French v. State

• Decision Date: 25 March 1974
• Docket Number: No. CR,CR
• Citation: 256 Ark. 298,506 S.W.2d 820
• Parties: Barbara Railsback FRENCH, Appellant, v. STATE of Arkansas, Appellee. 73--154.
• Court: Arkansas Supreme Court

Page 820

506 S.W.2d 820

256 Ark. 298

Barbara Railsback FRENCH, Appellant, v. STATE of Arkansas, Appellee.

No. CR 73--154.

Supreme Court of Arkansas.

March 25, 1974.

Ball, Gallman & Martin, Fayetteville, for appellant.

Jim Guy Tucker, Atty. Gen. by O. H. Hargraves, Deputy Atty. Gen., Little Rock, for appellee.

FOGLEMAN, Justice.

We find it necessary to reverse the judgment of conviction of appellant of the crime of Possession of a Controlled Substance with Intent to Deliver in violation of Act 67 of 1972 (Ark.Stat.Ann. § 82--2617 (Supp.1973)) because of the giving of an instruction to the jjry which amounted to a comment on the evidence prohibited by Art. 7, Sec. 23 of the Constitution of Arkansas. The instruction was virtually a verbatim recitation of Act 68 of 1972 (Ark.Stat.Ann. § 82--2617). It read:

Possession of marijuana (Cannabis Sativa L.) in excess of one ounce shall create a rebuttable presumption that such person possesses such controlled substance with intent to deliver; provided, however, the presumption provided for herein may be overcome by the submission of evidence sufficient to create reasonable doubt that the person charged possessed the marijuana (Cannabis Sativa L.) with intent to deliver.

We have not heretofore passed upon the propriety of stating the statutory 'rebuttable presumption' to the jury. We did not directly consider the question in Stone v. State, 254 Ark. 1011, 498 S.W.2d 634, because it was not before us. We did hold, however, that the words 'rebuttable presumption' as used in the statute referred, rather than to a conclusive presumption to a justifiable inference, i.e., an inference which a trier of fact may draw if it thinks the evidence requires it, but which may be overcome by submission of evidence creating a reasonable doubt. Even though we reserved the question, we recognized that an instruction in the words of the statute might run afoul of such decisions as Lott v. State, 223 Ark. 841, 268 S.W.2d 891, in which we have held an instruction telling a jury that an inference of guilt of larceny could be based upon an accused's possession of recently stolen property to be an impermissible comment on the evidence. To the same effect, see Mays v. State, 163 Ark. 232, 259 S.W. 398; Holcomb v. State, 217 Ark. 407, 230 S.W.2d 487.

More to the point, however, is our holding in Reno and Stark v. State, 241 Ark. 127, 406 S.W.2d 372, reaffirmed in State v. Jacks, 243 Ark. 77, 418 S.W.2d 622, where, as here, the matter of drawing inferences as to a defendant's intent from proof of other facts was the question involved. In Reno, there was a prosecution for failure of a contractor to apply payments made by an owner under his contract to the discharge of liens with the intent to defraud the owner under Ark.Stat.Ann. § 51--640 (Repl.1971). An instruction was given which was a recitation to the jury of that section of the statute making the showing that a contractor had received payment without having discharged a mechanic's, laborer's or materialman's lien within 10 days after receipt of payment or of notice of the existence of the lien prima facie evidence of intent to defraud. It was held improper as a comment on the evidence.

The rationale of our holdings in regard to such matters is that it is improper for a court to tell a jury that a specific fact shown by the evidence is sufficient to support a certain inference, such as guilt, negligence, malice or the like. See Thiel v. Dove, 229 Ark. 601, 317 S.W.2d 121. Under this rationale we must hold the giving of the instruction questioned here to be reversible error. In so doing, we reject appellee's argument based upon a statement in Jones v. City of Forrest City, 239 Ark. 211, 388 S.W.2d 386 (and cases cited therein), that an instruction in the language of a statute applicable to the facts of a case is always proper. This comprehensive language applied literally would permit the legislature to override Art. 7, Sec. 23 of the Constitution, but we have held in Reno, decided subsequently to Jones, that this cannot be. We hasten to point out that this case was tried prior to our decision in Stone v. State, supra, and to add that the instruction given here was not couched in language that would bring it within the category of instructions held permissible in such cases as Petty v. State, 245 Ark. 808, 434 S.W.2d 602; Johnson v. State, 190 Ark. 979, 82 S.W.2d 521; Thiel v. Dove, supra; McDonald v. State, 165 Ark. 411, 264 S.W. 961; Barron v. State, 155 Ark. 80, 244 S.W. 331; Selman v. State, 159 Ark. 131, 251 S.W. 882; Walker v. State, 138 Ark. 517, 212 S.W. 319.

Appellant next contends that the trial court erred in admitting into evidence articles seized pursuant to a search warrant issued by the Fayetteville Municipal Court. In support of this contention, she argues that the information upon which Michael E. Vowell, Special Agent of the Bureau of Narcotics and Dangerous Drugs predicated his affidavit of probable cause for the issuance of the search warrant was obtained as a result of an illegal search by Vowell and that all conduct by Vowell thereafter was tainted by such illegal search.

On motion to suppress the evidence obtained through the search, it was shown that in July 1972 a parcel addressed to Mr. Barbara Railsback was received via Delta Airlines at Little Rock. Its point of origin was somewhere in Africa. It was delivered to the Port Director, Arthur Vlcek, and left in his custody on the dock for five days, as customary in case of any importation into this country. Since it was not claimed by anyone during that period, it was then put into the Government Order Warehouse, which was in the back part of the Port Director's office. About the 16th day of August, in order to clear the parcel through customs, Gregory Phillips of R. W. Smith Company, a broker, made an entry or declaration, on behalf of appellant, that the parcel contained a drum classified under a tariff act. Vlcek then opened the outer burlap wrapping of the parcel to see if the contents conformed with the entry. He found a drum, which seemed to him to be heavier than normal. Because of the weight, he suspected that the drum might have been utilized for smuggling, so he punctured the drum, inserted a small wire probe and extracted a small piece of plastic bag and some material which proved upon testing to be marijuana. He immediately seized the drum and made up the usual seizure report based upon the smuggling of marijuana in violation of federal law prohibiting introduction of contraband into the United States. Although the customs agent usually makes delivery of contraband under these circumstances, Vlcek was directed by his superiors to deliver the drum...