Houpt v. State

• Decision Date: 16 November 1970
• Docket Number: No. 5536,5536
• Citation: 249 Ark. 485,459 S.W.2d 565
• Parties: Billy Ray HOUPT, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 565

459 S.W.2d 565

249 Ark. 485

Billy Ray HOUPT, Appellant, v. STATE of Arkansas, Appellee.

No. 5536.

Supreme Court of Arkansas.

Nov. 16, 1970.

Richard L. Slagle, Hot Springs, for appellant.

Joe Purcell, Atty. Gen., Milton Lueken, Asst. Atty. Gen., Little Rock, for appellee.

HOLT, Justice.

Appellant was charged by information with the crime of robbery. A jury trial resulted in a verdict of guilty and a sentence of nine years in the state penitentiary. Present counsel was appointed for purposes of this appeal.

Appellant first contends for reversal that the jury verdict is not supported by the evidence. We disagree. The prosecuting witness, Cleo Smith, testified that on the night of the robbery, while he was working alone behind the counter at Lake Liquor Store in Hot Springs, a dark-haired man wearing dark trousers and a blue knit golf shirt entered the store between 11:30 p.m. and midnight, got a coke from the vending machine, and asked to have a fifty-dollar check cashed. When Smith refused, the man displayed a small pistol and inquired: 'You'll cash it for this, won't you?' He then demanded and received all of the twenty and ten dollar bills in Smith's till. Approximately five minutes elapsed from the time appellant entered until he made his getaway in a car which Smith described as being a two-toned, light over dark color. Smith identified appellant, both at the police station and at the trial, as the robber.

The owner of the store testified that an inventory of the money disclosed that $420.00 had been taken. Two officers related to the jury the events leading to appellant's arrest and the subsequent search of his light over dark, two-toned car which produced a high powered rifle, a cheap small holster, and a box of 25-caliber shells.

Appellant presented an alibi witness who testified that appellant was with him in Monroe, Louisiana all day and most of the night of the date of the robbery. Direct and cross-examination disclosed that this witness had a felony record and that he had first met appellant twenty years ago in Washington, D.C. at the National Training School, a federal institution for boys. Appellant then took the stand and corroborated his alibi witness' story. He also displayed to the jury several clearly noticeable arm tattoos which the state's witness, Smith, failed to mention in his description of his assailant.

In rebuttal, the state called two witnesses who testified they saw appellant in Hot Springs on the day of the robbery.

Reconciling conflicts in the testimony and weighing the evidence are, of course, within the exclusive province of the jury. Wright v. State, 177 Ark. 1039, 9 S.W.2d 233 (1928). It was the jury's prerogative to accept such portions of the testimony which it believed to be true and to discard that deemed false. Brown v. State, 231 Ark. 363, 329 S.W.2d 521 (1959); Smith v. State, 216 Ark. 1, 223 S.W.2d 1011 (1949). If a verdict is supported by any substantial evidence, that is sufficient to sustain it. Cook v. State, 196 Ark. 1133, 121 S.W.2d 87 (1938). Viewing the evidence in a manner most favorable to the state, as we must on appeal (Crow v. State (Ark. June 15, 1970), 455 S.W.2d 89), it is obvious that we cannot say in the case at bar that the jury, as a matter of law, was without any substantial evidence to support its verdict.

In his second and final point for reversal, appellant argues that there was a fatal variance between an allegation in the information and the proof at trial. The information charged appellant with robbing Cleo Smith of '$420.00 silver and paper money'; whereas the proof at trial only established the taking of $420.00 in paper money. Appellant relies upon our earlier decisions such as Silvie v. State, 117 Ark. 108, 173 S.W. 857 (1915); Marshall v. State, 71 Ark. 415, 75 S.W. 584 (1903); Starchman v. State, 62 Ark. 538, 36 S.W. 940 (1896); and Wilburn v. State, 60 Ark. 141, 29 S.W. 149 (1895), which seemingly support his position. However, these cases precede the...