Murrah v. State, 5723

• Decision Date: 13 November 1972
• Docket Number: No. 5723,5723
• Citation: 486 S.W.2d 897,253 Ark. 432
• Parties: Joe Grady MURRAH, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 897

486 S.W.2d 897

253 Ark. 432

Joe Grady MURRAH, Appellant, v. STATE of Arkansas, Appellee.

No. 5723.

Supreme Court of Arkansas.

Nov. 13, 1972.

Rehearing Denied Dec. 18, 1972.

James E. Davis, Texarkana, for appellant.

Ray Thornton, Atty. Gen., by Robert H. Crank, Asst. Atty. Gen., Little Rock, for appellee.

BYRD, Justice.

Appellant Joe Grady Murrah appeals his convictions for burglary and grand larceny.

The facts stated in the light most favorable to the verdict show that on May 31, 1971, the officers of Texarkana, Texas and Texarkana, Arkansas, had a tip that a series of burglaries would be committed at electrical supply houses. A stake-out was placed at the R.E.A. building located at the intersection of Highway No. 82 and Oats Street in Texarkana, Arkansas. At 11:00 p.m. appellant drove by in a pick-up truck at a slow rate of speed and made a circle on the R.E.A. parking lot. Curtis Wayne Swanger jumped out of the passenger side of the truck while it was rolling at a slow rate of speed. The truck then made its exit back onto Highway #82. The officers then watched Swanger break into the R.E.A. building and remove and stack a quantity of copper wire and three chain saws behind a shrub. At exactly 12:00 midnight, appellant returned and parked by the merchandise Swanger had piled up by the shrub. After a portion of the merchandise had been loaded into the truck, Swanger started back into the building and at that time officer Sewell stepped out into the open and yelled, 'Both of you halt, this is the police.' Swanger started running and appellant attempted to drive off at a high rate of speed. The officers fired several shots from 30:06 rifles, shot guns and a machine gun. Appellant did not stop until both front tires on his truck were flat from the shots fired. When apprehended, appellant had a .38 caliber snub-nosed pistol between his feet on the floorboard of the truck as well as a loaded refle behind the seat of the truck.

Appellant denied that the was at the building at 11:00 p.m. and furnished proof to the effect that he could not have been there at that time. His defense to the 12:00 midnight appearance was that everybody knew he was going to run for Sheriff of Bowie County, Texas, and that the Texarkana, Texas officers had conspired with Swanger to entrap him to prevent him from running for sheriff. Appellant contended that Swanger had lured him to the R.E.A. building by informing him that he could repossess at that place and time an automobile he had sold on time and on which the purchaser was in default on the payments.

POINT I. Appellant was not entitled to an instructed verdict of acquittal. The proof with reference to the chain saws was that three chain saws were removed from the possession of the R.E.A. Two of the saws belonged to R.E.A. and were introduced as exhibits. The third one had been released to its rightful owner. In Powell v. State, 251 Ark. 46, 471 S.W.2d 333 (1971), we held that in a case of larceny, ownership of property may be laid either in the owner or the person who had possession at the time of theft.

In making the argument that the State failed to prove the requisite intent, appellant apparently overlooks the fact that by Ark.Stat.Ann. § 41--118 (Repl.1964), an accessory before the fact is treated as a principal. When viewed in this light there is more than ample evidence.

POINT II. Appellant not having objected to the introduction of the photograph of the merchandise in the back of his truck is not in a position to complain.

The money bag of which he complains was merely identified as having been in the truck at the time of his arrest and was not introduced into evidence. Furthermore, appellant's own testimony with reference to the money bag removed any prejudice in connection therewith.

Appellant in contending that the trial court erred in admitting the pistol and the rifle into evidence relies upon our cases such as Alford v. State, 223 Ark. 330, 266 S.W. 804 (1954), and Searcy v. State, 245 Ark. 159, 431 S.W.2d 477 (1968). Of course those cases have to do with the introduction of evidence to show other crimes committed at another place and time. The items here were not introduced to show the commission of another offense but only to show what the officers found when they stopped appellant's fleeing truck. Consequently we find no merit in the contention.

POINT III. The trial court held a hearing on appellant's motion for new trial. There appellant offered the testimony of two witnesses who testified that Swanger while in jail told them that he had set appellant up with the Texarkana, Texas police to get a better deal for himself on some pending charges. The trial court, while sustaining an objection to the testimony and two proffered affidavits as hearsay, made every effort to get the witnesses to testify as to the actual statements made by Swanger rather than as to their conclusions as to the essence of the conversation. On the record made, we cannot say that the trial court erred in overruling the motion for new trial.

POINT IV. Appellant in support of his contention that he was tried before a jury selected in a constitutionally impermissible...