Johnson v. State, CR--76--6
| Citation | 259 Ark. 773,536 S.W.2d 704 |
| Decision Date | 24 May 1976 |
| Docket Number | No. CR--76--6,CR--76--6 |
| Parties | Floyd JOHNSON and Bill Keeling, Appellants, v. STATE of Arkansas, Appellee. |
| Court | Arkansas Supreme Court |
McMillan, Turner & McCorkle by Toney D. McMillan, Arkadelphia, for appellant Floyd Johnson.
Travis Mathis, Arkadelphia, for appellant Bill Keeling.
Jim Guy Tucker, Atty. Gen. by B. J. McCoy, Asst. Atty. Gen., Little Rock, for appellee.
Appellants Floyd Johnson and Bill Keeling were convicted of killing hogs belonging to Alvin Dwiggins with intent to steal them in violation of Ark.Stat.Ann. § 41--3917 (Repl.1964). At about 7:15 a.m. on the morning of January 14, 1975, Alvin Dwiggins arrived at his hog barn on his farm some four miles east of Amity, Arkansas. He found a station wagon with a dead sow behind it and found another dead sow in the hallway of the barn. Both had been shot. Defendant Bill Keeling was lying down in the front seat of the station wagon, and another man with a toboggan over his face was hiding behind the vehicle. The second man fired a pistol and Dwiggins left the scene and called the Clark County Sheriff's office.
The Sheriff's officers arrived at the scene at about 7:55 a.m. on January 14, 1975. At that time Keeling was arrested and taken to jail. A Bench Warrant was issued for Floyd Johnson on March 28, 1975, and Floyd Johnson was arrested on March 31, 1975. Both defendants were tried together on July 28, 1975, and the jury found them guilty as charged and fixed their punishment at two years each.
No useful purpose would be served by an elaborate statement of the evidence. We find it sufficient to sustain the jury verdict as to both defendants, unless we find error in other respects. Otherwise, insofar as Johnson is concerned, the question is one of sufficency of identification. While the testimony of the prosecuting witness was not as convincing as might be desired, it was sufficient if it was given full credit by the jury. See Yelvington v. State, 169 Ark. 359, 275 S.W. 701.
Appellant Johnson raised two points, other than those questioning the sufficiency of the evidence. The first is his contention that the court erred in admitting into evidence a drawing by Arkansas State Police Sergeant Ursery made from a description given him by Dwiggins. Dwiggins had testified and positively identified Keeling as the person he had seen lying in the station wagon. He had related that the other man, wearing a toboggan and a heavy jacket, had been hiding behind the station wagon. Dwiggins said this man fired a pistol, while shielding his face with his left arm. Dwiggins did not see this man in a fully erect position or get a full facial view of him but did describe him as being of average height, over 30 years of age, with a distraught look. He said that he knew at the time that this man was someone he had seen before and that his eyes corresponded with Johnson's and his lower jaw with Johnson's lower jaw and facial parts. He had seen Johnson in an automobile with a police officer, Louis Dorsey, about 3:00 p.m. on the day he found these men at his barn. Dwiggins testified on redirect examination, without objection, that he had told Sgt. Ursery of the man's facial makeup and that Ursery had made a 'composite' drawing during the following week. Johnson's first objection was made when Dwiggins was presented with the actual drawing by the prosecuting attorney.
On cross-examination Dwiggins had said that he and Johnson had gone to school together from the first grade through high school. He admitted that he had told the officers who came to his barn that he could not positively identify this man, that he had not been sure of his identity, and that he did not identify Johnson when he saw him at 3:00 p.m. He denied telling the officers or Joe Lair that this man was larger than Keeling, Officer Dorsey or himself. The 'composite' drawing was identified by Dwiggins over appellant's objection that the state's counsel had stated that they did not intend to introduce it. It was not then introduced in evidence. A deputy sheriff contradicted Dwiggins by saying that Dwiggins had described the second man as being larger than Keeling.
Later Sgt. Ursery testified that he had prepared the drawing from Dwiggins' description. The drawing was admitted in evidence over Johnson's objection. The objection by Johnson's attorney, both at the time of the identification of the drawing by Dwiggins and its introduction in evidence was a plea of surprise. The following exchange took place when the drawing was offered through Ursery:
Your Honor, I was told by the State this morning that they were not going to introduce that and I would like to plead surprise on it. I have not had an opportunity to investigate this alleged composite, how it was done and under what circumstances or anything.
The State replied:
It was not the intention of the State to introduce this until and unless it was brought out in cross-examination by the defense. This was the only time that it was brought out and the State's proceeded with the matter.
After the circuit judge overruled the objection, the drawing was introduced. No motion for continuance was ever made.
There was no reversible error in this respect. It was always held that surprise by evidence introduced was not, standing alone, a ground for new trial, and that the proper remedy when evidence is admitted to the surprise of a party in a criminal case is by application for a postponement or continuance, so the party surprised can meet the testimony. Nickens v. State, 55 Ark. 567, 18 S.W. 1045; Overton v. State, 57 Ark. 60, 20 S.W. 590. See also, Mode v. State, 169 Ark. 356, 275 S.W. 700; Adams v. State, 100 Ark. 203, 139 S.W. 1116. See also, Sellers v. Harvey, 220 Ark. 541, 249 S.W.2d 120. Even though a motion for new trial is no longer essential to the raising of a point on appeal, the rule still applies insofar as it relates to the remedy for surprise. A judgment will not ordinarily be reversed on appeal because of surprise by evidence ruled admissible on trial, in the absence of a request for continuance and a showing of inability to meet the situation. Macumber v. Gillett, 138 Neb. 714, 294 N.W. 854 (1940). We have applied this rule as to reversal even when a motion for new trial was required. Fleming v. State, 72 Ark. 140, 78 S.W. 766. There is all the more reason to apply it when a motion for new trial is not required. Usually the granting of a continuance in these matters lies within the sound judicial discretion of the trial judge. Bascom v. State, 114 Tex.Cr. 32, 24 S.W.2d 437 (1929). Since there was no motion for continuance, the trial judge was not called upon to exercise his discretion in acting upon it. If subsequent developments in the trial had...
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