Ellis v. State
| Citation | 267 Ark. 690,590 S.W.2d 309 |
| Decision Date | 07 November 1979 |
| Docket Number | No. CA,CA |
| Parties | James M. ELLIS, Jr., Appellant, v. STATE of Arkansas, Appellee. CR79-66. |
| Court | Court of Appeals of Arkansas |
Michael Dabney, Public Defender, Fayetteville, for appellant.
Steve Clark, Atty. Gen. by Catherine Anderson, Asst. Atty. Gen., Little Rock, for appellee.
This appeal to the Arkansas Supreme Court has been assigned to the Court of Appeals pursuant to Rule 29(3).
Appellant was convicted by a jury in the Washington County Circuit Court of aggravated robbery, a class A felony, in violation of Ark.Stat.Ann. § 41-2102, and from the judgment brings this appeal urging three points for reversal, hereinafter separately discussed.
Appellant contends the court erred in refusing to instruct the jury that, "Self-induced intoxication is an affirmative defense to a prosecution if it negates the evidence of a purposeful mental state."
There was evidence showing appellant had been drinking prior to the alleged robbery and that he was drunk at the time of the alleged robbery.
The appellant took the stand and gave detailed testimony as to his actions and places he drove and people he encountered for several hours spanning the period before and after the alleged burglary. However, his testimony as to how he came into possession of money, over a case of oil, several cartons of cigarettes and other items was rather vague. He testified the station attendant just turned the money and various items over to him, and the next morning he realized what had happened and was planning to return the property after work, and was arrested early that morning.
Appellant offered the following instruction and objected to the court's refusal:
Self-induced intoxication is an affirmative defense to a prosecution if it negates the existence of a purposeful mental state.
The appellant has not set out in his brief the instructions the court gave. Supreme Court Rule 11(f) requires the appellant in all felony cases to abstract such parts of the record as are material to the points to be argued in his brief. The prior rule requiring the Attorney General to supply an abstract in felony cases no longer obtains. Rule 11(f) provides that when the sentence is death or life imprisonment, the court reviews all errors prejudicial to the appellant, but the objections are to be abstracted. Since appellant has not set out or abstracted in his brief the instructions that were given by the court, the court does not consider the asserted error. A proper consideration of the asserted error requires that the court have before it in the brief the instructions given by the court. Here, the appellant has failed to include in his brief all of Instruction No. 9 and has set out only the one sentence to which he objects. He has set out none of the other instructions given. Under these circumstances the established rule is that on appeal the court assumes the jury was properly instructed.
Since Rule 11(f) now requires the appellant in felony cases in which the punishment is not death or life imprisonment to abstract the material parts of the record, the same rule now applies to such cases as the court has applied in misdemeanor cases in considering assignments of error in the giving or refusing of an instruction. The court does not consider the assigned error absent an abstract of the instructions given, and will assume the jury was properly instructed. Chapman v. State, 201 Ark. 91, 143 S.W.2d 575 (1940), State v. Baker, 209 Ark. 896, 192 S.W.2d 977 (1946), Branton v. State,214 Ark. 861, 218 S.W.2d 690 (1949).
Ark.Stat.Ann. § 43-2725 (Act 333 of 1971) provides the court on appeal need only review those matters briefed and argued by the appellant except in cases in which the punishment is life sentence or death.
The law on the necessity for setting out in the brief the instructions given in order to obtain review of an asserted error in the giving or refusing of an instruction has long been settled in misdemeanor and civil cases.
In Greenville Stone & Gravel Co. v. Chaney, 129 Ark. 95, 195 S.W. 13 (1917), the court said:
It appears that the court gave thirteen instructions to the jury. Error is assigned by counsel for the defendant to the action of the court in giving three of these instructions. None of the instructions given by the court are set out in his abstract except those to which objections are made. The instructions should always be set forth in full, and a failure to do so invokes the presumption that correct instructions were given curing those complained of, if they are curable. (Other cases cited.)
This rule has been followed for many years. Strickland v. Quality Bldg. & Security Co., 220 Ark. 708, 249 S.W.2d 557 (1952).
