Bailey v. State

• Decision Date: 01 June 1964
• Docket Number: No. 5047,5047
• Citation: 238 Ark. 210,381 S.W.2d 467
• Parties: Luther BAILEY, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 467

381 S.W.2d 467

238 Ark. 210

Luther BAILEY, Appellant, v. STATE of Arkansas, Appellee.

No. 5047.

Supreme Court of Arkansas.

June 1, 1964.

Rehearing Denied Sept. 14, 1964.

E. V. Trimble and C. C. Mercer, Jr., Little Rock, for appellant.

Bruce Bennett, Atty. Gen., by Jack L. Lessenberry, Chief Asst. Atty. Gen., Little Rock, for appellee.

HARRIS, Chief Justice.

This case has been before the courts on numerous occasions, ¹ and is now here for the second time on the merits. Appellant was convicted of the crime of rape, and sentenced to suffer the punishment of death. Some twenty-five assignments of error are listed in the motion for new trial, though only one of these is argued by appellant in his brief.

Four of these assignments deal with the sufficiency of the evidence. The prosecuting witness, a white woman, 49 years of age at the time of the alleged crime, testified that she retired at her home in Little Rock about 9:30 P.M., and was awakened about 12:30 A.M. by noises. As she started through the kitchen, investigating the sounds, a man caught hold of her arm; she began to scream, but he choked her and pressed a knife to her throat. The intruder, according to her testimony, stated that he wanted some money, and she replied that she would go get the money if he would let her go. He pushed her into the bedroom, held the knife to her throat, and forcibly had sexual intercourse with her. She begged him to leave her alone and promised to give him what money and jewelry she had. She first gave him $5.00 from her billfold, but this did not appease him. As the intruder pulled up his pants, he lost his billfold, and she got matches in order for him to look for it. In the light, the prosecutrix determined that he was a Negro. He found the billfold, which she noticed was brown, with a yellow and the Air Force insignia on it. The prosecutrix was then forced to give him her purse containing $190.00, but he would not take the jewelry, stating, 'he wasn't going to take that and have somebody catch him with that.' After taking the purse, the man cut the telephone line, raped her again, and then left. She immediately ran next door, and notified her neighbor, and, shortly thereafter, her daughter and the police arrived. She subsequently identified appellant, Luther Bailey, as the perpetrator of the crimes. Actually, this testimony in itself was sufficient to sustain the charge, as we have held that corroboration is not necessary in a rape case. McDonald v. State, 225 Ark. 38, 279 S.W.2d 44. However, there are many additional circumstances which forcefully point to appellant's guilt. For instance, the officers found a folder on the floor at the foot of the bed, containing various identification cards bearing the name of Luther Bailey. The injuries to the prosecutrix were plainly visible, and the officers found a cut screen, muddy footprints in the house, a severed telephone line, and they also determined that the master electrical switch had been turned off. With othr officers, Deputy Sheriff Mose Turner drove to Woodson, near Little Rock, where Bailey lived, and went to his home. The officers arrived there between 2:30 and 3:00 A.M., but Bailey's wife reported that he was not at home. All of the officers then left except Turner and one othr officer, who remained at the house for over an hour. Subsequently, Turner left to locate a telephone, and while driving north toward Little Rock, the officer met Bailey, who was traveling south. Turner recognized him, turned around, and had Bailey stop the car at Woodson. A search of Bailey's person revealed $133.00 in bills, together with a man's billfold bearing an Air Force insignia. An examination of his automobile revealed, inter alia, a paring knife, found in the glove compartment, and a ladies' purse, found under the front seat. In the purse were some check stubs, car keys, pictures, and women's hair clamps, and the check stubs bore the name of the prosecuting witness. It is evidence that the testimony was more than adequate to sustain the conviction.

Only three points are argued in the brief, these being, first, that Negroes were intentionally, deliberately, and systematically limited in the selection of the petit jury panel; second, that Negroes have been excluded from serving as jury commissioners for the past 50 years; ² and third, that Bailey was not retried within nine months as ordered and directed by the United States Eighth Circuit Court of Appeals.

