant on an appeal. Since it appears that this attorney advised appellant of appropriate steps to take in order to appeal the case, the right to appeal seems to have been lost by appellant’s own inaction.

We find no reversible error and affirm the judgment denying postconviction relief.

Byrd, J., not participating.

      According to the trial judge, appellant was advised of his right to appeal at the time of sentencing.

      atiere is a conflict in the testimony as to whether the attorneys for appellant were appointed or retained, but we deem that question immaterial in this case.


author: J. Fred Jones, Justice.

text:
    James EATON v. STATE of Arkansas
    CR 73-85
    498 S.W. 2d 648
    Opinion delivered September 10, 1973

      Ike Allen Laws Jr., for appellant.

      Jim Guy Tucker, Atty. Gen., by: Philip M. Wilson, Asst. Atty. Gen., for appellee.
   J. Fred Jones, Justice.

James Eaton was charged on information filed by the prosecuting attorney with delivering to Johnnie Rivers a quantity of marijuana in excess of one ounce with the intent to unlawfully deliver and cause same to be unlawfully delivered to other persons. He was convicted at a jury trial and was sentenced to five years in the penitentiary with four years suspended.

On appeal to this court Eaton contends that the trial court erred in not directing a verdict of acquittal or in not granting his motion for a new trial on the ground that the only evidence against the defendant was an uncorroborated oral statement made to police officers in the course of investigation. We agree with the appellant that his conviction must be reversed and the cause remanded for a new trial.

It appears from the record that in the course of investigating the marijuana traffic among students at Arkansas Polytechnic College at Russellville, six bags or “lids” of the substance were found in the possession of Tommy Gooch. Gooch implicated Johnnie Rivers as the person from whom he obtained the marijuana. Rivers entered a plea of guilty to a charge of selling to Gooch and apparently Rivers implicated Eaton as the person from whom he obtained the marijuana. Eaton was arrested and his house was searched by the police officers and he was subsequently charged as above set out.

The record indicates that the state intended to use Rivers as a witness against Eaton and in corroboration of statements made by Eaton to the police officers but, at the trial, Rivers denied that he had ever told the prosecuting attorney or anyone else that he acquired marijuana from Eaton. At some point in the proceedings Rivers’ parents employed Eaton’s attorney to represent Rivers and when Rivers was asked the direct question as to whether he had in fact purchased marijuana from Eaton, he refused to answer the question on advice of his and Eaton’s attorney as in violation of his constitutional right against self-incrimination.

Detective Jerry Snow was then called as a witness for the state and the prosecuting attorney requested an exclusionary hearing in chambers. At the in-chambers hearing Detective Snow testified that after Eaton was arrested, Eaton stated in his presence that he had sold ten lids of marijuana to Rivers for $10 per lid, but that Eaton refused to say from whom he obtained the marijuana. Detective Snow said he reduced the statement to writing but that Eaton refused to sign the written statement without his attorney being present. The full statement as written out by Detective Snow appears as follows:

“James Eaton. About a week and a half ago — I don’t remember the exact date— I sold Johnnie Rivers ten lids of Marijuana. I sold it to Rivers for $10.00 a lid. Rivers didn’t pay me then, but he was to pay me later. I figured he was going to sell it, but I didn’t know who. I would rather not say who I bought the marijuana from.”

The record of the in-chambers hearing then becomes somewhat confusing and appears as follows:

