Lane v. State, 4600

• Decision Date: 10 April 1950
• Docket Number: No. 4600,4600
• Parties: LANE et al. v. STATE.
• Court: Arkansas Supreme Court

Page 43

229 S.W.2d 43

217 Ark. 114

LANE et al. v. STATE.

No. 4600.

Supreme Court of Arkansas.

April 10, 1950.

Rehearing Denied May 8, 1950.

Motion to Stay Mandate Denied June 5, 1950.

See 230 S.W.2d 480. Bruce Ivy, Osceola, Claude F. Cooper, Blytheville, for appellant.

Ike Murry, Attorney General, Arnold Adams, Asst. Atty. General, for appellee.

GRIFFIN SMITH, Chief Justice.

Indictments charged the three defendants with burglary and grand larceny. Each was convicted and sentenced to serve penal terms of seven years for burglary and fifteen years for grand larceny. The motion for a new trial lists sixty-three matters in respect of which error is urged. Eleven are discussed in the briefs.

On the night of June 26, 1949, a metal safe was taken from the store of R. H. Wilmoth at Etowah. It was found in a ditch near the highway four miles away. Indications were that it had been opened with a sledge hammer. Wilmoth testified that the safe contained $2,285 in money and $446 in checks. Some of the checks were recovered later, but none of the money.

Thomas K. Morrow, familiarly known as 'Sonny', is known in Mississippi County as a professional gambler and criminal suspect. He met Jack Barg while in Detroit in 1942 or 1943; but in 1949 Barg was in Chicago. Morrow met Martin Lane in January, 1949, and in June of that year he become acquainted with Harry Smith. The circumstances were that Barg, telephoning from Chicago, had tried to get in touch with Morrow. The call was answered by Morrow's mother-in-law, who relayed the message in a manner permitting arrangements for a meeting of the four--Barg, Lane, Smith, and Morrow--at State Line, a point marking the boundaries of Arkansas and Missouri. Morrow testified that after he was introduced to Smith, either Barg or Lane asked if he knew of a place they could 'knock off', explaining that they would like to make some 'fast money'. Morrow had formerly played poker at London, Kentucky, at a public place operated by George Henderson, who was supposed to be informed regarding safe-cracking opportunities, so they drove to London and talked with Henderson, who had 'backed out'. Returning, they stopped at Morrow's home at Holland, Mo., then some or all of them went scouting for likely-looking places to rob. Morrow had been joined by his wife. At Manila they stopped at a medical clinic for Barg to make a date with Irene Rice, whose testimony was a feature of the trial.

Half a mile south of Floodway, on the road to Etowah, Morrow and his wife, with Barg and Smith, went into Homer Starnes' store to see if they could spot an available safe, but if Starnes owned a safe the party 'didn't locate it'. Ten or fifteen minutes later they were in Etowah. Smith went into Wilmoth's store, returning with the explanation that the safe there 'looked like a cinch'. He had asked that a $20 bill be changed. After 'casing' the store they went to Manila and killed time at the Legion Hut, ascertained that Irene Rice could not leave her employment until eight o'clock in the evening, and then went to Morrow's home at Holland. When Irene joined them considerable time was spent drinking beer and whiskey, but at a late hour Barg reminded them that business came before pleasure.

At 2:30 a. m. Barg, Lane, and Smith changed their clothing, preparatory to the business at hand. Morrow drove his car. In the Dodge that followed were Lane, Smith, and Barg. Morrow testified that after driving through Etowah he was overtaken and instructed to go back a short distance and wait. Approximately thirty minutes later the three reappeared with the safe in the 'turtlehull of the car'. It was unloaded at the point where it was found in the ditch. Morrow, who moved on when the safe was dumped, said that he did not see it opened, but hard sounds like a hammer on metal. All went to Morrow's home. Morrow was told by Lane that the haul had netted between twelve and fourteen hundred dollars, and he (Morrow) was given $200. He and his wife took Irene part of the way to her place of employment, but when they returned Barg, Lane, and Smith had gone. They were overtaken at Cairo, where 'motel' accomodations had been engaged for the night, but Morrow did not see Lane at that time. Barg and Smith called at his cabin, where Barg made the threat that anyone who 'snitched' on him would be killed. Morrow and hiw wife returned to Mississippi County where they remained for two or three days and then left for California. Some time later they were arrested at Salinas and brought back. While in jail Morrow confessed. Charges against Mrs. Morrow were dismissed. At the time of trial Morrow was under bond.

The defense was an alibi.

