Liberto v. State

• Decision Date: 23 March 1970
• Docket Number: No. 5468,5468
• Citation: 451 S.W.2d 464,248 Ark. 350
• Parties: Joe LIBERTO and James H. Mothershed, Appellants, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 464

451 S.W.2d 464

248 Ark. 350

Joe LIBERTO and James H. Mothershed, Appellants, v. STATE of Arkansas, Appellee.

No. 5468.

Supreme Court of Arkansas.

March 23, 1970.

Thomas C. Pitts, Ft. Smith, for appellants.

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

BYRD, Justice.

Appellants Joe Liberto and James H. Mothershed were convicted of keeping a gambling house contrary to Ark.Stat.Ann. § 41--2001 (Repl.1964), which provides:

'Every person who shall keep, conduct or operate, or who shall be interested, directly or indirectly, in keeping, conducting or operating any gambling house, or place where gambling is carried on, or who shall set up, keep or exhibit, or cause to be set up, kept or exhibited, or assist in setting up, keeping or exhibiting, any gambling device, or who shall be interested directly, or indirectly in running any gambling house, or in setting up and exhibiting any gambling device or devices, either by furnishing money, or other articles for the purpose of carrying on any gambling house, shall be deemed guilty of a felony, and on conviction thereof, shall be confined in the State penitentiary for not less than one (1) year nor more than three (3) years.'

For reversal, appellants rely upon the following eight points:

I. The court erred in overruling the defendants' motion to suppress the evidence and quash the search warrant.

II. The court erred in permitting Clyde Miller, a witness for the State, to introduce and testify that certain pieces of paper were betting slips based upon hearsay evidence or what an informant told him they were.

III. The Court erred in permitting Bill Young, a witness for the State, to testify as to conversations he had with persons on the telephone while the officers were in the process of executing the search warrant.

IV. The Court erred in permitting Forrest Reynolds, a witness for the State, to testify about telephone calls placed to and from the telephones in the defendant Mothershed's home, based upon the records of the local Southwestern Bell Telephone Company.

V. The Court erred in permitting Johnny Etter, a witness for the State, to testify pertaining to blocks of accoustical material with numbers thereon which he had no personal knowledge of.

VI. The Court erred in overruling the defendants' motion for a directed verdict at the conclusion of the State's case.

VII. The Court erred in refusing to give defendants' requested instructions number one, two and three.

VIII. The verdict of the jury is based upon speculation and conjecture.

The record shows that Ralph Hampton, a Fort Smith Police officer, was investigating alleged gambling law violations. About 8:55 A.M. on February 11, 1969, he was in the Continental Restaurant and observed Mr. Liberto enter and go to the cashier's stand where he deposited a substance of paper resembling a folded newspaper. When Hampton went by the cashier's stand he observed on the paper the words 'daily racing form' and that the female cashier put it under the stand. At about 9:05 A.M. on the same date he observed Mr. Liberto n Midland Boulevard going to an establishment with a sign outside, 'Martin's Garage'. On February 14, at 8:00 A.M. he again observed Mr. Liberto at the Continental Restaurant. Mr. Liberto there got out of his vehicle with a sheaf of folded paper about 1/2 inch thick. Mr. Liberto went into the restaurant and came out in a minute or two empty-handed. Officer Hampton then followed Liberto and observed him make a series of stops at various businesses. In each instance Liberto got out of his car with a folded piece of paper in his hand, entered the business, stayed very briefly and came out empty-handed. Again Liberto went to Martin's Garage on Midland Boulevard and stayed until officer Hampton left.

Captain Bill Young of the Fort Smith Police Department was also engaged in investigating gambling activities in the city. He knew both Mr. Mothershed and Mr. Liberto. At about 10:00 A.M. on February 10th he saw Mr. Mothershed in the Continental Restaurant. When Mothershed finished his coffee he went to the check-out stand, paid his check and handed the waitress a piece of rolled-up paper with some money sticking out of it, which she put in her pocket. He had seen Mothershed carry papers that looked like newspapers in and out of his apartment. Captain Young was at Mothershed's apartment when officers were searching the apartment. While there he answered three telephone calls; one lady wanted 'Joe' to bring some racing forms, one lady wanted to place a bet and a man asked if the 'scratch' sheet was out. This all occurred while the raid was going on. Captain Young did not give Mr. Mothershed an opportunity to talk to any of the people that called. Officer Clyde Miller testified that he also was engaged in investigation of gambling activities. On February 10, he saw Mr. Mothershed at the Continental Motel Restaurant. When Mothershed finished eating, walked to the cash register and paid his bill, he handed the waitress a guest check with some money which she put under the counter. On February 11, he saw Mr. Liberto go to apartment 7 at 1118 North J Street (Mothershed's apartment) with a racing form. On the 13th, Mr. Liberto again went to the apartment with racing forms--in fact, both defendants had been seen going to the apartment with racing forms. On February 17, Officer Miller, together with other officers, went to Mothershed's apartment with a search warrant for apartments No. 4 and 7. At that time officer Miller served the search warrant upon Mr. Mothershed and Mr. Liberto who were in Apartment #7. In the apartment they found two racing forms, two telephones, one numbered SU 3--4702 in the living room, and SU 3--4786 in the bedroom. Mr. Liberto tried to stuff some papers, etc., down the drain but Captain Miller stopped him. In this raid they obtained a black notebook marked off with letters A, B, C, D, E, F and so forth. Also a small hand stapler, a box of staples, rubber bands, scratch pads and betting slips were found in a cabinet drawer. In the trash can they also found some scratch pads and torn-up betting slips. During the search of the apartment, appellant Mothershed stated to the officers, 'Boys, that's what you're looking for,' referring to betting slips and other articles introduced as evidence. Mothershed also stated to Captain Miller, 'Boys, we're going to do it. You may as well leave us alone. Gambling is just like drinking whisky. People are going to gamble--they're going to drink whisky. It's my job. I'm not going to stop.'

Another officer, Johnny Etter, testified that he found some peg boards underneath a kitchen cabinet in apartment 7 and that he did not know what Mothershed was using the peg boards for.

Forrest Reynolds, a Southwestern Bell Telephone Company employee, testified about telephone company records of numerous calls made from the telephones in appellants' premises to various cities and collect calls from various cities to appellants' telephones. Some of the cities were Hot Springs, Las Vegas, and San Pedro, California. No objection was made to the testimony of this witness but when the records were introduced appellant did object but saved no exceptions.

POINT I. Appellants, in arguing that there was no probable cause for the issuance of search warrants, admit that the affidavit on its face might be sufficient grounds for issuance of the search warrant, but then argue that when we examine the facts upon which the affidavit was based they fall far short of the standards of probable cause for the issuance of a search warrant required by Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).

The affidavit sworn to by Officer Miller, upon which the search warrant was issued, provides:

'That he has reason to believe that on the premises known as 1118 North J Apartments No. 4 and No. 7 in the ...