“MR. LAWS: I think it is obvious he refused to sign the statement right at the tíme. It is not a voluntary statement.
THE COURT: The Court will admit it. Save your exceptions.
MR. LAWS: For the purpose of the record and without waiving my client’s rights, this is an exclusionary hearing we are in, and I can ask him questions without waiving any of my rights.
THE COURT: Let’s cross one bridge at a time please.
MR. LAWS: Are you going to refuse to allow me to have my client explain the circumstances surrounding this statement?
THE COURT: No, sir. If he denies the statement, and I am assuming that is what he is fixing to do.
MR. LAWS: No, he is not going to deny the statement, but I have a right to show whether or not the statement is voluntary and have something for the Court to pass on.
THE COURT: Do you want me to do it out here?
MR. STREETT: I thought you were denying it. We have no objections to putting it on.
THE COURT: If it is a denial, let’s go. If it is something for the Court to pass on, let’s go.
MR. LAWS: It is a question whether or not this was a voluntary statement.
THE COURT: That’s a question for the jury.
MR. STREETT: We have no objections to the Court passing on whether or not it was voluntary.
THE COURT: I have admitted the statement.
MR. LAWS: Are you going to admit the statement without testimony?
THE COURT: I have admitted the statement. From here on out then if there is something to show it was involuntary, it is a question of fact.
MR. STREETT: We have no objections. I thought he was denying making the statement. If he makes a statement it was under coercion, or —
MR. LAWS: We feel like the facts surrounding the confession it is whether or not the Court — especially due to the fact that the law requires the Court to look at a signed confession, and —
THE COURT: All right.
MR. LAWS: Without waiving rights, other than the circumstances not surrounding the confession, I would like to call my client.”

James Eaton then testified at the in-chambers hearing and denied making the statement at all. He said he was shocked and confused at his arrest; that the officers advised him it would be better for him If he would “come clean”; that they threatened to “hang him from the highest tree” and make an example of him. On cross-examination Eaton testified in part as follows:

“Q. You did make the statement that has been referred to here?
A. If I did—
Q. Did you?
A. No, sir, I did not.
Q. You didn’t? Are you saying that under oath today? That you didn’t make the statement that has been referred to here?
A. No, sir.
Q. Do you recall having your rights read to you?
A. Yes, but I didn’t understand them.
Q. What was it you didn’t understand?
A. I didn’t understand any of it really.
Q. You said at the time you did, did you not, that you understood?
A. I don’t recall saying it.”

At the close of the in-chambers hearing the trial court ruled as follows:

“The Court is going to admit the statement. Save your exceptions. The whole thing in chambers here becomes a question of fact for the jury to determine. It is a question of fact whether they took it or didn’t take it.”

Detective Snow then testified in open court in part as follows:

“Mr. Eaton stated that he had sold ten lids of marijuana to Johnnie Rivers, that Johnnie Rivers had not paid him for this marijuana, that it was to be paid for later, that he did not know what he was going to do with it, or where he was going to sell it, that he would rather not tell us where he had obtained it himself.”

Detective Sergeant William Briscoe also testified in corroboration of Detective Snow’s testimony as to the statement made to them by Eaton. The appellant James Eaton did not testify before the jury.

It is clear from the record before us that the prosecuting attorney was taken by surprise at Rivers’ denial of having previously implicated Eaton as the one from whom he purchased marijuana and by his refusal to testify under advice from his and Eaton’s attorney as to whether he had made such purchase from Eaton. The record is not clear as to the basis for Rivers’ fear of self-incrimination by testifying as to whether he purchased marijuana from Eaton. Rivers had been convicted on a guilty plea of selling marijuana to Gooch and his and Eaton’s attorney explained Rivers’ refusal to testify in the following language:

“First of all, after Mr. Rivers’ parents and Mr. Streett had a little misunderstanding the other day they came to me, as an attorney, and asked me to represent them. As such, they gave me information and asked me whether or not their son had the right to take the Fifth Amendment. He pled guilty and was convicted in Pope County of selling part of this marijuana he got from my client.
THE COURT: This man was convicted of selling?
MR. LAWS: He wasn’t charged with purchasing from Eaton. He was charged and convicted of selling a part of it to somebody else.” (Emphasis added).

The record indicates that other pertinent evidence would have been available to the state had the state’s attorney known that Rivers would refuse to testify on advice of his and Eaton’s attorney. But as the record now stands, there was no evidence presented connecting Eaton with the sale or delivery of marijuana to Rivers except the testimony of Detective Snow and Briscoe that Eaton had told them he had made such sale.

