Jones v. State

• Citation: 441 S.W.2d 458,246 Ark. 1057
• Decision Date: 26 May 1969
• Docket Number: No. 5377,5377
• Parties: Louis Ray JONES, Appellant, v. The STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 458

441 S.W.2d 458

246 Ark. 1057

Louis Ray JONES, Appellant, v. The STATE of Arkansas, Appellee.

No. 5377.

Supreme Court of Arkansas.

May 26, 1969.

Harkness, Friedman & Kusin, Texarkana, for appellant.

Joe Purcell, Atty. Gen., Don Langston, Asst. Atty. Gen., Little Rock, for appellee.

FOGLEMAN, Justice.

Appellant was convicted of burglary and grand larceny. He lists 15 points for reversal. His failure to argue some of them, except by repeating the statement of the points themselves is evidence that these are merely formal in nature. Others are overlapping and intertwined. We shall treat as many of these points in this opinion as seem to merit discussion, some of which we consider only in view of the reversal of this case for insufficiency of the evidence. Others we consider to be wholly without merit. In dealing with those of which there is some indication of merit, we will consolidate into the following:

1. The evidence is insufficient to support the verdict of the jury.

2. Appellant was never taken before an examining magistrate.

3. The conviction should be set aside because appellant's arrest was not based upon a warrant or probable cause.

4. Evidence obtained by search of a barn wherein a large quantity of paint was stored should have been suppressed.

5. A cardboard box found by an officer prior to the arrest of appellant should have been suppressed as evidence.

6. Appellant was deprived of constitutional rights by failure of the officers to advise him of his right to counsel, to permit him to use a telephone for at least 30 hours, to permit him to communicate with his parents or relatives, and by interrogation of appellant in the absence of any attorney.

7. The court erred in giving an instruction distinguishing between direct and circumstantial evidence.

8. The court erred in instructing the jury as to a rule of evidence in regard to possession of stolen property. We treat these points in the order listed.

1.

We find reversible error in the denial of appellant's motion for new trial on this ground.

The Sherwin-Williams Paint Store on State Line Road in Texarkana, Arkansas, was burglarized during the weekend of May 27, 28 and 29, 1967. Paint, brushes and other articles worth more than $5,000 were taken from the store. Among the articles taken were various cloths, a sander, a safe containing papers and records, and various accessories. The burglary was discovered by Sid Smith, the manager of the store, at 7:00 a.m., Monday, May 29. The store had apparently been entered through a window which had been broken and unlocked. Smith immediately notified the Texarkana Police Department. Chief Max Tackett directed the investigation. He learned that a yellow panel-body truck belonging to the paint store had been found at the store on Monday morning with its motor running. He also had information that a truck belonging to the Texarkana School District had been stolen during the same weekend. Assistant Chief Thurman Quisenberry examined the school truck. It was a 1 1/2-ton or 2-ton flat bed truck. The floor of the truck bed consisting of 1 4 wooden slats was heavily scratched and scarred. The truck was light green, but the bed was black. It had dual wheels and oak sideboards. It had been found abandoned on the side of a road near Fulton. Clay mud was found underneath the truck, and sprigs of wild oats were caught in the springs underneath the truck. On and about the bed of the truck Chief Quisenberry found limbs and thorns from bois d'arc trees, cedar limbs and foliage and leaves appearing to be from wild hedge. Freshly sprayed black paint appeared along the edges of the floor slats. Lettering on the truck doors had been obliterated by paint of the same color, but of a different type. In the truck the officer found a claw hammer and a small can of green spray paint of the same brand carried in the stock of the paint store. Both Tackett and Quisenberry examined the truck at the paint store and found foliage, some of which was on the rearview mirror, similar to that found on the school truck. Quisenberry noticed scratches up and down both sides of the paint store truck. Chief Tackett ascertained that plants bearing these types of foliage were indigenous to the vicinity of Brownstown, a small community in Sevier County. He proceeded to that area with Quisenberry and Officer John Butler. Butler was taken because he had previously made his home in Sevier County about six or seven miles from Brownstown. They went near a place known to Butler as the Hogue place. After going some 200 yards from the highway and through a wire gap, they noticed the tracks of a dual-wheeled truck. They drove about 300 yards down through woods to a creek. They walked across the creek and followed these tracks into a thicket of bois d'arc bushes. They then drove back to a welding shop and learned that a new house had been built north of the house that Butler remembered.

