Thom v. State, 5471

• Decision Date: 02 March 1970
• Docket Number: No. 5471,5471
• Citation: 248 Ark. 180,450 S.W.2d 550
• Parties: Raymon THOM, Jr., alias Raimounds Vachiers, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 550

450 S.W.2d 550

248 Ark. 180

Raymon THOM, Jr., alias Raimounds Vachiers, Appellant, v. STATE of Arkansas, Appellee.

No. 5471.

Supreme Court of Arkansas.

March 2, 1970.

James R. Hannah, Searcy, for appellant.

Joe Purcell, Atty. Gen., Don Langston, Mike Wilson, Asst. Attys. Gen., Little Rock, for appellee.

BYRD, Justice.

Appellant Raymon Thom, Jr., alias Raimounds Vachiers, was by information charged with (1) burglary of the Goff Service Station in Beebe; (2) petty larceny of $20 in money from the Goff Service Station; (3) burglary of the Pruitt Grocery Store in McRae; (4) grand larceny in the taking and carrying away of a quantity of groceries from the Pruitt Grocery Store; and since he had been convicted of second degree burglary in Indiana in 1962, and two counts of burglary and one count of grand larceny in Sebastian and Scott Counties, Arkansas, in 1966, the charges here were filed under the habitual criminal statute, Ark.Stat.Ann. § 43--2328 (Supp.1969). Appellant admitted the previous convictions and upon a jury trial was found guilty upon the counts of burglary and larceny. Pursuant to Ark.Stat.Ann. § 43--2328(3), the trial court fixed the penalty upon the felony charges at 21 years each, said sentences to run cumulatively to each other.

For reversal, appellant contends that the trial court erred in failing to suppress evidence seized from his automobile without a search warrant; that the trial court erred in invoking Ark.Stat.Ann. § 43--2328(3); that appellant's sentence constitutes cruel and unusual punishment; and that the trial court erred in giving an instruction on unexplained possession of recently stolen property.

The record shows that Mr. Ben Wall, city marshal of Beebe, Arkansas, observed a white car parked between the tanks and the front door of the Goff Service Station about 4:00 A.M. on March 21, 1969. As the city marshal pulled in behind the automobile to see the license number he noticed somebody inside the station. When his automobile lights illuminated the inside of the station he saw appellant tampering with the cigarette machine. When appellant saw the city marshal he ran out through the grease room overhead door and disappeared behind the station. Although the city marshal gave chase for some 200 yards he was unable to apprehend appellant. The city marshal then notified other law enforcement officials and caused the white automobile to be towed to Baker Chevrolet Co.

Mr. Adrian Woodruff, the chief deputy sheriff of White County, while driving north on Highway 67 business route coming into Beebe, drove by Lemon Street and observed appellant coming out of a fence row onto the street. He immediately recognized him from the description given by the city marshal.

About the time appellant was apprehended by Officer Woodruff, Mr. Tommy Pruitt, a McRae grocer, discovered that his store had been burglarized and a quantity of merchandise (approximately $150 to $170 worth) was missing. The officers in searching the white automobile at Baker Chevrolet discovered a billfold containing a pink slip and title to the car in appellant's name. In addition there were grocery items in the back seat and trunk of the car which Mr. Pruitt identified as coming from his grocery store and which he valued from $150 to $170.

POINT 1: We find no merit in appellant's contention that the trial court should have suppressed evidence obtained from the search of the automobile. The Fourth Amendment to the United States Constitution reads: 'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, * * *.' Sometimes an automobile takes on the characteristics of a man's castle. Other times an automobile takes on the characteristic of an overcoat--that is, it is movable and can be discarded by the possessor at will. If appellant in his endeavors to avoid the clutches...