Caton v. State, 5659

Citation252 Ark. 420,479 S.W.2d 537
Decision Date01 May 1972
Docket NumberNo. 5659,5659
CourtSupreme Court of Arkansas
PartiesFrank Allen CATON and Bernie Hudson Headley, Appellants, v. STATE of Arkansas, Appellee.

Page 537

479 S.W.2d 537
252 Ark. 420
Frank Allen CATON and Bernie Hudson Headley, Appellants,
STATE of Arkansas, Appellee.
No. 5659.
Supreme Court of Arkansas.
May 1, 1972.

[252 Ark. 421]

Page 539

Wiggins & Christian, Ft. Smith, for appellants.

Ray Thornton, Atty. Gen. by Milton Lueken, Asst. Atty. Gen., Little Rock, for appellee.

FOGLEMAN, Justice.

Appellants were convicted of grand larceny of merchandise of the value of more than $35 from the K Mart Shopping Center in Ft. Smith. Their appeal is based upon allegations that there was error in the admission into evidence of a stenographer's notebook seized by police from an automobile owned by appellant Headley, in denying their requested instruction on the crime of shoplifting defined by Ark.Stat.Ann. § 41--3939 (Repl.1964) and in failing to direct a verdict for appellant Headley.

George Alonzo, a security guard at K Mart saw two females taking merchandise from a pants suit rack in the ladies' wear department and putting it first on another rack and then in their purses. He saw them take in this manner at least four items of merchandise, one of which was yellow. This department was near the refund [252 Ark. 422] desk. He watched them and saw that they did not leave the store from this department but went into the patio department. He came downstairs and went to the patio department. While he was doing this he lost sight of the women for about 10 seconds, but said that it would not have been possible for them to have paid for the merchandise in that interval. When he saw them again, they were entering a 1/2-ton pickup truck, which was in motion. He was positive that he saw one of these women behind the steering wheel and at least one other woman whom he could not then recognize. He could not tell how many passengers were in the truck cab. The truck proceeded from one side of the shopping center parking lot to the other, moving in what Alonzo described as an 'S,' and coming back and stopping in the lot near the food department at the opposite end of the building from the patio area. Alonzo was walking along the sidewalk, keeping the truck under surveillance. He picked up

Page 540

the chief security guard, identified as Mr. Smith, as he passed the front door. Together they proceeded to a point near that where the truck had been parked and saw a man, later identified as Frank Caton, get out of the truck and carry a brown paper bag, containing at least two colored items, toward the entrance to the food department. Alonzo saw Caton enter the food department, turn to his left and proceed toward the area where the refund desk was located. Alonzo and Smith approached the truck, and Smith went to the driver's side and Alonzo to the other side. Alonzo opened the door, identified himself and asked the female occupants if they minded coming inside to discuss the merchandise they might have forgotten to pay for. He said that the two young ladies he had seen in the store, an elderly lady and a child were then in the truck. The women denied having been in the store, and one of them threatened to call the police. Alonzo saw the top half of a yellow pants suit on the floorboard, along with some brown paper bags. He picked it up and noticed that it bore a two-part K Mart ticket. He said that this indicated that the item had not been paid for, since one portion was to be removed by the store employee to whom payment was made. The driver of the truck started it and left the area. As the truck was leaving Smith wrote down the vehicle license number--Ala ZP16799. Alonzo [252 Ark. 423] and Smith then went through the food department to the service desk, from which Smith called the police. Alonzo found Caton at the refund desk, attempting to negotiate with the clerk there for an exchange or refund on a pants suit and a dress. Alonzo asked Caton for a sales receipt for the merchandise and for identification. Caton produced an Alabama driver's license issued to B. H. Headley. Upon inquiry by Alonzo, Caton stated that he lived on Route 2, Ft. Smith, that his wife was at home, that she was blond and that she was not one of the ladies Alonzo had seen in the pickup truck. Caton kept insisting that he was in a hurry to get to the automotive department where he said his car was being repaired, and asked if he was under arrest. When Alonzo replied in the negative, Caton left through the front door, and when Alonzo called to him and asked if he wanted to take the merchandise, Caton replied that he thought he would sue the store for harassment or false arrest. Alonzo called the auto department and found that one B. H. Headley had a car there, and obtained the make and license number. Alonzo then called the police.

