Cummings v. State, 5134
| Decision Date | 29 November 1965 |
| Docket Number | No. 5134,5134 |
| Parties | Jesse CUMMINGS and John Teal, Appellants, v. STATE of Arkansas, Appellee. |
| Court | Arkansas Supreme Court |
Skillman & Webb, West Memphis, for appellants.
Bruce Bennett, Atty. Gen., by Farrell E. Faubus, Asst. Atty. Gen., Little Rock, for appellee.
The appellants, Jesse Cummings and John Teal, were jointly charged, tried, and convicted of the possession of burglary tools (Ark.Stat.Ann. § 41-1006 [Repl.1964]). They bring this appeal assigning nine points for reversal, and we will mention only those which seem to possess any merit.
I. Habitual Criminal Statute. In their Point No. II the appellants say:
'The Court erred in denying the motion of the Defendant, John Teal, to withhold reading of that part of the amended information relative to a charge against the said John Teal of being an habitual criminal until after the jury had determined the guilt or innocence of the Defendant, John Teal.'
We find merit in this point. The information charged the defendants jointly with possessing a considerable number of burglary tools. In excess of fifteen items were all carefully listed. Then the information said, as regards the previous conviction of John Teal:
'The said John Teal, alias J. M. Billy Teal, an habitual criminal having previously, in cause No. 3162, been convicted in the Osceola District of Mississippi County, Arkansas, Criminal Division of the Circuit Court, of the Crime of Grand Larceny, such conviction having been on March 30, 1950, and said defendant having served such sentence and released upon pardon or parole as reflected in Criminal Judgment Record Book No. 5, Page 74.'
The Trial Court, in the exercise of its discretion (Ark.Stat.Ann. § 43-1802 [Repl.1964]), refused to grant the defendants a severance; and then in advance of the trial each defendant requested the Court to suppress, until guilt or innocence had been established, all reference to the habitual criminal allegation concerning John Teal. These separate requests of Teal and Cummings were denied in toto. 1 In the course of the trial the previous conviction record of Teal was shown; the Court instructed the jury on the habitual criminal statute; and the Prosecuting Attorney in his summation to the jury commented on the previous criminal record of Teal. All of this was done over the objections of the defendants. 2
On October 18, 1965 we decided the case of Miller et al. v. State of Arkansas, Ark., 394 S.W.2d 601, in which we discussed at length the habitual criminal statute and how any reference to previous convictions should be handled in jury trials. Under the holding in Miller v. State it is clear that the Trial Court committed error in the case at bar in allowing the evidence, instructions, and arguments to go to the jury about the previous conviction of Teal. It is only fair to the learned Circuit Judge to point out that this present case was tried on December 2, 1964, which was several months before our holding in Miller v. State on October 18, 1965. But, even so, the present appellants are entitled to claim the benefits of our holding in the Miller case.
Even though Teal was the only defendant with a previous criminal record alleged, we feel that the proof of Teal's criminal record likewise adversely affected the interest of his co-defendant Cummings. Cummings had been denied a severance, and the jury might have inferred that Cummings' association with a known criminal was some indication of his own status. In Moore et al. v. State, 227 Ark. 544, 299 S.W.2d 838, four defendants were jointly tried, and we held that the introduction of evidence incompetent as to two of the defendants was prejudicial to the other two defendants. So we reverse the convictions both as to Cummings and as to Teal.
II....
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