Bennett v. State

Decision Date13 March 1972
Docket NumberNo. 5692,5692
Citation477 S.W.2d 497,252 Ark. 128
PartiesPaul Stephen BENNETT, Appellant, v. STATE of Arkansas, Appellee.
CourtArkansas Supreme Court

Carpenter, Finch & McArthur, Little Rock, for appellant.

Ray Thornton, Atty. Gen., John D. Bridgforth, Asst. Atty. Gen., Little Rock, for appellee.

HOLT, Justice.

The appellant was charged by felony information with the crime of the sale of marihuana in violation of Act 590 of 1971 (Ark.Stat.Ann. §§ 82--2601--38 (Supp.1971)). The trial court, sitting as a jury, found appellant guilty and sentenced him to one year imprisonment in the State Penitentiary and ordered that appellant serve one-third of this sentence before becoming eligible for parole. For reversal of that judgment the appellant, through court-appointed appellate counsel, contends that the alleged violation was a misdemeanor and, therefore, the court erred in sentencing him to the penitentiary since the Act does not provide for imprisonment in the penitentiary. In other words, the appellant asserts that the alleged violation of this Act constitutes a misdemeanor and not a felony. The pertinent penal provision of this Act (§ 82--2617) reads:

'(1) Any person who violates this subsection with respect to:

(i) a controlled substance classified in Schedule I or II which is a narcotic drug, is guilty of a crime and upon conviction may be imprisoned for not more than fifteen (15) years or fined not more than $25,000, or both; * * *.'

The statutory definition as to what constitutes a felony or a misdemeanor has existed since 1869. Legislation enacted that year provided that:

'Public offenses are felonies and misdemeanors' Ark.Stat.Ann. § 41--102 (Repl.1964):

'A felony is an offense of which the punishment is death or confinement in the penitentiary' § 41--103;

'All other public offenses are misdemeanors' § 41--104.

These definitions have remained unchanged. The words as to imprisonment or confinement 'in the penitentiary' are noticeably and conspicuously missing from the pertinent penal provision of this 1971 Act. Even so, appellee argues that the use of the term 'crime' together with the harsh penalty provided in the penal provision in this Act requires that we construe the Act to read that the legislature intended this alleged violation to be a felony. However, we have held that the words 'misdemeanor' and 'crime' are synonymous terms even though the latter be 'of a deeper and more atrocious dye' and the former a 'gentler name.' Hardaway v. State, 237 Ark. 732, 375 S.W.2d 676 (1964); Rector v. State, 6 Ark. 187 (1845). Another well established rule of law with respect to statutory construction is that penal provisions are strictly construed and 'nothing will be taken as intended which is not clearly expressed and all doubts must be resolved in favor of the defendant.' Shepherd v. State, 246 Ark. 744, 439 S.W.2d 627 (1969); Thompson, Commissioner of Revenues v. Continental Southern Lines, Inc., 222 Ark. 108, 257 S.W.2d 375 (1953); State v. Arkadelphia Lumber Co., 70 Ark. 329, 67 S.W. 1011 (1902); Casey v. State, 53 Ark. 334, 14 S.W. 90 (1890).

For more than 102 years the definition as to what constitutes a felony or a misdemeanor has existed by statutory law in plain and unambiguous language. Further, these definitions are recognized by our case law. McIlwain v. State, 226 Ark. 818 294 S.W.2d 350 (1956); Allgood v. State, 206 Ark. 699, 177 S.W.2d 928 (1944); Burrell v. State, 203 Ark, 1124, 160 S.W.2d 218 (1942); Cheaney v. State, 36 Ark. 74 (1880). In Cheaney we find this pertinent language:

'In all our penal legislation, when the word imprisonment only is used, it is understood to mean imprisonment in a county jail or local prison, and when the legislature has intended imprisonment in the penitentiary, it has been so expressed.'

In the case at bar, in view of our statutory definitions and the recognition of their meaning by our decisions, we cannot say that the alleged violation of Act 590 of 1971 constitutes a felony.

Furthermore, we observe that within the past month our legislature in a special session amended Act 590 of 1971, including the penalty provision before us. The title to this amendatory act (Act 67 of 1972, First Extraordinary Session) provides, inter alia, that it is: 'An Act * * * to clarify penalties * * *.' The emergency clause, Section 9, reads: 'It is hereby found and determined by the General Assembly that there is considerable confusion regarding the application and effect of Act 590 of 1971; that the penalties prescribed in Act 590 are in need of clarification; * * *.' In the amendatory act of 1972 the legislature significantly added the word 'felony' and provided for imprisonment 'in the state penitentiary.' The legislature also increased the penalty for this alleged violation from 15 to 30 years imprisonment.

