Payne v. State, 4846
| Decision Date | 05 November 1956 |
| Docket Number | No. 4846,4846 |
| Citation | 295 S.W.2d 312,226 Ark. 910 |
| Parties | Frank Andrew PAYNE, Appellant, v. STATE of Arkansas, Appellee. |
| Court | Arkansas Supreme Court |
Wiley A. Branton, Pine Bluff, for appellant.
Tom Gentry, Atty. Gen., Thorp Thomas, Asst. Atty. Gen., for appellee.
Appellant, Frank Andrew Payne, was charged by information with the murder of J. M. Robertson on October 4, 1955. A jury found him guilty of murder in the first degree and fixed his punishment at death by electrocution. For a reversal, appellant sets forth a number of objections and alleged errors in his Motion for New Trial. We have given careful consideration to each one of the above assignments, some of which will be disposed summarily, but we will discuss hereafter in some detail only those assignments of error which appear to have merit and those upon which appellant places the greatest emphasis.
1. The trial court overruled appellant's motion to quash the information, and two grounds are here relied on to show error.
(a) It is contended by appellant that Amendment No. 21 to the Constitution of this State, substituting an information by the prosecuting attorney for an indictment by the grand jury, violates the 5th and 14th Amendments to our Federal Constitution. This question has already been passed on contrary to appellant's contention [as admitted by appellant] in the case of Penton v. State, 194 Ark. 503, 109 S.W.2d 131 and affirmed in Smith & Parker v. State, 194 Ark. 1041, 110 S.W.2d 24, 25. We now assert, as was stated in the latter mentioned case in referring to the former mentioned case, that:
(b) Notwithstanding the above, appellant makes the further contention that the information in this case shoudl have been quashed because it is undisputed that it was issued before there had been a preliminary hearing. In support of this contention appellant apparently relies on Ark.Stats. § 43-806 which provides that when a defendant has been held to answer at a preliminary examination the prosecuting attorney may file an information. The section referred to is a part of Act 160 of the Acts of 1937 which was passed to implement Amendment No. 21 referred to above and was not meant to be a limitation on the powers granted by the amendment. This court definitely settled the question against appellant's contention in the Penton case, supra, 194 Ark. at page 513, 109 S.W.2d at page 136, where it was stated:
Our Amendment No. 21 [] says nothing about a preliminary hearing.
2. It is ably and earnestly insisted that the trial court erred in admitting in evidence a confession made and signed by appellant. This argument is based on the contention that appellant was mistreated and that he was induced by fear and intimidation to make the confession. After careful consideration we are unable to agree with appellant.
Robertson was killed about 6:00 P.M. on Tuesday, October 4, 1955, and appellant was arrested the next morning and placed in the city jail at Pine Bluff. He was taken early the next morning, October 6th, to Little Rock for a lie detector test and was returned to Pine Bluff that afternoon and replaced in the city jail. The next day, October 7th, at about 1:00 P.M. he was taken to the county jail and his confession was made, signed and witnessed at about 2:00 P.M. Later that same afternoon he was taken, presumptively for security purposes, to the county jail at Dumas where he spent the night but was returned to Pine Bluff on the following morning. On examination appellant testified that he was not given anything to eat, that his clothes were taken away from him, that [in effect] he was threatened with the result of mob violence if he did not confess and that some of his relatives were arrested. He stated that while in the jail at Dumas he was reminded of the fate of a Negro boy in Mississippi. We here note that appellant was a Negro, 19 years of age.
A great deal of testimony was taken relative to the alleged threats and mistreatment, and the circumstances attending the confession. A careful consideration of this testimony convinces us that the confession was properly allowed in evidence. Several witnesses were present when the confession was made and they all testified that, at no time, where there any threats or any mistreatment of the appellant. In the confession itself appellant states that he was not in any way mistreated. The State Police Sergeant who took appellant to Little Rock admits that they took his shoes and socks off before they left Pine Bluff and that they removed his pants and shirt after he arrived at Little Rock, all for the purpose of laboratory examinations. The sheriff admits that shortly before the confession was actually given he merely informed appellant that there were several people outside the jail. His explanation was that appellant had already indicated he wanted to make a confession and the sheriff thought it would be better to have the confession made in private, having in mind the safety of appellant. Any statement that might have been made to appellant while in jail at Dumas could not have influenced his confession which had already been made the day before. Before the trial court decided to admit appellant's confession in evidence he heard voluminous testimony, in chambers, from all of the officers and people who had been in contact with appellant during his period of confinement before the confession was made. All of them deny that appellant was mistreated in any way or that he was in any way threatened. This procedure was approved in McClellan v. State, 203 Ark. 386, 156 S.W.2d 800, and we are convinced that the confession was properly introduced in evidence. It is true that some of appellant's relatives were arrested soon after he was taken into custody but, as explained, this was done in an effort to prevent the money which appellant was supposed to have taken from the deceased from being disposed of.
3. While Sergeant Buck Halsell was on the stand the prosecuting attorney asked this question, The attorney for appellant objected to the question on the ground that 'it hasn't been established there was a murder yet.' The prosecuting attorney replied that 'I believe it was established in his opening statement.' The court then instructed the attorneys to go ahead and there were no further objections. We are not convinced that this incident materially prejudiced the rights of appellant or that it calls for a reversal. It is reasonable to suppose that the jury understood that the prosecuting attorney was merely asking the witness if he had been active in the investigation of the death of Robertson.
4. After the State had rested its case late in the afternoon the court recessed for 5 minutes in order to take up some motions presented by the defendant. After this was done the attorney for appellant made this statement:
'Mr. Branton: The defendant at this time notes that it is a quarter of five and the defendant requests that the Court recess until tomorrow morning to allow the defense attorney time to consult with his client and further prepare for the defense of the defendant in this case.
'The Court: I think we ought to finish this testimony this evening if we can--if we can't, well, all right; I think you are entitled to a few minutes, but not the rest of the day and tonight.
'Mr. Mullis: If the Court please, I object to that motion--I would like to get the testimony in for this reason, there are several witnesses here now who are being held and are holding up another Court.
'Mr. Branton: I would like a few minutes.
'The Court: I rule we are going to finish the testimony if we can.
'Mr. Branton: I object to the ruling of the Court as to the recess.'
Under this state of the record we see no error in the court's refusal to grant a recess until the following day. It will be noted that appellant's attorney gave no special reason for asking the court to adjourn other than to consult with his client and further prepare for his defense. It was not stated or shown in what way appellant would be prejudiced by the court's refusal to grant the recess. This court in the case of Edwards v. State, 171 Ark. 778, 286 S.W. 935, held that it was not error for the court to refuse a postponement of a trial for a few hours until some of defendant's witnesses should arrive, where the defendant had announced ready for trial without such witnesses being present.
5. After both sides had rested, but before the case was submitted to the jury, late in the afternoon the court permitted the jurors to separate and go to their several homes. It is objected by appellant that this was error although he admits that it is a matter of discretion with the court. Ark.Stats. § 43-2121 specifically provides: 'The jurors, before the case is submitted to them, may, in the discretion of the court, be permitted to...
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