Ark. Stat. Ann. § 43-2115 (Repl. 1964) reads as follows:

“A confession of a defendant, unless made in open court, will not warrant a conviction, unless accompanied with other proof that such an offense was committed.”

In the case at bar there was no evidence that marijuana was sold or delivered to Rivers by anyone. The judgment of the trial court is reversed and this cause remanded for a new trial.

Reversed and remanded.


author: Conley Byrd, Justice.

text:
    Rembert Lee HUNT v. STATE of Arkansas
    CR 73-73
    498 S.W. 2d 654
    Opinion delivered September 10, 1973

      Carpenter, Finch ér McArthur, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Philip M. Wilson, Asst. Atty. Gen., for appellee.
   Conley Byrd, Justice.

Appellant, Rembert Lee Hunt, to reverse a felony conviction for assaulting an officer with a deadly weapon, Ark. Stat. Ann. § 41-2802 (Supp. 1971), contends that the evidence is insufficient and the trial court erred in refusing to admit a glass into evidence.

The record shows that Officer Larry Dill, in street dress, and two other uniformed officers of the Little Rock Police Department went to a club to arrest two black female suspects. After the females were taken into custody, appellant, according to some of the witnesses, made inquiry of the officers as to where they were taking the suspects. Appellant then assaulted Officer Dill with a drink glass which was broken during the assault. Officer Dill suffered a cut behind his ear requiring several stitches. Some of the witnesses described the glass used by appellant as an eight ounce glass. At the trial the court refused to permit áppellant to introduce a four ounce glass into evidence.

In Jackson v. State, 214 Ark. 194, 215 S.W. 2d 148 (1948), we held that any object likely to produce death or great bodily harm could be a deadly weapon. We find no merit in appellant’s contention that the evidence is insufficient.

Neither can we find merit in the contention that the trial court erred in refusing to permit the four ounce glass to be introduced into evidence. We cannot say that it was sufficiently identified as being similar to the glass used in the assault.

Affirmed.


text:
    Ernest E. STANDRIDGE v. STATE of Arkansas
    CR 73-105
    498 S.W. 2d 663
    Opinion delivered September 10, 1973
    • James M. Simpson, for appellant.

      Jim Guy Tucker, Atty. Gen./by: James W. Atkins, Asst. Atty. Gen., for appellee.
   Conley Byrd, Justice.

Appellant Ernest E. Standridge was given a life sentence in 1952 for the murder of his wife. In 1966 he was given a post conviction hearing on the identical issues now raised. On March 5, 1973, the trial court gave him a second post conviction hearing upon his allegation that three persons hostile to him were permitted to go into the jury room during the jury’s deliberation. Appellant’s testimony about the alleged occurrence was not corroborated by any witness. R. C. Warren who served on the jury testified positively that no one entered the jury room during the deliberation. The trial court denied appellant any relief both on the merits and because the issue had become res judicata. We agree for both reasons.

Affirmed.


text:
    Florence EUBANKS, et al v. Fred J. ZIMMERMAN, et al
    73-44
    498 S.W. 2d 655
    Opinion delivered September 10, 1973

      Thompson & Thompson, for appellants.

      Marvin H. Robertson and Hugh L. Brown, for ap-pellees.
   Frank Holt, Justice.

The appellants, Florence Eu-banks, individually and as guardian of the person of James Huey. Eubanks, and the First National Bank, as guardian of his estate, appeal from an adverse holding in a tax redemption suit initiated by them. The issue on appeal appears limited to whether three distinct disabilities can be connected (tacked) so that the guardian of the incompetent can redeem land, once held in a co-tenancy (with the personal guardian) by the incompetent, some 25 years after a tax forfeiture sale.

