McDonald v. State, CR79-52
| Decision Date | 18 June 1979 |
| Docket Number | No. CR79-52,CR79-52 |
| Citation | 582 S.W.2d 272,266 Ark. 56 |
| Parties | Danny Ray McDONALD, Appellant, v. STATE of Arkansas, Appellee. |
| Court | Arkansas Supreme Court |
Danny Ray McDonald, pro se.
Steve Clark, Atty. Gen., by Ray E. Hartenstein, Asst. Atty. Gen., Little Rock, for appellee.
Appellant Danny Ray McDonald was charged with aggravated robbery in violation of Ark.Stat.Ann. § 41-2102 (Repl.1977) and with being a habitual offender, Ark.Stat.Ann. § 41-1001 (Repl.1977). The jury found him guilty as charged and fixed his punishment at imprisonment for 16 years and 2 months and a fine of $6,080. For reversal he raises the issues hereinafter discussed.
The proof on the part of the State stated in the light most favorable to the jury's verdict, shows that appellant took $80 from the office area of Gene's Family Market. Eddie Caraway, an employee in the store, gave chase until appellant pulled a knife from his back pocket. Other witnesses, including a friend and an accomplice, furnished direct and circumstantial evidence identifying appellant as the person who fled from the pursuit of Caraway.
With respect to the offense of aggravated robbery, Ark.Stat.Ann. § 41-2102 (Repl.1977) provides:
"(1) A person commits aggravated robbery if he commits robbery as defined in section 2103 (Ark.Stat.Ann. § 41-2103 (Repl.1977)) and he:
(a) is armed with a deadly weapon, or represents by word or conduct that he is so armed, . . .
Ark.Stat.Ann. § 41-2103 (Repl.1977) provides:
(1) A person commits robbery if with the purpose of committing a theft or resisting apprehension immediately thereafter, he employs or threatens to immediately employ physical force upon another."
Under the proof presented, we must hold that the evidence is sufficient to sustain the jury's finding that appellant was guilty of aggravated robbery.
We can find no merit in his contention that he was entitled to have the jury instructed on theft pursuant to Ark.Stat.Ann. § 41-2203 (Repl.1977). Under Ark.Stat.Ann. § 41-2203, Supra, "a person commits theft of property if he . . . knowingly takes or exercises unauthorized control over . . . the property of another." However, to prove robbery the State only has to show that there was an intent to commit a theft. Consequently, the offense of theft of property is not a lesser included offense in a charge of the crime of burglary. See Ark.Stat.Ann. § 41-105(2) (Repl.1977).
Appellant is correct in his contention that the trial court erred in submitting the issue of a habitual offender, Ark.Stat.Ann. § 41-1001 (Repl....
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Jones v. State of Ark.
...punishment under the general sentencing statute. Ellis 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). We conclude that the erroneous application of the habitual offender prejudiced Jones. 13 C. We hold that sentencing Jones un......
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Shelton v. State, CR
...a person in jeopardy for the same offense. Therefore, I would reverse and remand or do as we did in the case of McDonald v. State, 266 Ark. 56, 582 S.W.2d 272 (1979). I am authorized to state that MAYS, J., joins me in this ...
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