Miller v. State

• Decision Date: 18 October 1965
• Docket Number: No. 5126,5126
• Citation: 239 Ark. 836,394 S.W.2d 601
• Parties: Jesse MILLER and Leland Miller, Appellants, v. The STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 601

394 S.W.2d 601

239 Ark. 836

Jesse MILLER and Leland Miller, Appellants, v. The STATE of Arkansas, Appellee.

No. 5126.

Supreme Court of Arkansas.

Oct. 18, 1965.

W. B. Howard, Jack Segars, Jonesboro, John C. Watkins, Paragould, for appellants.

Bruce Bennett, Atty. Gen., by Russell J. Wools, Asst. Atty. Gen., Little Rock, for appellee.

ROBINSON, Justice.

The appellants were charged by felony information with crime of grand larceny. Later, the information was amended by making the additional charge that appellant Jesse Miller had previously been convicted of the crime of burglary, and the additional charge that Leland Miller had previously been convicted of the crime of arson. A prior conviction increases the minimum penalty for the crime for which the defendant is then on trial. Ark.Stat.Ann. § 43-2328 (Repl.1964).

At the beginning of the trial, defendants entered pleas of guilty, out of hearing of the jury, to that part of the information charging previous convictions, and pleaded not guilty to the principal offense charged. Counsel for defendants then filed a motion asking the trial court to instruct the prosecuting attorney not to read to the jury that part of the information charging previous convictions, and not to mention the previous offenses in the presence of the jury. Defendants' counsel stated that the defendants would not testify in the case. The motion was overruled; the prosecuting attorney called the jury's attention to that part of the information charging previous convictions, and to the fact that appellants had pleaded guilty to that part of the information. The pleas of guilty to the charge of previous convictions were also mentioned by the court in the instructions to the jury.

The specific question before the court at this time is whether the action of the trial court in permitting the previous convictions to be called to the attention of the jury deprived defendants of a fair trial within the meaning of the U. S. Constitution, Amendments 5, 6, and 14.

The court said in Lane v. Warden, Maryland Penitentiary, 4 Cir., 320 F.2d 179 (1963): 'It is a rule not now subject to challenge that constitutional due process of law requires a fair hearing in a fair tribunal. Although the Constitution does not demand the use of jury trials in a state's criminal procedure, where a jury trial is provided it must be a fair trial.' Citing, Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751; Fay v. People of State of New York, 332 U.S. 261, 67 S.Ct. 1613, 91 L.Ed. 2043; Palko v. State of Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288; Hughes v. Heinze, 9 Cir., 268 F.2d 864, Baker v. Hudspeth, 10 Cir., 129 F.2d 779. The court said in Baker v. Hudspeth, supra:

'The denial of a fair and impartial trial, as guaranteed by the 6th Amendment to the Constitution, is also a denial of due process, demanded by the 5th and 14th Amendments, and the failure to strictly observe these constitutional safeguards renders a trial and conviction for a criminal offense illegal and void and redress therefor is within the ambit of habeas corpus.' Citing many U.S. Supreme Court cases.

The court said in Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168:

'Courts that follow the common-law tradition almost unanimously have come to disallow resort by the prosecution to any kind of evidence of a defendant's evil character to establish a probability of his guilt. Not that the law invests the defendant with a presumption of good character, Greer v. United States, 245 U.S. 559, 38 S.Ct. 209, 62 L.Ed. 469, but it simply closes the whole matter of character, disposition and reputation on the prosecution's case-in-chief. The State may not show defendant's prior trouble with the law, specific criminal acts, or ill name among his neighbors, even though such facts might logically be persuasive that he is by propensity a probable perpetrator of the crime. The inquiry is not rejected because character is irrelevant; on the contrary, it is said to weigh too much with the jury and to so overpersuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge. The overriding policy of excluding such evidence, despite its admitted probative value, is the practical experience that its disallowance tends to prevent confusion of issues, unfair surprise and undue prejudice.'

Many times we have held that evidence of other crimes committed by a defendant is not admissible to prove his guilt of the crime for which he is then on trial. Williams v. State, 183 Ark. 870, 39 S.W.2d 295; Ware v. State, 91 Ark. 555, 121 S.W. 927; Alford v. State, 223 Ark. 330, 266 S.W.2d 804.