In 1945 Mrs. Eubanks purchased a 40 acre tract of land in her name and another 40 acre tract in the joint names of herself and her two-year-old. son, James. James entered the army at the age of 17 in 1960. He remained in the army until discharged in May, 1968, as a result of injuries received in Viet Nam which rendered him permanently mentally incompetent. As we understand appellants’ argument on appeal, it appears to be limited to the right of redemption as to the 40 acre tract held jointly by her and her son'. She had sought recovéry of the 40 acre tract owned by her individually.

The land in question had been forfeited for failure to pay taxes. Fred J. Zimmerman, now deceased, bought both tracts of land at a. tax sale in 1948, took possession, and received a deed on the lands from the state in 1952. He continued to live there, approximately 21 years or until his death in 1969. As a defense to appellants’ tax redemption action, the appellees asserted adverse possession and payment of taxes under color of title.

On'March 10, 1972, the appellants brought this tax redemption action. Appellants contend that the applicable statutes of limitations were tolled against James, Mrs. Eubanks’ son and co-tenant; i.e. either the three year statute of limitations under Ark. Stat. Ann. § 37-101 (1962 Repl.) (the adverse possession statute), or a two year period for bringing suit under Ark. Stat. Ann. § 84-1201 (1960 Repl.) (the tax redemption statute). Their theory rests upon connecting (tacking) three unrelated disabilities: minority, the Soldiers and Sailors Relief Act, 50 U.-S.C. § 525, and mental incompetency. The chancellor rejected this theory and we agree.

We have held that one co-tenant can redeem for both wheh land has been forfeited for non-payment of taxes. Smith v. Pettus, 205 Ark. 442, 169 S.W. 2d 586 (1948). However, in the past this court has shown no favor towards the tacking of, disabilities. The rationale is that tacking distinct disabilities keeps title uncertain for too great a length of time and defeats the purpose of the statutes of limitations. The law favors early vesting of a title. In Reed v. Money, 115 Ark. 1, 170 S.W. 478 (1914), the court refused to allow a woman to tack the disabilities of non-age and coverture against an adverse possessor. In Carter v. Cantrell, 16 Ark. 154 (1855), the court refused to tack infancy and coverture, holding that no disability can be utilized unless in existence at the time the cause of action accrued. The rule is longstanding and the policy reasons remain sound.

In the instant case the cause of action in question arose during James’ disability of minority. However, when James attained the age of majority, or the removal of his minority disábility, he was in the army and under the shelter .of the Soldiers and Sailors Relief Act, which tolls a statute of limitations for a cause of action during the period of military service. Even though our cases do not permit tacking, of course, our statutes of limitations cannot run counter to the federal legislation. However, the shelter of the Soldiers and Sailors Relief Act is removed upon the discharge from military service. Diamond v. U.S., 344 F. 2d 703 (1965).

In the case at bar, inasmuch as tacking is not permissible, upon- James’ discharge in 1968, the statutory period began to run even though he was under a new disability of mental incompetency. This cause of action was not brought until three years and ten months after his discharge. The statutory period had then expired under either the tax redemption statute, § 84-1201, or the adverse possession statute, § 37-101 (which we note expressly prohibits cumulative disabilities).

Affirmed.


text:
    Mattie Louise HAMMOND v. STATE of Arkansas
    CR 73-74
    498 S.W. 2d 652
    Opinion delivered September 10, 1973

      Walker, Kaplan ¿r Mays and A. T. Goodloe, for appellant.

      Jim Guy Tucker, Atty. Gen., by: O. H. Hargraves, Deputy Atty. Gen., for appellee.
   Frank Holt, Justice.

The appellant was convicted by the trial court, sitting as a jury, of using abusive language in violation of Ark. Stat. Ann. § 41-1412 (1964 Repl.) and violating Ark. Stat. Ann. § 41-2801 (1964 Repl.) by resisting arrest. Her punishment was assessed at $50 and costs and 30 . days in jail on each offense with the jail sentences suspended. Appellant first attacks the constitutionality of § 41-1412 (breach of peace statute) as being violative of the federal First and Fourteenth Amendments.