The appellant also asserts that the court erred in refusing to compel the State to divulge the identity of two informers. The State presented an undercover investigator as a witness who testified that he went to appellant's apartment accompanied by two confidential informers; that after a few minutes conversation, one of the informers told appellant that 'we wanted some grass.' Thereupon the appellant handed to the undercover agent a bag of marihuana for which he was paid $20 by the agent. Appellant contends that the refusal to require the State's witness to divulge the names of the two individuals who accompanied him was prejudicial error because: 'I (court-appointed trial counsel) can't properly defend my client, and it will keep me from finding any contradictory testimony.'

Generally, whether the privilege of nondisclosure of an informer's identity applies depends upon whether the informer was present and participated in the alleged illegal transaction with which the defendant is charged, or whether the informer was 'merely' one who supplied only a 'lead' to law enforcement officers to assist them in the investigation of a crime. The identity of an informer is required in certain instances, particularly where he was present as a participant. Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957); United States v. Barnett, 418 F.2d 309 (6th Cir. 1969); Sorrentino v. United States, 163 F.2d 627 (9th Cir. 1947); Portomene v. United States, 221 F.2d 582 (5th Cir. 1955); Gilmore v. United States, 256 F.2d 565 (5th Cir. 1958); Annot., 76 A.L.R.2d 287. See, also, 21 Am.Jur.2d Criminal Law § 225. The rationale is that where the informer is a witness to an illegal transaction, his testimony could be relevant to amplify, modify, or contradict the testimony of a government witness and, therefore, essential to a fair determination of the cause.

In the case at bar the appellant denied the accusation and the testimony of the State's witness. Therefore, the testimony of the agent's two companions during the alleged transaction could be relevant and material in contradiction of the State's evidence, as contended by appellant. In such a situation we find this apt language in Roviaro, supra: '* * * The desirability of calling John Doe as a witness, or at least interviewing him in preparation for trial, was a matter for the accused rather than the Government to decide.' In the case at bar it was prejudicial error to overrule appellant's request for the identity of these two witnesses which he sought for the purpose of determining 'any contradictory testimony.' It follows that the judgment is reversed and the cause remanded.

Reversed and remanded.

HARRIS, C.J., and FOGLEMAN, J., concur.

FOGLEMAN, Justice (concurring).

I do not agree that the legislature provided imprisonment up to 15 years and a fine of not more than $25,000 for a misdemeanor. I think the offense charged was a felony.

My reading of Rector 1 does not say the same thing to me it apparently does to the majority. To me it says: '. . . in common usage, the word 'crime' is made to denote such offenses as are of a deeper or more atrocious dye, while smaller faults, and omissions of less consequence are comprised under the gentler name of misdemeanors only.' As I read it, this means that 'crime,' in common usage, means something different from smaller offenses called misdemeanors.

Furthermore, the word crime is commonly used in our statutes to refer to felonies, so the words crime and misdemeanor cannot be taken to be synonymous. Such statutes include Art.Stat.Ann. §§ 41--108 (Repl.1964), providing for the defense of insanity in case of crime or misdemeanor, 41--109, making idiots incapable of crime or misdemeanor, 41--110, preventing trial of an insane person for crime or misdemeanor, 41--114, protecting a married woman from conviction of crime or misdemeanor when acting under coercion of her husband, 41--115, relating to drunkenness as an excuse for crime or misdemeanor, 41--117, protecting others who commit crimes or misdemeanors, 41--119, defining an accessory to a crime and 41--120, defining an accessory after the fact to a crime. In application of each of these statutes, we have always considered the word 'crime' to mean a felony, not a misdemeanor. The difference recognized is best demonstrated by the cases decided before the adoption of Ark.Stat.Ann. § 41--118, abolishing the distinction between principals and accessories before the fact and permitting those charged as...

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  • State v. Milligan
    • United States
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    ...v. United States, 394 F.2d 820 (9 Cir. 1968); Commonwealth v. Ennis, 301 N.E.2d 589, 591 (Mass.App.1973); Bennett v. State, 252 Ark. 128, 477 S.W.2d 497 (Sup.Ct.1972); State v. Godwin, 106 Ariz. 252, 475 P.2d 236 (Sup.Ct.1970). On the other hand, absent a strong showing of need, courts gene......
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