Marshall v. State
| Decision Date | 03 May 1971 |
| Docket Number | No. 5571,5571 |
| Citation | 250 Ark. 585,466 S.W.2d 920 |
| Parties | Robert L. MARSHALL, Appellant, v. STATE of Arkansas, Appellee. |
| Court | Arkansas Supreme Court |
W. M. Herndon, No. Little Rock, for appellant.
Ray Thornton, Atty.Gen., Ken Stoll, Asst.Atty.Gen., Little Rock, for appellee.
This appeal by Robert L. Marshall from his conviction of the attempted burglary of the McSpadden Drug Store in North Little Rock is grounded upon his argument that the evidence was not sufficient to present a jury question. We think that it was.
The drug store was equipped with a burglar alarm system connected by direct line on the telephone system with speakers in the respective bedrooms of the McSpadden brothers, who owned the drug store. David McSpadden testified that he was awakened by sounds from the speaker at about 1:30 a.m., January 8. His brother called the police. The two then proceeded to the store, arriving about 10 minutes after the sounds were first heard. When they arrived they found three police cars and three or four policemen at the scene. The police had taken into custody two persons, whom the McSpaddens could not identify, and were bringing them, handcuffed, around the building where the drug store was located toward one of the police cars, in which they were then placed and taken to the police station. Inspection revealed that the roof of the drug store had been cut from the outside and some of the decking broken.
The weather was quite cold, and some snow had fallen earlier. As David McSpadden recalled there was quite a bit of snow on the ground around the buildings but not on the streets, and the sidewalks were not covered with snow. There was a marquee on the front of the building over the sidewalk. A barber shop and a washateria were near the drug store building.
Traffic Patrolman Larry Dubose was patrolling about two blocks from the drug store when the incident was reported to him at about 1:30 a.m. He testified that he arrived at the drug store a minute or so later and proceeded to check the doors of the building and walked around to the back of it. By this time, three other police officers had arrived. He said he noticed more than one set of footprints in the snow leading up on the back of the store via a roof or a shed. According to him there was about one-half inch of snow in this area, and the footprints were clearly visible and freshly made. Dubose followed the footsteps up on top of the store building. He testified that he found three crowbars, a hammer, a small chisel, a screwdriver, an open knife, two saws and some rope. He observed footprints on the roof leading over to the side of the building. He turned the tools he found over to Officer McFarlin when he came down. At that time McFarlin and Officer Lange had appellant Marshall and a man named Tommy Lawson in their custody.
Officer Lange was only two or three minutes' travel away when he received the call from the police department. He testified that, upon arrival, he saw Marshall and Lawson about 50 feet from the building walking westwardly away from it. Patrolman McFarlin received the call at about 1:38 a.m., and arrived shortly thereafter. He testified that he started checking the drug store doors, but that Dubose came to the front of the building and reported that this had already been done. According...
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Tarkington v. State, 5494
...Lacy v. State, supra. Resolution of conflicts in the testimony of the prosecutrix was also a jury function. Marshall v. State, 250 Ark. ---, 466 S.W.2d 920 (May 3, 1971). The next group of points argued by appellant turns upon his argument that a lineup identification, when he was without t......