Appellant asserts that the statute is overbroad, vague, unconstitutional in its application and cannot be given a narrow construction to limit abusive language to “fighting words.” § 41-1412 reads in pertinent part as follows:

“If any person shall make use of any profane, violent, vulgar, abusive or insulting language toward or about any other person in his presence or Hearing, which language in its common acceptation is calculated to arouse to anger the person about or to whom it is spoken or addressed, or to cause . a breach of the peace or an assault, shall be deemed guilty of a breach of the peace_”

Appellant’s contentions as to the constitutionality of this statute were determined adversely in our very recent case of Lucas v. State, 254 Ark. 584, 494 S.W. 2d 705 (1973). There we considered various federal cases including Gooding, Warden v. Wilson, 405 U.S. 518 (1972), upon which appellant also relies. In Lucas, in upholding the constitutionality of our breach of the peace statute, we construed and restricted its application as to abusive language to “fighting words” and, therefore, our statute met the standard required in Chaplinsky v. New Hampshire, 315 U.S. 568 (1941), from which we quoted at length. There it was held that not all speech is constitutionally protected and included among these categories are “the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” Fighting words must be of such a nature as “likely to provoke the average person to retaliation, and thereby cause a breach of the peace.” Chaplinsky v. New Hampshire, supra. Appellant admits that the right of free speech is not an absolute guarantee by our federal First Amendment. Schenck v. United States, 249 U.S. 47 (1919), and Whitney v. California, 274 U.S. 357 (1927).

It appears clear from Chaplinsky that any statute punishing or regulating the use of abusive language must be limited to fighting words. If the statute appears vague and unclear on its face, it can be preserved by the courts when restricted in its application to “fighting words” as defined by Chaplinsky. In other words, only that vile or abusive language which arouses anger to the extent likely to cause retaliation — fighting words — are within the meaning of the statute. With this standard or test in mind, we now turn to the evidence in this case.

A local policeman went to appellant’s residence for the purpose of arresting a relative of appellant on a charge of possessing stolen property. When the officer attempted to effect the arrest, the appellant called the officer “pig, son-of-a-bitch, mother f-.” She also called him “a jive white ass punk.” She was asked to “hush” and be “quiet;” however, she continued to repeat the epithets after another officer arrived. Appellant only denied that she called him a pig and son-of-a-bitch. She “guessed” that it was her purpose to make the officer “mad.”

It is unnecessary to show or prove that abusive language caused a fight — it is only necessary that the abusive words were likely to cause a fight or retaliation. Furthermore, the court can take judicial notice that abusive language used by the addresser constitutes fighting words. In Chaplinsky, supra, the court recognized that:

“Argument is unnecessary to demonstrate that the appellations ‘damned racketeer’ and ‘damned Fascist’ are epithets likely to provoke the average person to retaliation, and thereby cause a breach of the peace.”

Likewise, we are of the view that argument is unnecessary to demonstrate the language or epithets used by appellant in the case at bar were likely to provoke an average person to retaliate and cause a breach of the peace. We cannot conceive that the First Amendment, which guarantees freedom of speech, was formulated with the view that such insulting, vulgar and inflamatory language as used by the appellant in the case at bar, supposedly to arouse anger, was envisioned as being within the bounds of freedom of speech.

Appellant next asserts that the evidence as a matter of law is insufficient to support the finding by the trial court. Without reiterating the language used, we think the evidence amply sufficient and substantial to support the trial court’s finding that the appellant violated § 41-1412 (breach of the peace). As to § 41-2801 (resisting arrest), the state adduced evidence that when the officer attempted to arrest appellant she resisted, struck him with a phone, and it became necessary for the officer to have the assistance of a fellow officer. This evidence is substantial and we affirm whenever there is any substantial evidence to support the trial court’s finding.