The State contends that circumstances attending the arrests of appellants are in themselves evidential. Miss Eunice Brogdon is a deputy in the office of Sheriff and Collector William Berryman. She testified that on July 20th the Sheriff told her to call Jack Curtis in Chicago, 'Sacramento 29498.' In response a man answered the telephone and said he was Jack Curtis. Miss Brogdon told him she was 'Mrs. Lee--Opal's mother'. 'Curtis' said he was anxious to get in touch with 'Sonny', that it was important; and Miss Brogdon replied, 'Well, he talked with me last night and they are in Mississippi, but will be home Saturday night or Sunday'. Miss Brogdon then inquired if he (Curtis) could be reached, and how. The reply was that a call placed Saturday night or early Sunday would be appreciated. 'Curtis' told Miss Brogdon that he was a very good friend of 'Buddy's and Opal's', and that he had stayed at their home 'a little while ago'. He then gave two telephone numbers, but explained that his name was not Curtis, but that it was Jack Barg. The numbers were 'Nevada 20716 and Nevada 20721.' Sunday morning Miss Brogdon placed a call as directed. The voice of the man who answered was similar to that of the person who gave her the telephone numbers, and she definitely recognized that the person who then said he was Barg was the same one who had first said he was Curtis, but had explained that he was Barg.

In this conversation Miss Brogdon said she was 'Opal', (Morrow's wife). Barg wanted to know where Sonny was, saying he had to get in touch with him. Miss Brogdon replied, 'Sonny didn't come: things are hot around here'. Barg insisted that he had to contact Sonny. Miss Brogdon then said, 'Well, Sonny is going to meet Irene and me at Sutton's Tourist Court Monday night at ten o'clock, and he wants you to meet us--can you?' Barg replied that he would. Miss Brogdon asked Barg if he knew where the place was. He replied that he was not certain, but when asked whether he knew where the 'Spot' was Barg said he did, or in any event he could find it. Finally Miss Brogdon said: 'Sonny said bring your tools and the other guys with you--you know what I mean?' The reply was, 'Yeah, I know what you mean, [but] what kind of a job is it? Is it the same kind of a job we did before?' The answer was, 'Well, I don't know whether it is or not: Sonny doesn't talk very much, you know, but it is something good'. He then said, 'I get you'.

Acting upon the information given by Miss Brogdon, the Sheriff and his deputies, assisted by State Policemen, stationed themselves at Sutton's Tourist Court, cabin No. 3 having been reserved in the name of Opal Morrow and Irene Rice. The appellants were arrested when they drove into the tourist court area in search of the two women and Sonny.

At trial Lane was the only defendant who testified. He is Barg's second cousin. Shortly before June 26th he was told that a night club known as the Winking Pup was for sale. Investigations revealed that it was corporation and that Harry Smith owned twenty shares of sixty-three that constituted controlling interest. Lane spent two or three days checking the business done by Winking Pup, such as counting customers, analyzing receipts as reflected by the cash register estimating the cost of operation, etc. On Friday, June 24th, he told Smith that he would buy the twenty shares, but did not want to close the deal until Saturday morning. Actually he did not take over until Saturday afternoon. In explaining this delay the witness said: 'When we got back that evening there were some beer men coming in, and whiskey men making last-minute deliveries, so we let them get through with their business. Smith then took men into the office and showed me around--showed me where the stocks were kept, and a few other things people would be interested in if they were getting into the business. Harry's brother George was there, as was Harry'.

The so-called burglary tools found in appellants' car when they were arrested [said Lane] were probably put into the tool compartment by a contractor who had been doing some work for 'Winking Pup'. The car was brought July 10th or 11th. It was a Chrysler, on which the down payment of $1,000 was made in cash. Lane thought that the three pairs of gloves might have been left on some occasion when mechanics worked on the car, or perhaps one pair was for use in driving.

Barg was the only one of the three who admitted being in this State when the crime was committed. The explanation was that he intended to purchase stock in Winking Pup. He was hopeful that relatives living in Arkansas--his father and an uncle--would advance money for the venture. Testimony corroborating Lane's alibi for himself and Smith placed them in Chicago when the burglary was committed. Its substantial nature could not be questioned here had the jury believed the witnesses. On the other hand, the defendants were definitely identified as having been seen with Morrow and elsewhere at the critical times spoken of by him, hence on the factual issue the evidence is not open to legal criticism.

Initially the appellants complain (a) that they were arrested without warrants, and (b) that they were denied preliminary hearings. The State's answer (a) is that an officer may make an...