In Bank of Ozark v. Isaacs et al., 263 Ark. 113, 563 S.W.2d 707 (1978), the court explained in detail the necessity for the rule requiring that the brief contain an abstract of all matters from the record necessary for considering an asserted error.
The Arkansas rule that has been followed in misdemeanor and civil cases of requiring the instructions to be briefed when error is assigned for the giving or refusing of an instruction, which rule should now be followed in felony criminal cases in view of Ark.Stat.Ann. § 43-2725, is in accord with the rule of the Illinois Supreme Court as announced in People v. Tabet, et al., 402 Ill. 93, 83 N.E.2d 329 (1949). In the opinion upholding a felony conviction the court said:
The abstract does not recite that the instructions as therein enumerated are all of the instructions which were given or tendered on behalf of plaintiffs in error or the People. The supreme court is not called upon to consider an assignment of error based upon the giving or refusing of instructions where the abstract does not show the above information.
The appellant sought review in the United States Supreme Court and certiorari was denied. 336 U.S. 970, 69 S.Ct. 933, 93 L.Ed. 1121 (1949).
What we have said is dispositive of the issue raised under Point I; however, we point out the instruction is substantially the language of Ark.Stat.Ann. § 41-207(1) as it existed prior to Act No. 101 of 1977 which eliminated self-induced intoxication as a statutory defense. While self-induced intoxication appears to remain a common law defense to a crime in which an essential element is that the act be done knowingly or purposefully, the defendant has the burden of establishing the defense by a preponderance of the evidence. The instruction offered contained no provision as to the burden of proof. Johnson & Keeling v. State, 259 Ark. 773, 536 S.W.2d 704 (1976). The instruction was also abstract and was not directed specifically to whether the defendant was so intoxicated at the time of the act that he was incapable of acting purposefully.
It is contended the court erred in not granting appellant's motion for directed verdict.
The prosecuting witness testified appellant came to the service station the witness was operating, held something in his hand pointing at him and told him he had a gun, told him he had killed a "guy" in Winslow, and told him to put more than a case of oil and ten cartons of cigarettes in his car and other items and to give him all the money he had, $270.00. The witness testified he was scared, could not tell if appellant had anything in his hand and complied with the demand. The police recovered some of the property and money. The appellant took the stand and gave a detailed account of his actions, places he drove and people he encountered for several hours before and after the alleged robbery. He admitted being at the station allegedly robbed and obtaining possession of the money and other items, but claimed the witness gave the money and property to him. He testified he started drinking about noon before the incident which occurred about 8:00 to 9:00 o'clock that night. There was other evidence that he had been drinking before the incident, and testimony of one witness that sometime after the incident he was "totally drunk." He testified the next morning upon realizing what had happened he planned to take the property and money back after he got off work that day. He was arrested at a cafe early the next morning.
We conclude there was evidence that appellant took the property and money from the prosecuting witness by threats and representing by word and conduct that he had a gun. There was substantial evidence to support the verdict. Balentine v. State, 259 Ark. 590, 535 S.W.2d 221 (1976).
Appellant contends the court erred in refusing to instruct the jury as to the lesser assault instruction offered by the defendant.
The abstract does not set out any instruction appellant here asserts was offered and refused. We, therefore, do not consider the asserted error.
Affirmed.
I cannot agree with point one in the prevailing (there is no majority) opinion. I believe the trial judge should have instructed the jury on the defense of intoxication. When viewed as a whole, the instructions given actually misled the jury because they mentioned that intoxication is not generally a defense to prosecution for a crime, but failed to say it might be a defense to a crime requiring a specific intent.
The prevailing opinion does not deal so much with the merits of this problem as with the fact that the appellant abstracted only the refused instruction and one of the instructions given by the court. The prevailing opinion takes the position the appellant may not object to the failure to give requested instructions unless all of the instructions given by the court have been abstracted. The basis of this holding seems to be that by amending Rule 11(f) in 1975 (see 258 Ark. 770-H) to place the responsibility in felony cases on appellants, rather than on the Attorney General, to abstract the record, the Supreme...
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