Clay v. State
| Decision Date | 08 April 1963 |
| Docket Number | No. 5066,5066 |
| Citation | 236 Ark. 398,366 S.W.2d 299 |
| Parties | Sam Henry CLAY, Appellant, v. STATE of Arkansas, Appellee. |
| Court | Arkansas Supreme Court |
Shaver & Shaver, Wynne, for appellant.
Bruce Bennett, Atty. Gen., By Richard B. Adkisson, Asst. Atty. Gen., Little Rock, for appellee.
Sam Henry Clay was charged with the crime of burglary, the information alleging that Clay unlawfully broke and entered a house belonging to the prosecuting witness herein, and located in the city of Wynne, with the intention to commit a felony. After the court appointed counsel to represent appellant, a motion was filed for a Bill of Particulars, and the Prosecuting Attorney provided the information that the felony referred to was the offense of rape and/or sodomy. A plea of not guilty was entered and on trial Clay was found guilty of the offense of burglary, but the jury was unable to agree upon his punishment. Thereafter, the court fixed the punishment, and sentenced Clay to a term of 21 years in the Arkansas State Penitentiary. From the judgment so entered, appellant brings this appeal. For reversal, two points are relied upon, first, that the evidence is insufficient to show that appellant unlawfully broke into or entered the home of the prosecutrix, and second, the evidence is insufficient to show the criminal intent necessary to convict appellant of burglary. These points will necessarily have to be discussed together as the evidence offered by the state bears upon each separate contention.
The testimony reflects that the prosecuting witness received a telephone call on a Thursday afternoon, the party at the other end of the line inquiring if he could speak to a Miss Gatssinger. Upon being informed that no one lived at the residence by that name, the party said, 'No, don't you remember, I talked to you in the saloon yesterday.' The prosecutrix then advised the caller that he had the wrong number, and hung up.
The prosecuting witness awakened around 6:10 on the morning of March 4, 1962. 1 She heard someone walk up the steps to the house, which she took to be the paper boy, and, thinking nothing about it, 'dozed for about 10 more minutes.' She awakened of a sudden and turned on her light. She stated that a glove was on the hand that she saw, and when she yelled, 'Who are you, and what do you want?', the person fled. She then observed that the front door was ajar, but did not see anyone. Around two hours later, the witness received a telephone call, and the person on the telephone apologized for coming to her house, for doing what 'he had did,' and stated he was sorry and meant no harm, but 'had to see' the prosecutrix. He inquired if she would meet him somewhere, and made other remarks, to which she replied, 'You get across town with your kind.' The witness testified that she recognized the voice of the caller as the same man who had called on Thursday; immediately thereafter, she notified the Chief of Police and gave him the information which has been herein related.
The witness stated that on the same day, she found on the steering wheel of her car a paper (gross receipts tax monthly report form) which contained the following item of printing, 'I am playing this while you are sleeping' (referring to radio). She also stated that her car would not start because the battery had 'run down.' This paper also was turned over to the Police Department.
The evidence reflects that on March 7, the prosecuting witness received a paper back book through the mail, entitled 'Another Kind of Love.' The inside cover and first page contained filthy and obscene language which had been printed by pencil, and which included the following phrase, 'The same thing Laura (one of the characters in the book) want to--do-to--this other girl is what I want to do to you _____' (Here appeared the given name of the prosecuting witness). Enclosed in the book was a printed letter which requested her to meet the writer of the letter at the ice plant. This book was likewise turned over to the authorities. About a month later, appellant was taken into custody. Among his personal effects was a card which had been issued to him by the Cross County Department of Public Welfare entitling appellant to food assistance. On the back of this card appeared a telephone number 2 which Kenneth Shaw, the Chief of Police at Wynne, testified was the telephone number of the prosecuting witness. Other exhibits were offered in evidence which were taken from Clay's personal effects, but a discussion of these exhibits is not necessary in determining whether there was sufficient evidence to sustain the conviction.
Clay made a statement to Shaw in the presence of State Patrolman W. A. Tudor, which was reduced to writing and offered in evidence at the trial. According to these policeman, the statement was voluntarily made; Clay was not threatened, abused or coerced in any manner, and no promises were made to induce the giving of the statement. The officers testified that appellant was advised that he could have an attorney, but Clay declined the offer. In his statement, which was introduced into evidence, Clay related that he went to the home of the prosecuting witness on a Saturday night, sat in her car for a while (which was parked in the driveway), and at that time printed the words on the paper which she subsequently found on the steering wheel. He stated that the next morning (about 8:00 o'clock) he went back to the house and knocked on the front door, and upon doing so, the door 'came open because it wasn't shut good.' He said that he 'stuck' his head in the door, but turned around and left when the prosecutrix came to the head of the stairs. He then stated that he called her on the telephone and told her that he was sorry for coming to the house; that he kept thinking about her and 'wanted to be with her,' and on the next day, he printed a letter which he sent to her, together with the book heretofore mentioned. Clay admitted printing words to the effect that he desired to commit the act of sodomy upon her but stated, 'I didn't really mean all of this stuff.' Subsequently, according to the testimony of the police chief, Clay denied that he had gotten into the car belonging to the prosecutrix or that he had gone to her house. Appellant subsequently told the officers that a white man had told him to write the letter and...
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