In the case at bar, previous convictions of crimes were charged in the information. The burden was on the state to prove previous convictions as charged. It can be argued that it was necessary for the jury to know about the previous convictions in order to fix the punishment as provided by statute where previous convictions are alleged in the indictment. It will be recalled, however, that the defendants had pleaded guilty to that part of the information charging previous convictions.

We have heretofore dealt with the question to some extent. In Rowe v. State, 224 Ark. 671, 275 S.W.2d 887 (1955), it is pointed out that the information charged a previous conviction, and evidence was, therefore, admissible to prove the charge. The case is distinguishable from the case at bar because in the Rowe case there was no plea of guilty to the previous conviction; in the case at bar there was such a plea.

In Clubb v. State, 230 Ark. 688, 326 S.W.2d 816, (1959), the defendant filed a motion to strike from the information the charge of a previous conviction. The motion was overruled. In affirming the trial court it was held there was no error in giving the state an opportunity to prove the charges.

Higgins v. State, 235 Ark. 153, 357 S.W.2d 499 (1962) was reversed because the state was allowed to introduce inadmissible evidence in an effort to prove a previous conviction charged in the information. In that case we indicated disapproval of a procedure whereby the question of whether a defendant had been convicted previously would be determined by a jury at the same time that defendant's guilty or innocence of the current offense charged was under consideration. But we also said we thought a change in procedure should be adopted by the Legislature, and not by this court. The constitutional aspect of the matter was not discussed.

The Higgins case was decided prior to Lane v. Warden, Maryland Penitentiary, 4 Cir., 320 F.2d 179 (1963). In the State of Maryland, the procedure for proving a previous conviction was similar to the practice heretofore prevailing in Arkansas. The previous conviction was proved during the trial of the current offense for which the defendant was then accused. In Lane v. State, 226 Md. 81, 172 A.2d 400, in the trial on the merits, the defendant, before the commencement of the trial, demurred to that part of the indictment charging a previous offense. The demurrer was overruled, and the action of the trial court in that regard was affirmed by the Supreme Court of Maryland. Certiorari was denied by the Supreme Court of the United States. 368 U.S. 993, 82 S.Ct. 611, 7 L.Ed.2d 529. Later, Lane filed in the U. S. District Court for the District of Maryland, a petition for a writ of habeas corpus alleging that by introducing evidence of a previous conviction the State of Maryland had denied him a fair trial on the principal charge on which he was tried. The petition was denied, and Lane appealed to the U. S. Court of Appeals, 4th Circuit. The Court of Appeals held that in trying the charge of a previous conviction along with the primary charge against Lane he was denied a fair trial within the meaning of the 5th, 6th, and 14th Amendments to the Constitution.

The state's position was much stronger in the Lane case than is the state's position in the case at bar. In the Lane case there was no plea of guilty to the charge of having been convicted of a previous offense, whereas in the case at bar there was such a plea, and here it was, therefore, unnecessary for the state to prove the charge. In Lane v. Warden, Maryland Penitentiary, supra, the court said: 'We reach the conclusion that under the facts of this case the reading to the jury, at the commencement of Lane's trial, of that portion of the indictments relating to his prior convictions destroyed the impartiality of the jury and denied him due process of law.'

In the case at bar, the state has cited Breen v. Beto, 5 Cir., 341 F.2d 96 (1965) as holding to the contrary of Lane. True, the Court of Appeals, 5th Circuit, did refuse to follow Lane decided by the 4th Circuit, but in the Breen case the court quoted from Crocker v. State of Texas, Tex.Civ.App., 385 S.W.2d 392, as follows:

'Though the jury in this State assesses all punishment, except in those cases where the punishment is fixed by law, this Court has in the Ex parte Reyes, Pitcock and McConald cases, supra, approved the practice of permitting the accused to stipulate as to the prior convictions and thereby relieve the State of the necessity of reading to the jury that portion of the indictment which charges them and adducing proof before the jury of such prior convictions.' Salinas v. State, Tex.Cr.App., 365 S.W.2d 362; Pitcock v. State, Tex. Cr.App., 367 S.W.2d 864; McDonald v. State, Tex.Cr.App., 385 S.W.2d 253.

As heretofore pointed out, prior to the Lane case, in our own case of Higgins v. State, 235 Ark. 153, 357 S.W.2d 499, we had expressed the feeling that it was not fair to introduce evidence of previous convictions during the trial for the primary crime then charged. We felt, however, that the change in procedure was a matter that addressed itself to the Legislature. But in the Lane case, the Federal Court has said that such procedure is...