Pendleton v. State
| Decision Date | 29 September 1947 |
| Docket Number | 4455 |
| Citation | 204 S.W.2d 559,211 Ark. 1054 |
| Parties | Pendleton v. State |
| Court | Arkansas Supreme Court |
Rehearing Denied October 27, 1947.
Appeal from Franklin Circuit Court, Ozark District; J. O. Kincannon Judge.
Affirmed.
Jeta Taylor and Batchelor & Batchelor, for appellant.
Guy E. Williams, Attorney General, and Oscar E Ellis, Assistant Attorney General, for appellee.
Ed. F. McFaddin, Justice.
Leon Pendleton was convicted of burglary, and sentenced to two years in the penitentiary; and he has appealed. The motion for new trial contains 16 assignments, which we group and discuss in suitable topic headings.
I. Sufficiency of the Evidence. The evidence, viewed in the light most favorable to the State, tends to show the following facts: John Harbottle owned a liquor store in Altus, Franklin county. The store was in a small brick building which faced south, with one door on each of the south, east and west sides. There was a partition in the building; the liquor store was in the south room, and the north room was a bedroom occupied by E. W. Sublett, who operated the liquor store for Harbottle, and who was sleeping in the north room on the night in question. Some time between 2:00 a. m. and 3:00 a. m. on February 3, 1947, two men attempted to enter the liquor store. During the time the burglars were attempting to force entrance, Sublett was awakened by their noises; he loaded his gun with buckshot, and awaited their possible entrance. Sublett had opportunity to see the burglars, because of the moonlight, their flashlight, the street lights, and also the lights from two passing cars. The burglars tried the east door and then the south door before they succeeded in breaking open the south door. One of the burglars came into the store, and the other, remaining on the outside, said to his companion: "If you find anybody in there, knock them in the head and kill them." The burglar on the inside discovered Sublett and started toward him, and Sublett shot him -- a man named Harris. The other burglar ran away, and is claimed to be the defendant, Leon Pendleton.
When Harris was shot, he fell to the floor, where he remained until a physician had him removed by ambulance, a few hours later, to Fort Smith. Harris died in a hospital in that city. Immediately after shooting Harris with the shotgun, Sublett, by firing a pistol, awakened Harbottle, who lived near by, and who summoned the officers. A small crowd soon gathered. While Harris was on the floor, he was heard to exclaim, "Come and get me, Leon"; and, again, "Leon, Leon, come and get me." These exclamations were held incompetent, and will be discussed in topic II.
Leon Pendleton was arrested the same day in Van Buren, where he lived. He was charged with burglary of the Harbottle store, and his plea of not guilty included the defense of an alibi. Sublett positively identified Pendleton as the companion of Harris in the burglary. Other witnesses supported Sublett by testimony tending (1) to identify Pendleton; (2) to place him near the liquor store the night in question; and (3) to show that he left the scene in haste. Without detailing all the evidence, we have sketched enough to show that a case was made for the jury.
II. Harris' Exclamations. In his opening statement the prosecuting attorney told the jury that Harris, while lying on the floor after being shot, called "Leon, Leon, come and get me." Pendleton's attorneys objected to the statement, and moved the court to declare a mistrial. The record shows this to have occurred:
It will be observed that the trial court admonished the jury to give no consideration to the exclamations made by Harris. But the appellant contends that the words of the prosecuting attorney could not be erased from the minds of the jurors; and claims that a mistrial should have been ordered under the authority of Smith v. State, 205 Ark. 1075, 172 S.W.2d 248.
The situation in the case at bar is not identical to that in the Smith case. The distinction is this: In the Smith case the prosecuting attorney, in his opening statement and over the defendant's objections and exceptions, was permitted by the court to detail an alleged confession which was later held to be inadmissible. We said the error in allowing the confession to be detailed to the jury was not cured by the admonition of the court given the next day. In the case at bar the prosecuting attorney, in his opening statement, told the jury of the exclamations and remarks that Harris was alleged to have made; but just as soon as the defendant objected to the statement of the prosecuting attorney, the court told the jury to disregard the statement. Thereafter when any witness attempted to tell of Harris' exclamations or remarks, the court promptly stopped such witness, and directed the jury to disregard any such testimony. We therefore hold that in the case at bar the trial court did not abuse its discretion in refusing the defendant's motion for a mistrial.
A majority of the Court thinks the dying man's calls were a part of the res gestae and therefore testimony relating to them was admissible. What Harris exclaimed at the time of the shooting might have been such a spontaneous exclamation as to have been a part of the res gestae (see Walker v. State, 133 Ark. 517, 212 S.W. 319, and Moss v. State, 208 Ark. 137, 185 S.W.2d 92); but we are not required to decide that issue, since the trial court excluded all exclamations made by Harris after Sublett shot him.
III. The Jury's Recommendation of a Suspended Sentence. After the jury had deliberated for some time the jurors returned into the court, and the following transpired:
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Gardner v. State
...court to answer proper inquiries by the jury relating to the law governing recommendations of a suspended sentence. Pendleton v. State, 211 Ark. 1054, 204 S.W.2d 559. We have approved proper instructions on the role of the court and jury in matters pertaining to suspension of sentences wher......
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Snell v. State
...it was not inaccurate, was approved by our cases. See Glover v. State, 211 Ark. 1002, 204 S.W.2d 373 (1947); Pendleton v. State, 211 Ark. 1054, 204 S.W.2d 559 (1947) and see California v. Ramos, 463 U.S. 992, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983). This exact situation occurred in Smith v. ......
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Bell v. State, 4763
... ... In some cases the Trial Judge has told the jury the law as to paroles; and that course of procedure has been approved. See Glover v. State, 211 Ark. 1002, 204 S.W.2d[223 Ark. 311] 373, 374; and Pendleton ... v. State, 211 Ark. 1054, 204 S.W.2d 559. 4 But in the case at bar, the answers made by the Trial Judge to the juror's questions--admittedly made on the 'spur of the moment'--were not declarations of law that a Judge could make from the bench: rather the answers were testimony as to the ... ...
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Davis v. State, CA
...court to answer proper inquiries by the jury relating to the law governing recommendations of a suspended sentence. Pendleton v. State, 211 Ark. 1054, 204 S.W.2d 559 (1947). We have approved proper instructions on the role of the court and jury in matters pertaining to suspension of sentenc......