Graham v. State

• Court: Arkansas Supreme Court
• Writing for the Court: HOLT, J.
• Citation: Graham v. State, 154 S.W.2d 584, 202 Ark. 981 (Ark. 1941)
• Decision Date: 13 October 1941
• Docket Number: 4229
• Parties: GRAHAM v. STATE

154 S.W.2d 584

202 Ark. 981

GRAHAM v. STATE

4229

Supreme Court of Arkansas

October 13, 1941

Appeal from Johnson Circuit Court; Audrey Strait, Judge; affirmed.

Judgment affirmed.

Jack Holt, Attorney General, and Jno P. Streepey, Assistant Attorney General, for appellee.

OPINION

HOLT, J.

Appellant, Weaver Graham, was charged in an information with burglary and grand larceny. A jury acquitted him on the count charging the crime of burglary, but convicted him on the count charging grand larceny and assessed his punishment at two years in the state penitentiary. No brief appears here for appellant.

The record reflects that appellant filed motion for a new trial setting up seven grounds. The trial court denied the motion and this appeal followed.

Grounds one, two and three questioned the sufficiency of the evidence to support the jury's verdict. The testimony on the part of the state (appellee here) discloses that appellant confessed to the arresting officer that he entered the store, which he was charged with having burglarized, and took the officer to the place where the stolen articles were concealed. Appellant concedes that he made the confession voluntarily.

The deputy sheriff, to whom appellant confessed, testified that sometime in the fall of 1939 the store of C. D. Jacobs, located in the old bank building at Lamar, Johnson county, Arkansas, was broken into; that he arrested appellant, who made a voluntary statement to him; that he did not promise appellant any immunity or anything of that nature to induce him to make the statement; that while he was taking appellant to Lamar, appellant said, "'Just stop here,' and he told me all about it. He told me the ones that broke in. I said, 'Let's go back and get the merchandise.' Went back east of the house, there is a big hill. After we got part of the merchandise he said that the watch was down under the hill south of there by an old log under a rock. We went down there and fooled around a minute and came up to this rock by a little persimmon bush, turned the rock over and got the watch out. Then I brought him up to C. D. Jacobs' store and left the merchandise there, took an inventory of what we had found. Then I took him around behind the store and he showed me a stick, had a long stick, looked like a two by two, that they used to break the glass out with and reach in and open the door."

The owner of the store, C. D. Jacobs, testified that his store was burglarized on the 20th of November, 1939, and that there were two watches, tobacco, and other articles missing from the store the following morning. He further testified that the value of the missing articles was between $ 50 and $ 60.

It is our view that the evidence was ample to support the conviction.

The rule is well established that the confession of one charged with the commission of a crime, when coupled with proof that the crime was actually committed by someone, constitutes sufficient evidence to support a conviction.

In one of our leading cases on this question, Greenwood v. State, 107 Ark. 568, 156 S.W. 427, the rule is announced as follows: "In the case of Melton v. State, 43 Ark. 367, the court held that the confession of a prisoner accompanied with proof that the offense was actually committed by someone will warrant his conviction. That is to say, under our statute to warrant a conviction upon an extrajudicial confession of the accused, there must be independent evidence to establish that the crime has been actually perpetrated by someone. In the instant case there was independent testimony which showed that the deceased had been killed by someone and the circumstances independent of the confession strongly pointed to the defendant as the person guilty of the crime. . . ."

And later in Thomas v. State, 125 Ark. 267, 188 S.W. 805, this court again announced the rule in these words: "Appellant strongly insists that the evidence is insufficient to support the verdict. This cannot be true, however, if the confession is to be accepted. The owner of the store described the manner in which it was burglarized, and enumerated various articles which were stolen, and pursuant to appellant's confession some of these goods were located at the place where he had stated they would be found."

In grounds four and five, appellant attacks the verdict on the ground that it was reached by compromise and because only five members of the jury agreed to the verdict on condition that appellant be given a suspended sentence. Upon a search of the record we have been unable to find anything to show that the verdict was reached by compromise.

It is true that the verdict, as returned by the jury, had written on it in pencil, "We, the jury, recommend suspended sentence. " Upon observing the form of the verdict, the trial court interrogated the jury as follows: "By the Court: I notice that you recommend a suspended sentence. Are you just making that as a recommendation? By one of the Jurors: Yes, sir. By the Court; That is an unconditional verdict? By one of the Jurors: Yes, sir."

This court has many times held that the trial court is not bound to comply with the request of a jury that a sentence be suspended. The court has the authority to ignore the recommendation and impose sentence. In one of our late cases that of Criglow v. State, 183 Ark. 407, 410, 36 S.W.2d 400, this court said: "The jury returned a verdict of guilty and fixed the punishment at three years' imprisonment in the penitentiary, and recommended that the sentence be suspended. It is insisted that this recommendation rendered the verdict illegal, indefinite and void. We held to the contrary in the case of Clarkson v. State, 168 Ark. 1122, 273 S.W. 353, where sentence was imposed notwithstanding the recommendation of the jury that it be suspended. We there said: 'Under act 76, Acts 1923, p. 40, circuit judges are authorized, under certain circumstances, to suspend the sentences of convicted persons, but the act vests this discretion in the judge, and not in the jury. It would, of course, be proper for the court to consider any recommendation the jury might make in the matter, but the jury can only recommend...