Affirmed.


text:
    James Duncan FUDGE v. STATE of Arkansas
    CR 73-97
    498 S.W. 2d 873
    Opinion delivered September 17, 1973

      Gene Worsham, for appellant.

      Jim Guy Tucker, Atty. Gen., by: James W. Atkins, Asst. Atty. Gen., for appellant.
   Carleton Harris, Chief Justice.

James Duncan Fudge, appellant herein, was charged with the crime of second degree murder in the alleged slaying of his wife, Dorothy Fudge. During the trial, the court reduced the charge to involuntary manslaughter, and the jury returned a verdict of guilty, fixing appellant’s punishment at three years imprisonment. From the judgment so entered, Fudge brings this appeal. For reversal, it is asserted that the trial court erred in permitting the State to impeach its own witness by proof of a prior contradictory statement.

Lela Mae Bell, a witness on behalf of the State, testified that around 10:30 P.M. on fhe evening of July 28, 1972, she was playing cards with Mrs. Fudge, and two other women at the Fudge home, when appellant came in with a box of chicken. The witness stated that the wife took a piece of chicken and remarked to appellant, “James, your woman called.” No answer being given, the statement was repeated, and Fudge answered, “So she did.” Fudge then stated that “The game is over, no more playing cards here at the house,” walked back into his bedroom and, according to the witness, “When he come out, well, he come out shooting. *##And he shot four bullets in the floor. He shot four times in the floor. Well, she was standing up by the table and the fifth bullet, well, when he shot that, the fifth bullet, well, I don’t know where it hit her but, anyway, when he shot the fifth bullet, he turned around and went back in the bedroom. When he went back in the bedroom, well, she fell. Well, she called Pearl’s name. She said ‘Pearl’, said, ‘James shot me now you’ll,’ so Gladys was standing up in the middle door and I was backed against the wall.”

Mrs. Bell then stated that Fudge walked from his room, said, “Lord have mercy, I done shot my wife,” picked her up and “carried her to the hospital.” On cross-examination, the witness testified that all five shots were fired into the floor, and on redirect examination, Mrs. Bell said that apparently he did not know that he hit his wife until he came back out of the room. She also said that Mrs. Fudge had told her not to “bother him, let him shoot, let him shoot me one time.” The State claimed surprise at the testimony of the witness and sought permission to impeach her testimony. The matter was taken up in chambers and it developed that on the morning after the killing, Mrs. Bell had given the police a statement in which she said she was in another room at the time of the shooting, heard the shots, and on going into the room where the shooting occurred, observed Fudge standing over his wife. On the same morning, she gave to the officers a second statement in which she said she was present in the room where the shooting occurred and observed Fudge go to his bedroom, return with a pistol in his hand, and fire four shots into the floor. Mrs. Bell had then said that she (the witness) begged Fudge not to shoot his wife; that Mrs. Fudge had said, “Don’t beg him, let him shoot me one time”, and that appellant then fired the last shot which struck the wife in the chest area. Mrs. Bell was the only witness who purportedly observed the shooting, and the State had placed her on the stand for the purpose of establishing malice on the part of appellant. Her testimony was thus essential to the charge of second degree murder. Obviously, the prosecutor had expected Mrs. Bell to testify in accordance with her second statement; it developed that her testimony was not wholly in accord with either statement, but more or less a part of one and a part of the other. The court finally announced that it would permit the State to inquire of the witness if she made a statement “that she wasn’t in the room and didn’t see it and did she make another statement that she was in the room and did see it and that she saw James shoot her.” Back in the courtroom, the prosecutor interrogated Mrs. Bell, and while the witness admitted her signature, she denied some of the matters included in the statement; for instance, she denied that she had stated that she was in another room, heard three or four shots, went back into the room (where the shooting occurred) and saw appellant standing with a gun in his hand and Mrs. Fudge lying on the floor. She also denied making the statement that Fudge had walked into the room, shot four times into the floor, and that she (the witness) had begged him not to shoot Mrs. Fudge.

