Hurst v. State, 5610
| Decision Date | 27 September 1971 |
| Docket Number | No. 5610,5610 |
| Citation | 251 Ark. 40,470 S.W.2d 815 |
| Court | Arkansas Supreme Court |
| Parties | Thomas Wayne HURST, Appellant, v. STATE of Arkansas, Appellee. |
Louis J. Longinotti, III, Hot Springs, for appellant.
Ray Thornton, Atty. Gen., Garner L. Taylor, Jr., Asst. Atty. Gen., Little Rock, for appellee.
Thomas Wayne Hurst was convicted of robbery at a jury trial in the Garland County Circuit Court and was sentenced to 10 years in the penitentiary. On appeal to this court he relies on the following points for reversal:
'The verdict was contrary to the law.
The verdict was contrary to the evidence.
The verdict was contrary to both the law and evidence.
The verdict and sentence were excessive.'
The gist of appellant's argument under his first three points is that the state's evidence failed to sustain his conviction of robbery as defined by statute.
Ark.Stat.Ann. § 41--3601 (Repl.1964) defines the crime of robbery as 'the felonious and violent taking of any goods, money or other valuable thing from the person of another by force or intimidation; the manner of the force or the mode of intimidation is not material, further than it may show the intent of the offender.' The appellant argues that the state simply failed to prove that he took anything from the alleged victim, Mr. Scurlock, by force or intimidation. We do not agree.
Mr. Scurlock was an 84 year old man who lived at a rooming house near the Broadway Lounge in Hot Springs. He had just been released from the Veterans Hospital in Little Rock where he had undergone a prostate operation, and had returned to Hot Springs on the day of the alleged crime.
On the evening in question Mr. Scurlock had gone to the Broadway Lounge (a pool hall where beer was sold) and was drinking beer and watching the pool games. According to Mr. Scurlock's testimony, he was drinking beer at a table in the pool hall when the appellant joined him. They engaged in conversation and continued to drink beer together during which time, according to the evidence, Scurlock, in addition to paying for the beer, also purchased sandwiches for himself and the appellant, and the appellant played three games of pool with a friend, Steve Kelly. From other testimony, as well as that of the appellant, Scurlock wagered $5.00 on each of the three games. Scurlock would bet Kelly $5.00 that the appellant would win the game. The appellant would purposely lose, 'throw the game,' and then he and Kelly would divide Kelly's winnings.
According to Mr. Scurlock, in the course of his conversation with the appellant while drinking beer, the conversation drifted to race horses, a subject in which Mr. Scurlock was interested. The appellant told Mr. Scurlock that he was a 'stable boy' for some race horse owners from Missouri and was in charge of some horses they had in Hot Springs. He offered to take Mr. Scurlock out to see the horses and Mr. Scurlock accepted the invitation. Mr. Scurlock testified that he rode with the appellant out into the country and when they reached a lonely point on a road, the appellant stopped the car and stated to Mr. Scurlock, 'this is where we get off.' He testified that the appellant then grabbed him and threw him down into a ditch beside the road with such force that the breath was knocked out of him. Mr. Scurlock testified that the appellant then kicked him in the side and drove off leaving him in the ditch where he remained until discovered by a deputy sheriff who took him to a hospital. He says that he had a wallet containing approximately $60 in his pocket when he went riding with the appellant, and that on the way to the hospital he discovered that his wallet and the money were gone.
The appellant testified in his own defense and his testimony confirms that of Mr. Scurlock up to the point of their departure from the Broadway Lounge. The appellant testified that he is 22 years of age, and that during the course of his conversation with Mr. Scurlock, while drinking beer in the pool hall, they agreed to drive out into the country to a different tavern. He says that they purchased some beer at the other tavern and that they stopped beside the road and were just drinking the beer and talking. He then testified as follows:
'* * * we set there and drink most of the beer and he was talking about how much money he'd lost on my pool games. And he took his wallet and held it out like that and said, 'If I gave you the money I've got in my wallet right now, you'd lose it all.' And I said, 'No, I wouldn't.' And he said, 'Yes, you would, there it is.' So I took it and stuck it in my shirt pocket and we set there and drank for awhile more and he got to--anyway, he made me mad, talking about how I shot pool and this and that, I told him, I said, 'Well, just get out.' And whenever he got out, why, I drove off and came back to the Broadway Lounge and picked up Steve Kelly. And I wasn't there about, about 5 minutes, I ordered a beer and Steve Kelly and I drove to the Track Drive-in and ate a sandwich and then we drove back down to the Past Time. When we got to the Past Time Sheriff Brown was there and he asked me what my name was and I told him and he told me that I was under arrest.
Q. What all did you have of Mr. Scurlock's?
A. Nothing but $17.00.
Q. What did you do with the wallet?
A. Threw it out the window.'
The appellant argues that the state did not directly prove any taking of Scurlock's money but relied solely on circumstantial evidence which allows other reasonable hypotheses explaining the missing money.
It is well established that circumstantial evidence can sustain a conviction in Arkansas. Mathis v. State, 249 Ark. 1088, 464 S.W.2d 48 (Feb. 22, 1971); Cook v. State, 248 Ark. 332, 451 S.W.2d 473; Walker v. State, 229 Ark. 685, 317 S.W.2d 823; and that no greater degree of proof is required where the evidence is circumstantial than where it is direct, for in either case the jury must be convinced beyond a reasonable doubt. See Mathis v. State, supra; Casteel v. State, 202 Ark. 663, 152 S.W.2d 554; Scott v. State, 180 Ark. 408, 21 S.W.2d 186; ...
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