Mobley v. State, 5632

• Decision Date: 22 November 1971
• Docket Number: No. 5632,5632
• Citation: 251 Ark. 448,473 S.W.2d 176
• Parties: Robert J. MOBLEY, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 176

473 S.W.2d 176

251 Ark. 448

Robert J. MOBLEY, Appellant, v. STATE of Arkansas, Appellee.

No. 5632.

Supreme Court of Arkansas.

Nov. 22, 1971.

R. W. Laster, Little Rock, for appellant.

Ray Thornton, Atty. Gen., Milton Lueken, Asst. Atty. Gen., Little Rock, for appellee.

FOGLEMAN, Justice.

Appellant was convicted of obtaining property from Cash Wholesale Company under false pretenses on December 1, 1969. He contends that the circuit court committed reversible error when it refused to permit Otis Green to testify on behalf of appellant. We agree.

The evidence on behalf of the state showed that a man who represented himself to be James Higgins appeared at the Cash Wholesale Company on December 1, 1969, at approximately 11:00 a.m., and placed a substantial order as the purported representative of Salem Furniture Company. As a part of the transaction, 30 watches were delivered to Higgins, but the salesman told him that the balance of the order could not be picked up until 2:30 p.m. The real purpose of the delay was to allow time for a credit investigation. Investigation disclosed that the address given for Salem Furniture Company in Little Rock was a false one and no such company could be located in Little Rock. The salesman said that appellant Mobley was the man who represented himself as Higgins but that his hair was sandy brown on that date, unlike its color on the day of trial. Another salesman corroborated this identification, but said that on December 1, 1969, the man who called himself Higgins has sandy blond hair and did not wear glasses.

After the state completed its evidence in chief and rested, the court was recessed for lunch. When the court reconvened, appellant's attorney called Otis Green to the witness stand, and the circuit judge observed that he had been in the courtroom all morning. Appellant's attorney replied that he had caused a subpoena to be issued for this witness during the noon recess. When the witness admitted that he had been in the courtroom all morning, and had heard all the testimony in the case, the judged ruled that he could not testify.

By proffer, it was shown that Green would state that he saw appellant before noon on December 1, 1969, and again at 2:30 p.m. on the same date, that he was the prosecuting witness against Mobley on a charge relating to the taking of money by Mobley on that day, that he had known Mobley for four years and that the appellant's hair was neither blond nor red on that date, and also would state that he had been subpoenaed during the lunch recess.

Another witness testified that he had known appellant 25 years and knew that his hair was neither blond nor red on December 1, 1969. Mobley testified that he never went without glasses and had never dyed his hair and that Green knew that his hair was not dyed on December 1, 1969.

While appellant contends the invocation of the rule for sequestration of witnesses is not disclosed by the record, it does appear that the circuit judge had earlier referred on two occasions to the state's witnesses being 'under the rule.' It usually lies within sound judicial discretion whether a witness, who has been in the courtroom in spite of a rule excluding witnesses therefrom, should be permitted to testify. Appellant's attorney stated that he was not aware of Green's presence in the courtroom or his identity until the noon recess. His statement went unchallenged.

The issue in this case turned upon the identity of the perpetrator of the fraud and appellant's claim of alibi. In virtually identical circumstances, we held that refusal to permit such a witness to testify was an abuse of discretion, even though the testimony would have only been corroborative of that of another witness. Harris v. State, 171 Ark. 658, 285 S.W.2d 367. Appellant's argument on this point is even stronger than was that of Harris, because Green could hardly be expected to be favorably disposed toward appellant. We must reverse this judgment for the abuse of discretion in not permitting Green to testify.

Appellant's request that he be permitted to withdraw certain documents purportedly signed by him for the purpose of making and procuring comparisons with his own handwriting was not made until after trial for the purpose of his motion for new trial. Although there was no abuse of discretion in the denial of this request made at that time, appellant made the denial a ground for his motion for new trial and advanced the point on appeal. Obviously, this point will arise on retrial, so we must consider it.

This particular question has never been presented to this court. We have no statute governing discovery in criminal cases, and we have held the civil discovery act inapplicable. Edens v. State, 235 Ark. 996, 363 S.W.2d 923. But we recognized long ago that there are circumstances in which an accused may be entitled to examine and inspect documentary evidence in possession or under the control of the prosecution, when it is admissible in evidence. Jones v. State, 213 Ark. 863, 213 S.W.2d 974. It is rather generally recognized that a trial court has discretionary power, even in the absence of statute, to permit inspection of relevant, material, admissible evidence in the prosecutor's possession and control, but not his work product, whenever necessary for a fair trial or in the interest of justice. 7 A.L.R.3d 8, 19, 36, 57.

In considering this problem in People ex rel. Lemon v. Supreme Court, 245 N.Y. 24 156 N.E. 84, 52 A.L.R. 200 (1927), the revered Justice Cardozo, after reviewing Rex v Holland, 4 Durn. and E 619, decided in 1972--a case which he called the point of departure as the subject relates to criminal cases--and after emphasizing the fact that examination of the report in question was denied in Holland, made these pertinent remarks:

Later cases exhibit a more conciliatory tendency where the document is one that may be received as an exhibit. Discovery will be ordered if the exhibit is the basis of the charge, as, e.g., where the indictment is for sending a threatening letter. Rex v. Harrie, 6 Car. & P. 105. Cf. People v. Bellows, 1 How.Prac. (N.S.) 149. There is some authority for the view that it will be ordered in other cases where the thing to be inspected is admissible in evidence and failure of justice may result from its suppression. Thus, in Regina v. Spry and Dore, 3 Cox, C.C. 221, an inspection of the contents of the stomach was permitted in a prosecution for homicide. In People v Gerold, 256 Ill. 448, 107 N.E. 165, Ann.Cas.1916A, 636, a county treasurer charged with defalcation was held to have the right to inspect official books and documents. In Commonwealth v. Jordan, 207 Mass. 259, 93 N.E. 809, a prosecution for murder, there was recognition of the power to permit an inspection of portions of the body taken at the time of the autopsy by the medical examiner and also weapons and other exhibits in the possession of the public prosecutor, though the court refused the order in the exercise of discretion. Other cases point the same way with more or less distinctness. See, e.g., Newton v. State, 21 Fla. 53; Daly v. Dimock, 55 Conn. 579, 12 A. 405; State v. Howland, 100 Kan. 181, 163 P. 1071. The power...