Appellant contends that the court erred in permitting the State to impeach its own witness; that the State could not have been surprised because appellant had already given two versions of events occurring, before she ever testified.

It does not appear necessary to discuss this contention, for even if error occurred, we find no prejudice. Of course, we do not reverse unless prejudicial error is shown. Keathley v. Yates, 232 Ark. 473, 338 S.W. 2d 335. Assuming, without deciding, that the court erred in permitting the State to attempt to impeach the testimony of its own witness, we cannot see how Fudge was prejudiced. At the conclusion of the testimony, appellant moved to dismiss and the court granted the motion to dismiss the charge insofar as murder in the second degree was concerned, reducing the charge, to involuntary manslaughter. That offense is defined by Ark. Stat. Ann. § 41-2209 (Repl. 1964) as follows:

“INVOLUNTARY MANSLAUGHTER DEFINED. —If the killing be in the commission of an unlawful act, without malice, and without the means calculated to produce death, or in the prosecution of a lawful act, done without due caution and circumspection, it shall be manslaughter.”

Even if we look at the testimony from the standpoint most favorable to appellant, there was ample and sufficient evidence for the jury to find that he had committed the crime of involuntary manslaughter. In fact, appellant’s own statement to the officers (and it is not contended here that such was involuntarily made) is potent evidence to support the reduced charge. From the statement:

“Last night I had been over to my aunts house where I had drank Vi of Vi pint of whisky and I drank one can of beer. I got home about a quarter of one and my wife was giving a card game. I walked in and said yall break the card game up. My wife then told me that I never let her have any fun. I told her for them to break it up right now. I said to myself that I know how to break it up and I went to my bed room and loaded my gun and came back and shot either 4 or 5 times into the floor. After I shot 4 or 5 times in the floor people started moving around. My wife told them that they didn’t have to go cause I wouldn’t shoot nobody she said I was only trying to scare her. I then shot one shot into the middle of the table or I though[t] I shot the table and my wife fell to the floor and said 'Oh you shot me.’ ”

We hold that no prejudicial error was committed and that the evidence was sufficient to support the jury verdict.

Affirmed.

      From the record:
      “Q Do you recall giving a statement to Detective Bobby Thomas on that same morning in which you said that James Fudge came in, went in the bedroom and came back with a pistol in his hand and fired four shots in the floor, you begged him not to shoot Dorothy, she said ‘don’t beg him, Lela, let him shoot me one time,’ he then fired the gun and the bullet struck Dorothy in the chest area; she was standing up and fell down by the couch and a lot of blood was coming from Dorothy; Dorothy then said to you and Pearl Butler, ‘Help me. James done shot me,’ and then James lefL the room and in a minute he came back and he didn’t have the gun and at that point he picked Dorothy up and carried her out the front door. Do you remember giving that statement to the Little Rock Police Department?
      A No. That wasn’t my statement. I don’t remember.”


text:
    Mahlon Douglas REED v. STATE of Arkansas
    CR 73-99
    498 S.W. 2d 877
    Opinion delivered September 17, 1973

      Henry S. Wilson, for appellant.

      Jim Guy Tucker, Atty. Gen., by: James W. Atkins, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

Reed was convicted of burglary and grand larceny and was sentenced to 15 years in prison upon each charge. For reversal he contends that his confession should not have been admitted in evidence, because the officers who obtained the confession did not fully inform him of his constitutional rights.

That contentiom must be sustained. Before questioning Reed one of the officers read a statement of rights from a printed form, which included this declaration: “You have the right to consult an attorney before making any statement or answering any question, and you may have him present with you during questioning.” Reed was also told that the court would appoint an attorney for him if he could not afford one, but the officer readily admitted that by the latter statement he merely indicated to Reed that if he did not have an attorney before he went to trial the court would appoint one for him.

