Harris v. State
| Decision Date | 02 February 1976 |
| Docket Number | No. CR75--50,CR75--50 |
| Citation | 532 S.W.2d 423,259 Ark. 187 |
| Parties | Lee Otis HARRIS, Appellant, v. STATE of Arkansas, Appellee. |
| Court | Arkansas Supreme Court |
Christopher C. Mercer, Jr., Little Rock, for appellant.
Jim Guy Tucker, Atty. Gen., by Jackson Jones, Asst. Atty. Gen., Little Rock, for appellee.
Theotis Maxwell and the appellant Lee Otis Harris were jointly charged with the first-degree murder of Ellis Robb. In separate trials both defendants were found guilty and were sentenced to life imprisonment without parole. Maxwell's conviction was upheld last month. Maxwell v. State, 259 Ark. ---, 531 S.W.2d 468 (1976). Harris now argues three points for the reversal of his conviction.
First, defense counsel, in asserting that prosecution by information rather than by indictment is unconstitutional, concedes with candor that we have consistently rejected that contention. Ellingburg v. State 254 Ark. 199, 492 S.W.2d 904 (1973). In the case at bar, however, the further argument is made that the defendant's confinement pending trial, on the basis of the information alone, unconstitutionally deprived him of his right to a judicial determination of the existence of probable cause for his pretrial detention.
That contention is answered by the Supreme Court's opinion in Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). There the court said that a judicial hearing is not prerequisite to prosecution by information and that illegal detention does not void a subsequent conviction. The court recognized that 'although a suspect who is presently detained may challenge the probable cause for that confinement, a conviction will not be vacated on the ground that the defendant was detained pending trial without a determination of probable cause.' Thus the challenge here comes too late.
Second, the appellant argues that when the trial court sustained a motion to quash the entire jury wheel, the jury commissioners should have then been directed to select only a panel of jurors for the trial of this case rather than a number sufficient to satisfy the requirements for a new jury wheel. Ark.Stat.Ann. § 39--214 (Supp.1975). The argument is without merit, as we held in the companion Maxwell case, supra. A defendant cannot be prejudiced by being afforded an even greater crosssection of eligible jurors that the minimum that the statute might be construed to require.
Third, counsel insists that Act 438 of 1973, reinstating capital punishment in Arkansas, is invalid, as conferring upon...
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...to set bond. ARCr.P. 9.2. In any event, failure to set bond would not vitiate an otherwise valid conviction. Cf., Harris v. State, 259 Ark. 187, 532 S.W.2d 423 (1976). F. Appellant correctly contends that the trial court erred in ruling that appellant's motion for a new trial was not timely......
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