Boyette v. State, CR73--18

• Decision Date: 30 April 1973
• Docket Number: No. CR73--18,CR73--18
• Citation: 254 Ark. 320,493 S.W.2d 428
• Court: Arkansas Supreme Court
• Parties: Jerry BOYETTE, Appellant, v. STATE of Arkansas, Appellee.

Page 428

493 S.W.2d 428

254 Ark. 320

Jerry BOYETTE, Appellant, v. STATE of Arkansas, Appellee.

No. CR73--18.

Supreme Court of Arkansas.

April 30, 1973.

Louis W. Rosteck, Little Rock, for appellant.

Jim Guy Tucker, Atty. Gen. by O. H. Hargraves, Deputy Atty. Gen., Little Rock, for appellee.

HARRIS, Chief Justice.

Appellant, Jerry Boyette, was tried by the Pulaski Circuit Court (Fourth Division), sitting as a jury, on a charge of possessing stolen property, two air conditioners, was found guilty, and sentenced to five (5) years imprisonment in the Arkansas Department of Correction. From the judgment so entered, appellant brings this appeal. For reversal, three (3) points are asserted which we proceed to discuss, though not as separate points since they are closely related.

It is contended that the State failed to prove that appellant was in possession of alleged stolen goods. Ed Presley, a Pulaski County Deputy Sheriff, arrested Boyette on May 22, 1972, in the salvage yard of the Southwest Auction Company in Little Rock. This company was owned by Dick Emerson. Presley and another officer had driven by this location after receiving a tip, and they observed appellant unloading, from a U-Haul truck, three (3) cartons. They turned around, went back to the salvage yard, stopped, and observed Boyette in the back end of the truck, which contained about fifteen (15) more cartons, later proved to contain air conditioners. Emerson was present in the building but the officers did not see him do any unloading. They learned that a number of air conditioners belonging to Oklahoma Tire and Supply Company were missing from the company warehouse, and Detective Keith Rounsavall subsequently opened all the cartons and testified that they contained air conditioners. A rental contract bearing Boyette's name was found in the glove compartment of the truck, this contract reflecting that the truck had been rented on May 21, 1972, at 11:00 a.m., and was to be returned on May 22 (date of the arrest).

Charles Perkey, Assistant Manager of Oklahoma Tire and Supply Company, testified that sixty-three (63) air conditioners were missing from the company warehouse in Little Rock. The sheriff's office had taken several pictures of air conditioners, including close-ups of two (2) of the cartons found in the truck, these cartons containing air conditioners, and bearing the stock number, the model number, and serial numbers. The witness said that the stock at the warehouse had not been checked since March 14. Perkey did not actually see the air conditioners themselves, only the cartons, but he testified that the manufacturer places the serial number on the outside of the box as well as on the air conditioner itself. He said that the two (2) air conditioners constituting Exhibits 8 and 9 were of the value of $273.05.

At the conclusion of the State's case, counsel for appellant moved that the case be dismissed on the basis that the witnesses only saw some cartons which purportedly contained air conditioners; the motion was denied. In making this motion, it would appear that the testimony of Rounsavall was overlooked. ¹

Boyette testified that he had been acquainted with Emerson for several years, the latter operating a second-hand store, and holding an auction every other Friday night. Appellant stated that on the 21st of May, Emerson asked if he (Boyette) knew where Emerson could 'get some televisions' and Boyette told him that he did not. Further, Boyette testified:

'I told him I was going to Old Mexico, that I'd been down there and bought some pictures and stuff and then he wanted to know if I was going in my truck or what I was going to do. I told him I was going to rent a truck. He said, well he needed a used truck and that if I'd go with him that he'd pay part on a truck if I'd rent it and let him use it, so I did.'

The U-Haul truck was then rented. Still further, from the record:

'Well, I let him use the truck that day. He was going to move some stuff from the auction or something he'd bought or something, I don't know just what, he's going to move something, so I let him use the truck and the next morning when I go to pick up the truck, he told me that he had some stuff on there and we had to unload it. * * * Well, I takened the truck and go on over to his place of business and I sat over there and waited and waited and waited till he, he was a long time about getting there and I kept waiting, so I started to go back to his house to see what was the matter. About that time he come up over there and he wanted to know if I knew anybody that I could get to help unload them things. And I told him I did not.'

Boyette testified that he unloaded two (2) of the boxes which he assumed contained air conditioners, and that Emerson had also unloaded one (1) before the arrest was made. When asked by his attorney if he knew the merchandise had been stolen, Boyette responded:

'Well, from the way he was acting, I, I had it figured, but I didn't say nothing. I mean, he never did say nothing about it was stolen. I didn't ask him where he got it.' ²

It is argued that under the proof, Boyette was not guilty of possession. In his brief, appellant states:

'The question is--does the fact that the defendant was seen unloading some cardboard boxes and was inside the truck, constitute possession? It is candidly admitted that without some valid explanation, it might be. But, the defendant plausibly explained that he had let Dick Emerson use the rented truck the day before, and that he was not aware that the truck was loaded with anything until Dick Emerson told him the next day. He then took the truck to Dick Emerson's place of business and waited until Emerson arrived, and both started unloading the truck. There is nothing to dispute the defendant's testimony.'

That Boyette actually had possession of the stolen merchandise, of course, cannot be...