Copeland v. State, 4832

• Decision Date: 09 April 1956
• Docket Number: No. 4832,4832
• Citation: 226 Ark. 198,289 S.W.2d 524
• Parties: Joseph H. COPELAND, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 524

289 S.W.2d 524

226 Ark. 198

Joseph H. COPELAND, Appellant, v. STATE of Arkansas, Appellee.

No. 4832.

Supreme Court of Arkansas.

April 9, 1956.

Rehearing Denied May 14, 1956.

Nance & Nance, Marion, Mann & McCulloch, Forrest City, for appellant.

Tom Gentry, Atty. Gen., Thorp Thomas, Asst. Atty. Gen., for appellee.

McFADDIN, Justice.

Appellant was convicted of keeping a gambling house in violation of § 41-2001, Ark.Stats. His motion for new trial contains thirteen assignments which he has grouped and argues under the four topics now to be discussed.

I. Motion For Directed Verdict. This necessitates a review of some of the evidence. The Sheriff of St. Francis County obtained a warrant to search a gambling house known as 'The Groves'; and executed the warrant one night about ten o'clock. Appellant, Copeland, opened the door when informed of the warrant. Approximately seventeen persons were engaged in gambling, either at the dice table or the roulette wheel. Gambling equipment, firearms and liquor were seized; and also a book later to be discussed.

A crate was located which had contained the roulette wheel, and on the crate there was a shipping tag which gave Copeland's name and Memphis street address. The money box contained only $70.80; but Copeland had $2,950 in his pocket. The 'guests' were allowed to leave unmolested; but those operating the gambling devices were taken into custody. As the officers were leaving with Copeland, he instructed the cook to stay there and look after the building until he returned. Two officers testified that Copeland volunteered the information to them that he and one Harold Suitts owned The Groves. In view of all of the foregoing, it was clear that a case was made for the Jury as to Copeland's guilt or innocence under § 41-2001, Ark.Stats. II. Motion For Continuance. Copeland sought a continuance because of the absence of the witness, McMillan; and in the motion for continuance Copeland stated that McMillan worked at The Groves and was there at the time of the raid and would testify: '* * * that the said Joseph H. Copeland did not or does not have the ownership of or a proprietary interest in The Groves nor was he the operator thereof'. After the motion for continuance was filed, the Prosecuting Attorney went to see McMillan--ill at his home--and when the Prosecuting Attorney reported to the Court, the following occurred:

'Q. Mr. Henry, did he say categorically on that occasion that he could not testify under oath that Copeland did not own any proprietary interest? A. He said he could not and would not testify under oath that Mr. Copeland did not own any interest in the club, nor could he testify to any other person that did or did not own an interest in the club.

'Mr. Long. I believe that is all.'

Cross Examination by Mr. McCulloch:

'Q. The purpose of your questioning, Mr. Henry, was directed to whether he was able to state of his own knowledge positively as to the ownership? A. I asked him if he knew who owned it.

'Mr. McCulloch. Well, in view of what Mr. Henry has said, we would be willing to amend that stipulation in line and put it on information and belief, that is so far as he knows of his own knowledge Mr. Copeland is not the owner or operator, but that is as far as we can go * * *.

'The Court. Let me see if the Court understands the amendment you are making, Mr. McCulloch; you are willing to make what amendment?

'Mr. McCulloch. We are willing to amend it to the extent that we are not positive that Mr. McMillan would testify positively as to the ownership of the place; he would testify on his information and belief.

'The Court. Now, the Prosecuting Attorney has just testified that he told him that he did not know who owned it and he wouldn't swear whether or not the man did or did not own it.

'Mr. McCulloch. Well, it is our contention that his testimony would be that from his knowledge of all the circumstances in view of his position as an employee, that it is his information and belief that Mr. Copeland does not own it.

'Mr. Long. I think you can say that.

'The Court. All right, you are ready to admit that?

'Mr. Long. That he will testify that.

'The Court. If present, he would testify that according to this statement here in the motion, to the best of his knowledge and belief; is that right?

'Mr. Long. I think we would have to do that.

'The Court. Then I presume the case is ready for trial.

'Mr. McCulloch. Of course we still have our motion for a continuance; we realize what position that puts us in and we object to going to trial at this time, for the record.'

In the course of the trial the Court told the Jury:

'Thomas McMillan, a witness called by the defendant in this case is ill and unable to be present as evidenced by a doctor's certificate filed in this case and it has been stipulated and agreed between counsel for the defendant and the Prosecuting Attorney that said witness, Tom McMillian, if present would testify as follows: That he was an employee and worked in the operation of the place known as The Groves, that he was working there on the night when the raid was made by the sheriff and other officers and was present when the raid was made, that he did not have any definite information as to the owner or owners of the property known as The Groves or the personal property contained therein, but according to his information and belief Joseph H. Copeland was not one of the owners.

'Mr. McCulloch. We object to the giving of the stipulation in the form as given by the Court on the grounds that it was not in the form agreed upon as shown by the prior notes of the reporter. (Exceptions noted.)

'The Court. Gentlemen, you are instructed that under the law when the State of Arkansas through its Prosecuting Attorney admits in a criminal case that the witness would testify to certain facts, the law requires them also to admit the truth of the statements which they admit the witness would make if present. Call your next witness.'

On appeal Copeland argues: (a) that he was entitled to the continuance as a matter of right; and (b) that the statement that the Court gave the Jury was not as strong a statement of the witness' testimony as Copeland was entitled to have. There is no merit to Copeland's claim for continuance as a matter of right. There was another witness, John L. Adams, who worked at The Groves and who testified that Copeland was not the owner of the place; so McMillan's testimony would have been cumulative on that point. The Court could have denied the motion for continuance because the evidence of the absent witness was cumulative. Pool v. State, 121 Ark. 17, 180 S.W. 339; and see cases collected in West's Arkansas Digest, Criminal Law, k596(1).

The second argument made by Copeland--that the statement the Court gave the Jury was not as strong as he was entitled to have--is likewise without merit. In continuances in criminal cases, when the State admits that an absent witness would testify as claimed, then theState must also admit the truthfulness of such statements of the absent witness. ¹ See Graham v. State, 50 Ark. 161, 6 S.W. 721, and see Tiner v. State, 110 Ark. 251, 161 S.W. 195. As originally drawn, the motion for continuance recited that McMillan would swear that Copeland was not the owner of The Groves. To have admitted the truthfulness of that statement would have been tantamount to a dismissal of the case; so, in order to prevent such eventuality, the Prosecuting Attorney inquired of the witness what he knew, and found out that the witness did not know and would not swear that Copeland did not own The Groves. Thus, all that McMillan could have testified to was that he did not know who owned The Groves. The Court told the Jury, and the State admitted, that McMillan did not have any definite information as to who owned The Groves. That is the full force of McMillan's testimony; that is what the State admitted and that is what the Court told the Jury; and no error was committed.

III. Admitting The Book In Evidence. When the officers seized the gambling equipment, etc., they also seized a book containing what purported to be, inter alia, a profit and loss statement on the gambling operations. This book was admitted in evidence just as the...