Leggins v. State, CR79-178
| Citation | 267 Ark. 293,590 S.W.2d 22 |
| Decision Date | 03 December 1979 |
| Docket Number | No. CR79-178,CR79-178 |
| Parties | James LEGGINS, Appellant. v. STATE of Arkansas, Appellee. |
| Court | Arkansas Supreme Court |
John W. Achor, Public Defender by Sandra Beavers, Deputy Public Defender, Little Rock, for appellant.
Steve Clark, Atty. Gen. by Catherine Anderson, Asst. Atty. Gen., Little Rock, for appellee.
One James Leggins was convicted in the Pulaski County Circuit Court of two counts of aggravated robbery. The jury found he was an habitual criminal, having two prior convictions, and he was sentenced to 30 years imprisonment on each count, the terms to be served consecutively.
The sole argument of error on appeal is that the trial court erred in permitting evidence of a prior conviction of one James Ligion to be submitted to the jury as a prior conviction of this defendant who was named James Leggins in the information.
We agree this was error which requires us to reverse the judgment.
A Mississippi County conviction, submitted to the jury as a prior conviction, read James Leggins. To this conviction there was no objection. A Crittenden County Circuit Court conviction read James Ligion. The only evidence of this conviction was simply a certified copy of the judgment and an order of commitment offered by the State with no explanation. The judge permitted it to go to the jury as evidence of a previous conviction of the appellant. There was no reference to an alias in any of the documents. Leggins' counsel objected to the Crittenden County conviction being admitted but the trial court permitted it noting that the variation in spelling was a matter of weight to be attached to the document and not one affecting its admissibility.
The prosecuting attorney argued to the jury that the two documents of previous convictions were uncontradicted, introduced in good faith by the State, allowed as evidence by the trial court as convictions of Leggins; none of this was rebutted by any evidence from the defendant.
On appeal the State argues the jury had other evidence which could justify their finding that James Leggins and James Ligion were the same person.
A waiver of rights form was signed by this defendant as James Legion. So was his statement. These documents were introduced during the trial of the case but were not referred to during the sentence phase of the trial. However, we have to assume that the jury had the benefit of this evidence when it found that the appellant had two previous convictions.
Was the jury's finding, that this defendant, charged as James Leggins, is the same person as one convicted in Crittenden County Circuit Court, charged as James Ligion, supported by substantial evidence? We think not.
Proof of previous convictions is governed by Ark.Stat.Ann. § 41-1003 Et seq. (Repl.1977). The jury, or the trial judge sitting as a jury, hears evidence on this issue after the trial. A previous conviction must be proved by " . . . any evidence that satisfies the trier of fact beyond a reasonable doubt . . .." Ark.Stat.Ann. § 41-1003.
The following are sufficient to support such a finding:
(1) The jury shall first hear all evidence relevant to the felony with which defendant is currently charged and shall retire to reach a verdict of guilt or innocence on this charge.
(2) If the defendant is found guilty of the felony, the same jury shall sit again and hear evidence of the defendant's previous felony convictions or previous findings of the defendant's guilt of felonies. Defendant shall have the right to hear and controvert such evidence and to offer evidence in his support.
(3) The jury shall retire again, and if it finds that the defendant has previously been convicted or found guilty of two (2) or more felonies, the jury shall consider the previous convictions or findings of guilt in determining the sentence to be imposed for the felony of which the defendant currently stands convicted. Ark.Stat.Ann. § 41-1005.
A defendant may controvert such evidence and offer evidence to rebut the State's. Ark.Stat.Ann. § 41-1005. However, the burden remains on the State at all times to prove such convictions beyond a reasonable doubt.
The prosecuting attorney offered no evidence that this defendant was James Ligion. He referred to the State's good faith, the judge's action in permitting the document to be admitted and the fact that the defendant could prove it was not he, if that was the case.
We cannot stretch Leggins to be the same as Ligion. Nor can we stretch Leggion to be Ligion. The doctrine of Idem sonans, which is that absolute accuracy in spelling names is not required if the names, though spelled differently, sound practically identical, cannot work to support the jury's findings.
Some cases applying that doctrine support our conclusion. In Woods v. State, 123 Ark. 111, 184 S.W. 409 (1916), we held "Woods" was not the same as "Wood", commenting that the "s" at the end of a name is not silent and that...
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...v. State, 270 Ark. 243, 603 S.W.2d 891, 892 (1980); McDonald v. State, 266 Ark. 56, 582 S.W.2d 272, 274 (1979); Leggins v. State, 267 Ark. 293, 590 S.W.2d 22, 24 (1979); McConahay v. State, 257 Ark. 328, 516 S.W.2d 887 (1974); Richards v. State, 254 Ark. 760, 498 S.W.2d 1, 2 (1973); see als......
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