Miller v. State

• Citation: 250 Ark. 199,464 S.W.2d 594
• Decision Date: 15 March 1971
• Docket Number: No. 5--5530,5--5530
• Parties: Paul H. MILLER et al., Appellants, v. STATE of Arkansas, Appellee.
• Court: Supreme Court of Arkansas

Page 594

464 S.W.2d 594

250 Ark. 199

Paul H. MILLER et al., Appellants, v. STATE of Arkansas, Appellee.

No. 5--5530.

Supreme Court of Arkansas.

March 15, 1971.

Vincent E. Skillman, Jr., West Memphis, and Jay Fred Friedman, Memphis, Tenn., for appellants.

Joe Purcell, Atty. Gen., Don R. Rebsamen, Asst. Atty. Gen., Little Rock, for appellee.

BYRD, Justice.

Appellants Paul H. Miller, Raymond Rowell and Charles A. Barron along with James E. Cox were found guilty of obtaining property by false pretense. For reversal appellants raise the issues hereinafter discussed.

Lena F. Martin, about 85 years old, was the widow of a Cross County Bank officer at Wynne, Arkansas. When the bank's management observed some excessive checks on her account, the bank personnel were instructed to require identifcation of anyone presenting her checks and to ask the bearer what the check was for. Between November 21, 1968 and December 30, 1968, over $4,000 was withdrawn by checcks made payable to appellants or Cox. In each instance the check was submitted for payment on the day it was dated, the bearer identified himself by driver's license or social security number and stated that the check was for roofing repairs to Mrs. Martin's home. The State's evidence shows that less than $100 worth of repairs were made to the home during that time.

Point #1. The record shows that the trial date was set six months earlier and two days before the trial date, the parties announced ready for trial. On trial date appellants made motions to quash the information which the trial court denied. We can find no abuse of discretion by the trial court. See Ark.Stat.Ann. § 43--1206 (Repl. 1964), Thurman v. State, 211 Ark. 819, 204 S.W.2d 155 (1947), and Beckwith v. State, 238 Ark. 196, 379 S.W.2d 19 (1946).

Point #2. The trial court did not abuse its discretion in refusing appellants' motions for a severance. See Ballew v. State, 246 Ark. 1191 (June 2, 1969), 441 S.W.2d 453. Furthermore, since the trial court struck all portions of the confessions of Cox and Barron referring to the other defendants, no problem of confrontation arose contrary to the holding in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). See Mosby v. State, 246 Ark. 963 (May 12, 1969), 440 S.W.2d 230.

Point #3. We find no error in the admission of the testimony of lay witnesses as to the mental capacity or competency of Mrs. Martin. See Hill v. State, 249 Ark. --- (Sept. 28, 1970), 458 S.W.2d 45. As we read the record each witness stated the facts upon which his observations and conclusions of Mrs. Martin's mental condition were made.

Point #4. After Robert A. Smith, a builder with 15 years experience, testified that if any repairs had been made to Mrs. Martin's home during November and December 1968, they would have been discernible at the time he inspected the building, his testimony was competent to show the amount of repairs made. Appellants' argument that it would be impossible for any witness fifteen months after the repairs to give an opinion of the value of the repair work done, goes to the credibility of the testimony and not its admissibility.

Point #5. Relying upon Bruton v. United States, supra, appellants contend that the trial court erred in admitting the confession of codefendant Cox into evidence. We disagree. The trial court deleted all portions of the confession having reference to appellants. This we understand to be permissible. See Mosby v. State, supra.

Point #6. The information alleged that on the 26th day of November, $886.50 in money was obtained under false pretenses. At the trial it developed that the prosecuting attorney in drawing the information had transposed the figures and that the exact amount of the check was $686.50. The trial court did not err in amending the information because there was no material variance and no prejudice shown. See Ark.Stat.Ann. § 43--1012 (Repl. 1964).

Point #7. Here appellants argue that the trial court erred in refusing their motion and request to instruct the jury that there was, as a matter of law, no conspiracy between appellants. The motion of appellants appears at page 279 of the record and is as follows:

'Mr. Skillman: Your honor, let me make it clear. By the term as used in the Information, the State is attempting to show that there was a collective action by these defendants on all of the sub-paragraphs thereto, with exception of sub-paragraph 4. Now, sub-paragraph 4 dealt with, or does deal with, as to Holmes, which is not involved in this particular instance today. I understand him not to be included. But that leaves 1, 2, 3, 5, 6 paragraphs of the Information wherein the State is alleging that the four defendants today jointly conspired by a common scheme and method and design. There is no evidence showing there was any common scheme, design, and plan. We say that each should be treated separate, distinct, and apart for this reason: if it is not, then Mr. Pearson can allege and claim that these four all got together and they did go at separate times to get these amounts of money, as they say, by false pretense. We say to that, there is no showing that they all benefitted in the fruits of this, or there was in fact a false pretense, and if the Court does find that they all benefitted in the fruits of this, or there was in fact a false pretense, and if the Court does find that there was no joint common scheme or plan, we are entitled to an instruction that the defendants, the charges against them, are to be treated as separate and distinct, even though they may be tried together, and it would prohibit the State from referring to such a common scheme, plan or design.'

After listening to argument by ap...