The next day Tackett, Butler, Quisenberry and Officer Weir returned to the area. As they came into the area they saw a house on the Hogue place 10 to 12 feet square with a garage to the right, a tool shed to the left rear and a combination chicken house and barn just beyond the tool shed. The barn was 60 to 70 yards from the road and the tool shed 10 to 20 yards from it. The house was 30 to 40 yards from the road. They recognized a 1960 model Chevrolet automobile parked in the road in front of the house as one used by both Louis Ray Jones and his mother, a resident of Texarkana. Jimmy Hogue, the owner of the place was Louis Ray Jones' grandfather. A man named Carl Ray was in charge of the place. Butler went up to Snead's grocery, while the other officers proceeded along the road about a half mile, passing through the wire gap. Weir remained with the car while Tackett and Quisenberry walked farther. After they crossed a creek, Tackett found a piece of pasteboard which bore stencilled marks pertaining to Sherwin-Williams at Texarkana. Following dual wheel tracks, they saw skinned places on the brush bearing bluish green paint marks approximately the same color as the paint on the school truck. After the officers had unsuccessfully searched the area for the safe and other missing articles, they returned to the area of the small house they had seen, leaving the police car 50 or 60 steps from the place the cardboard was found and about 60 to 70 steps from the place the dual wheel tracks led into brush consisting largely of bois d'arc in a place where some wild oats also grew. They had been rejoined by Butler who reported information he had received at the store. The officers walked around behind the garage, where they found dual wheel tracks, appearing to be fresh, leading to the barn on the side most remote from the highway. Looking through a wire enclosure they saw that the barn contained stacks of hay. It appeared to Butler that the barn door had been recently opened. Weir and Butler looked through a crack and saw a two-wheeled dolly.

Quisenberry took up a station in some woods 50 or 60 yards from the road in a position where he could watch the house, barn and other buildings, while Tackett, Butler and Weir proceeded to the Snead store. From there, Chief Tackett called the sheriff's office at DeQueen for a search warrant. He left Weir at the store to await the arrival of a Sevier County officer, and he and Butler returned to the area where the cardboard had been found and searched for the safe and paint for more than an hour. During this time Quisenberry saw Louis Ray Jones, Jo Ann Womack and Wayne Jones arrive in a Volkswagen, which they parked in front of the Chevrolet. After they raised the hood on the Chevrolet, Louis Ray and Jo Ann Womack came around behind the garage and mounted a tractor located between the garage and the house. They backed the tractor into the road and proceeded in the direction in which Tackett and Butler had gone. Butler and Tackett heard the motor of the tractor and could tell that it was approaching them. When Butler got back to the police car, he saw a set of tractor tracks indicating that a tractor had been turned around near the car. Weir had seen the party arrive and called Chief Tackett on a 'walkie-talkie' radio and advised him of the party's arrival. Tackett instructed Weir not to let these people leave, but not to make any arrests before the Sevier County officer arrived, if he could avoid doing so. Shortly thereafter Deputy Sheriff Young arrived, and he and Weir went to the house. About 10 or 15 minutes after they arrived, Louis Ray Jones and Miss Womack returned, and were placed under arrest by these officers. The arrest was made about 20 or 30 feet from the shed or garage at or near the edge of the road. Chief Tackett and Butler arrived shortly thereafter and found Louis Ray Jones and Jo Ann Womack under arrest and in a car. Young had a search warrant which was declared invalid by the trial court. The officers immediately commenced a search of the barn and garage in the vicinity. In the barn they found most of the stolen articles which were later returned to the Sherwin-Williams Paint Store. They did not find the safe. They also found a large number of empty fertilizer sacks in the barn and fertilizer in clear plastic bags in the garage. The bags were colored red in part. Some of the bags in the garage were also empty. The two-wheeled dolly was recovered from the garage.

T. D. Snead ran the store about a quarter of a mile away from the place where Jones was arrested. Late in the evening on the day before the police came up he saw a large truck with sideboards pull out from the barn. It went south toward the cliff a point beyond the Hogue house near the river and south of Brownstown.

On the following day Tackett, Quisenberry, Weir and Butler returned to the area with Willis B. Smith, Jr., and went along the road beyond the Hogue place, searching for the safe. They found and recovered a plastic bag of the type...