The record does not reveal any objection interposed to the jury, but if otherwise, we certainly could not say error was committed as urged, since no motion to quash the panel was filed. The only reference to the jury was just prior to the voir dire when the defense counsel requested a subpoena duces tecum for the record and length of service of the jury panel during the term of court. This information was then supplied after which the defense requested a drawn and struck jury, and the names were placed in the box and drawn from the box. The record is absolutely barren as far as any other reference to the jury is concerned, except for the names of those who served on the trial jury. There appears no examination of jury commissioners, or of members of the petit jury panel. It would therefore appear that appellant must have been satisfied with the jury, else a record would have been made for the purpose of establishing discrimination.

We are unable to understand the reason for the remaining point argued by appellant, since this question has been clearly answered contrary to the contention made. In Bailey v. Henslee, 8 Cir., 1961, 287 F.2d 936, 938-939, the Circuit Court of Appeals for the Eighth Circuit held that Bailey had established an unrebutted prima facie case of limitation of members of his race in the selection of the jury which convicted him at the original trial. The opinion of the court concluded as follows:

'The State of Arkansas is entitled to a reasonable time within which to retry this defendant for the crime charged against him. Pending a retrial by the State, the District Court is directed to grant to stay of execution. If he is retried, the Court is directed to enter a dismissal of Bailey's present petition for release on habeas corpus. If he is not retried within nine months from the filing date of this opinion, the District Court is directed to grant Bailey's petition for a writ of habeas corpus.'

The case was then remanded for further proceedings and the opinion of the court was filed in the office of the clerk of the Circuit Court of Appeals on March 17, 1961. A petition for rehearing was thereafter filed by Henslee ³ and denied on May 4, 1961. Thereafter the mandate was sent down to the district court and was received on May 17, 1961.

That court, in compliance with the opinion and mandate, issued its order for stay of execution, and further stated:

'Provided, however, that if Petitioner is retried within nine months from May 17, 1961, the filing date of said opinion of the Eighth Circuit Court of Appeals in the clerk's office of the United States District Court for the Eastern District of Arkansas, for the crime of rape allegedly committed by him in Pulaski County, Arkansas, on or about June 14, 1956, respondent may apply to this court for dismissal of this petition for a writ of habeas corpus and this stay of proceedings:

'Provided, further, that should Petitioner not be retried within said period, writ of habeas corpus will then be granted.'

The Pulaski County Circuit Court, after earlier appointing counsel to replace Bailey's counsel who had moved out of the state, set the second trial for January 29, 1962, and the trial did commence on that date. On the same day that the Circuit Court set the case, Bailey's attorneys filed in the Federal District Court for the Eastern District a 'Petition for Writ of Prohibition and Mandamus,' and the next day filed an application for a writ of habeas corpus. The grounds asserted in both applications were that Bailey was not retried within the time specified by the Circuit Court of Appeals, since the nine month period 'from March 17, 1961, had expired on December 17, 1961.' The application was denied by the District Court, and this action was upheld by the Circuit Court of Appeals. After discussing the matter somewhat at length, that court, in Bailey v. Henslee, 8 Cir., 309 F.2d 840, said:

'Our opinion could not operate to command any legal action in the proceedings until it ripened into a judgment formally communicated to the district court. It then follows, it seems to us, that the nine month period ran only from the date our mandate and opinion were filed with that court. Then and only then did they become effective. Then and only then did formal notice come to the district court of the result of the appeal to this court. Then and only then did the stay terminate which, under Rule 38(a)(1), F.R.Cr.P., was in effect pending the appeal. Compare also Rule 35, F.R.Cr.P. The opinion, of course, was made available earlier to counsel under this court's Rule 14(c) and to the district court when copies of the 'slip opinion were routinely delivered to them. Similarly, our judgment was entered in our own records under our Rule 14(b) on the date it was filed with our clerk. But this court, as does any appellate court, acts formally and officially only through its mandate. * * * We therefore construe our mandate to the effect that the designated period runs from the date of the filing of the mandate and opinion with the district court. * * * The beginning date in this case was thus May 17, 1961. The record shows that the second state trial began well within nine months from that date. The denial of the current application for the writ of habeas corpus was, as a consequence, proper.'

Assignment 7 of the motion for new trial relates to a motion for a change of venue. Appellant filed a petition for change of venue and set up that he had caused...