An employee in the K Mart automotive center had sold some tires to Headley, who said that he was from Alabama. Headley was accompanied by Caton at the time of the purchase, and both stood out by the car and waited for the tires to be mounted on Headley's 1966 Rambler automobile. A little later both left, but returned to ask if the car was ready. At the time, the wheels were being balanced. Caton paid for the tires and certain work done on the car.

Charles Hill, a Ft. Smith uniformed police patrolman, received two calls pertaining to these incidents, and went to the shopping center where he made contact with the security guard. They went to the automotive department and found Caton standing near the car which had been described. Hill asked if Caton were the owner. Caton said he was not but that the owner was inside. Headley then walked out and admitted that the car was his, but denied having a driver's license when asked for identification, stating that Caton was doing the driving. He did display a registration certificate bearing [252 Ark. 424] his name and the same license number as that given Officer Hill as displayed on the pickup truck. When Hill stated that this was not the registration certificate for the car, Headley stated that it was for his truck, and said that his wife and another lady had gone in it to get something to eat. He said that they might return or might go to Alabama, but did not know the route they would travel, where they would spend the night or where he would meet them. Headley then asked Caton to walk around

Page 541

the building and see if the vehicle was there. Caton asked 'Which one?' and Headley told him the pickup truck. Caton walked to the corner of the store, looked into the parking lot and reported that the vehicle wasn't there. During the conversation among Hill, Headley and Caton, Headley told the officer that the party had spent the previous night in Oklahoma City, arrived in Ft. Smith that afternoon and had come to K Mart to buy tires. He said that he had no relatives in Oklahoma City and that the party was just on a tour. He said that they had not been to any place in Ft. Smith except the K Mart center.

O. A. Davis, a police detective, who had been called by Hill, came to the automotive center and placed Headley and Caton under arrest. He searched their vehicle at the time but did not see a stenographic notebook which was handed to him a few minutes later by Officer Jones, whom Davis had directed to drive the Rambler to police headquarters. Davis saw Jones when he found the notebook in the front seat of the car.

Appellants requested an instruction which would have advised the jury of the definition of the crime of shoplifting contained in Ark.Stat.Ann. § 41--3939 and permitted the jury to convict them of that offense which is a misdemeanor on first or second conviction and a felony on the third conviction. They contend that shoplifting is a lesser offense included within the charge of grand larceny made against them, and that the circuit judge was bound to give this instruction.

The information charges that appellants committed the crime of grand larceny in the following manner:

[252 Ark. 425] The said defendants, in the County, District and State aforesaid, on the 26 day of February, 1971, did unlawfully and feloniously steal, take and carry away merchandise of more than $35.00 in value the property of K Mart Shopping Center with the unlawful and felonious intent to convert the same to their own use and deprive the true owner thereof.

The pertinent portion of the shoplifting statute reads:

Any person who shall wilfully take possession of any goods, wares or merchandise offered for sale by any store or other mercantile establishment with the intention of converting the same to his own use without paying the purchase price thereof, shall be guilty of the offense of shoplifting and shall be punished by a fine of not less than Twenty-Five ($25.00) Dollars and not more than Fifty ($50.00) Dollars and or imprisonment of not less than five (5) days and not more than thirty (30) days, or both for the first offense.

This court has zealously protected the right of an accused to have the jury instructed on lesser offenses included in a greater offense charged. We have consistently held that a trial court commits reversible error when it refuses to give a correct instruction defining a lesser included offense and its punishment when there is testimony on which the defendant might be found guilty of the lesser rather than the greater offense. Walker v. State, 239 Ark. 172, 388 S.W.2d 13; Bailey v. State, 206 Ark. 121, 173 S.W.2d 1010; Smith v. State, 150 Ark. 193, 233 S.W. 1081; Allison v. State, 74 Ark. 444, 86 S.W. 409; Davis v. State, 72 Ark. 569, 82 S.W. 167. We have been so careful to see that a jury has an opportunity to pass upon lesser offenses as well as the greater one charged that we have held that it is not prejudicial error to give an instruction which permits the jury to find a defendant guilty of a lower offense than that charged, even when the defendant objects, because the evidence shows him to be guilty of the higher offense or of nothing at all. Kurck v. State, 235 Ark. 688, 362 S.W.2d 713, cert. denied,...

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