The officer’s statement of Reed’s rights was fatally defective in that it failed to inform Reed that he was entitled to the services of an appointed attorney at the time of the interrogation. That precise point was carefully explained in Miranda v. Arizona, 384 U.S. 436 1966):

In order fully to apprise a person interrogated of the extent of his rights under this system then, it is necessary to warn him not only that he has the right to consult with an attorney, but also that if he is indigent a lawyer will be appointed to represent him. Without this additional warning, the admonition of the right to consult with counsel would often be understood as meaning only that he can consult with a láwyer if he has one or has the funds to obtain one.
* # # #
This does not mean, as some have suggested, that each police station must have a “station house lawyer” present at all times to advise prisoners. It does mean, however, that if police propose to interrogate a person they must make known to him that he is entitled to a lawyer and that if he cannot afford one, a lawyer will be provided for him prior to any interrogation.

See also Moore v. State, 251 Ark. 436, 472 S.W. 2d 940 (1971).

Reversed.


text:
    Vernon Ray TAYLOR v. STATE of Arkansas
    CR 73-100
    498 S.W. 2d 876
    Opinion delivered September 17, 1973

      Charles W. Atkinson, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Philip M. Wilson, Asst. Atty. Gen., for appellee.
   Lyle Brown, Justice.

Appellant, along with his code-fendant, was convicted of robbery with a firearm and each was sentenced to serve fifteen years. After some delay in procedure an appeal was granted appellant. In the meantime, appellant having been committed to the penitentiary, asked for and was granted a Rule I hearing. The latter hearing was conducted, the Rule I petition was denied, and the trial court granted an appeal both from the judgment of conviction and from die adverse finding on the Rule I petition. Appellant advances three points for reversal, namely, (1) that his Rule I petition should have been granted and a new trial ordered, (2) that a motion for severance should have been made in his behalf, and (3) that instruction number seven was erroneous.

As to the Point I, we think the trial court did not err in refusing to grant a new trial. The point is based on the testimony of the codefendant at the Rule I hearing to the effect that appellant had nothing to do with the robbery. Appellant implicated himself at that hearing because he testified: “I was aiding and abetting is what I’d call it... that’s what my job was”. That was exactly the theory of the State at the trial — that the codefendant went inside the liquor store with the gun and that appellant was on the lookout just outside the store. That testimony corresponded with the testimony of the codefendant to the effect that appellant had on a halloween mask.

Appellant classified his codefendant’s testimony at the Rule I hearing as newly discovered evidence. His codefendant made an affidavit prior to the Rule I hearing which corresponded with the codefendant’s testimony at the hearing. That affidavit was executed some nineteen months after the original trial. In other words, notwithstanding these two men were in * the penitentiary together, the so-called newly discovered evidence did not come to surface for nearly two years and just prior to the Rule I hearing. Furthermore, even appellant concedes that the affidavit did not entirely exonerate him. In fact, the affidavit put appellant at the scene of the crime wearing a mask. Finally, it is hardly believable that the codefendant would have testified at the original trial in the same manner as he did at the Rule I hearing; his position at the time of trial was that he had nothing whatsoever to do with the crime.

Appellant’s second point — that a motion for severance should have been granted — is likewise without merit. Appellant contends that he asked his court-appointed attorney, just prior to the trial, to seek a severance from his codefendant. Appellant’s codefendant said he heard no such conversation. The trial court remarked that appellant’s attorney asked for a continuance and it was granted. The trial court further stated that no mention was made to him of a severance. The trial court apparently rejected the veracity of appellant on this point and we cannot say it was error. Additionally, just what advantage could have resulted in a severance is hardly perceivable under the state of the record.

Appellant’s insistence that instruction seven was erroneous is likewise without merit. The instruction told the jury that the defendants could not be convicted on the testimony of an accomplice; that in addition there must be substantial evidence to corroborate that testimony. (The court was referring to the testimony of a young woman who was arrested as an accomplice.) It is true the court did not define the term “accomplice” but on the other hand there was no request for such a definition. Additionally, there was no objection made to the instruction given.

Affirmed.