Logan v. State, CR78-137

• Decision Date: 29 January 1979
• Docket Number: No. CR78-137,CR78-137
• Citation: 264 Ark. 920,576 S.W.2d 203
• Parties: Andrew LOGAN, Jr., Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 203

576 S.W.2d 203

264 Ark. 920

Andrew LOGAN, Jr., Appellant, v. STATE of Arkansas, Appellee.

No. CR78-137.

Supreme Court of Arkansas, In Banc.

Jan. 29, 1979.

Frank C. Elcan, II, Deputy Public Defender, West Memphis, for appellant.

Bill Clinton, Atty. Gen. by Jesse L. Kearney, Asst. Atty. Gen., Little Rock, for appellee.

GEORGE ROSE SMITH, Justice.

Logan was charged with aggravated robbery, was found guilty, and was sentenced to 25 years in prison. Three points for reversal are argued, the first of which includes subordinate contentions.

On the day of the robbery Logan and the victim, Doss Tatum, Jr., struck up an acquaintance in West Memphis, in Crittenden County, during the afternoon. Logan gave his name as Jesse Gates. The two spent several hours together, riding around in Tatum's car and drinking. At about 7:00 p. m. Logan, who was driving, stopped the car on a lonely road off a highway, drew a pistol, and robbed Tatum of $68. Logan drove away, leaving Tatum on the road. Tatum made his way to a nearby store and called the sheriff's office to report the crime. Over a period of several hours a Crittenden County deputy sheriff, J. M. Davis, investigated the case and eventually discovered that Tatum's companion had actually been the appellant, Logan.

Davis learned that Logan was at a gambling and dancing "joint" at Hicks Station, a community in adjoining St. Francis County. Davis called the sheriff's office of that county and, accompanied by Sam Hughes, a St. Francis County deputy sheriff, and by another Crittenden County officer, went to Hicks Station and arrested Logan at about 3:00 a. m. Davis took a pistol from Logan and transported him back to Crittenden County. There officers found $52.52 in Logan's pocket. A day later, under interrogation, Logan confessed to the crime and consented to a search of his apartment in West Memphis. Logan accompanied the officers to the apartment, where a watch believed to have been taken in the robbery was seized.

It is first argued that the pistol, the money, the confession, and the watch were the fruits of an illegal arrest and should not have been admitted in evidence. It is contended that Officer Davis did not have authority to arrest Logan in St. Francis County, because (1) the officer did not have a warrant, which would authorize him to make an arrest in any county under Ark.Stat.Ann. § 43-411 (Repl.1977) and under Rule 4.2 of the Rules of Criminal Procedure (1976), and (2) the officer was not in fresh pursuit of Logan. Ark.Stat.Ann. § 43-501.

We need not discuss these contentions, because it is a fair inference from Davis's testimony that Sam Hughes, the St. Francis County deputy, participated in the arrest. We quote from Davis's testimony:

Q. Do you have any commission entitling you to make an arrest . . . in St. Francis County?

A. We had a deputy sheriff out of St. Francis County with us.

Q. You made the arrest?

A. We went with him and made the arrest, yes, sir.

Q. You are the one who placed him under arrest?

A. We talked to him there. Deputy Sheriff Sam Hughes and I put him under arrest right there.

Q. Officer Davis, I think you testified the deputy's name that was with you and participated in the arrest was Sam Hughes?

A. St. Francis County Deputy Sam Hughes, yes, sir.

Q. And he is a deputy sheriff with St. Francis County

A. Sheriff's office, yes, sir.

An arrest, to be effective, does not require formal words of arrest. Reed v. United States, 401 F.2d 756 (8th Cir. 1968). The restraint is equally as important as the words. In the language of our statute: "An arrest is made by placing of the person of the defendant in restraint, or by his submitting to the custody of the person making the arrest." § 43-412.

An analogous situation involving a joint arrest by three officers was considered in Parrish v. Herron, 240 Mo.App. 1156, 225 S.W.2d 391 (1949). There the plaintiff sued a sheriff, his deputy, and a city marshal for false arrest and imprisonment. The deputy argued that he was not liable, because he did not participate in making the arrest. He was present, however, and later guarded the arrested person while the arresting officer made a search. In holding the deputy liable the court said: "It is well established that all persons who directly procure, aid, abet, or assist in an unlawful imprisonment are liable as principals." Even though it was Officer Davis who actually told Logan that he was under arrest, we think it clear that Officer Hughes was also present in his capacity as a deputy sheriff and participated in making the arrest. If that is not true, the record does not suggest any reason for Officer Davis to request the local officer to accompany him to Hicks Station.

Since the arrest was legal without regard to fresh pursuit, there was no requirement that Logan be taken before a St. Francis County magistrate under the Intrastate Fresh Pursuit Act. § 43-502. Criminal Procedure Rule 8.1 merely requires that an arrested person be taken before a judicial officer without unnecessary delay. The arrest occurred at about 3:00 a. m. on Sunday, and Logan was taken before the municipal court on Monday morning. His interrogation and the consent to the search of his apartment did not occur until Monday afternoon. We find no violation of his rights in this respect. Nor do we find any basis for overturning the trial judge's finding that the confession was voluntary.

It is argued that the $52.52 taken from Logan after his arrest was not admissible, because the victim did not testify about the denominations of the bills or other particular characteristics of the money. The facts stated in Patrick v. State, 255 Ark. 10, 498 S.W.2d 337 (1973), are so incomplete that we do not regard that opinion as holding that such identifying characteristics must be shown before money can be admitted in evidence. Tatum testified that $68 was taken from him, and Logan was found about eight hours later with $52.52 in his pocket. The evidence was relevant under our statutory definition: " 'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Uniform Rules of Evidence, Rule 401, Ark.Stat.Ann. § 28-1001 (Repl.1962). That Logan had almost the amount of money that was taken was a relevant fact. Moreover, there could have been no prejudice even if the evidence had been inadmissible, for Logan admitted in his confession that he took $52 from the victim.

Again, it is argued that the watch found at Logan's apartment should have been excluded, because the officer making the search did not give Logan a receipt describing the watch. Rules of Criminal Procedure, Rule 11.4. The Commentary to Article IV of the rules (following Rule 10.1) explains the purpose of the receipt: "Such a receipt informs the person that the seizure is under color of law and may be of evidentiary value in a subsequent proceeding under Rule 15 for the return of seized things." Neither purpose for the receipt is pertinent here. Evidence seized illegally is inadmissible, because otherwise the constitutional prohibition of unreasonable searches and seizures would not be a deterrent to law enforcement officers. But the constitution does not require the giving of the receipt, and we consider the rule to be merely directory.

Finally, Officer Davis testified in response to a question that when Logan was transported back to Crittenden County he made no objection to being brought back. Counsel moved for a mistrial, on the ground that the testimony violated Logan's constitutional right to remain silent. If so, any possible prejudice could readily have been eliminated by an admonition to the jury, but that remedy was not...