Petty v. State, 5374

• Decision Date: 09 December 1968
• Docket Number: No. 5374,5374
• Parties: Charles William PETTY, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 602

434 S.W.2d 602

245 Ark. 808

Charles William PETTY, Appellant, v. STATE of Arkansas, Appellee.

No. 5374.

Supreme Court of Arkansas.

Dec. 9, 1968.

Tiner & Henry, Harrisburg, for appellant.

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

JONES, Justice.

The appellant, Charles Petty, was tried before a jury and convicted of the crimes of burglary and grand larceny in the Poinsett County Circuit Court. He was sentenced to the state penitentiary for terms of fifteen years on each charge, the terms to run consecutively with minimum time to be served fixed by the court at ten years. Upon appeal to this court the appellant relies on the following three points for reversal:

'That the court erred in refusing to declare a mistrial when the prosecuting attorney in his opening statement remarked that the appellant had not been brought to trial at an earlier date because he had been in custody in another state.

That the court erred in giving instruction thirteen (13) since the instruction as given violates article 7 section 23 of the Arkansas constitution.

That the court erred in fixing the minimum time to be served by appellant in the department of corrections at ten years.'

As to appellant's first point, the remarks to which he objects are contained in an exchange between the attorneys and the court as follows:

'DEFENDANT'S ATTORNEY: At this time the Prosecuting Attorney in his opening statement just told the jury the reason this case didn't come on for trial is that the defendant was in custody in another State. At this time we move the Court to declare a mistrial in this case for the reason that he has mentioned the fact that the defendant was in custody in another State implying that he had committed another offense and we are asking the Court to declare a mistrial at this time.

PROSECUTING ATTORNEY: If the Court please, the State in the opening statement in making that remark was merely repeating or reiterating the statement that was made by defense counsel to the jury on voir dire examination as an explanation as to why the delay or the difference between the 1964 offense and now. It could not be prejudicial because the defense had already made this information available to the jury. Certainly I would not have done so if it had not been pointed out to the jury on voir dire.

THE COURT: In view of the fact that Counsel for the defense in qualifying the jury brought out the fact that he had been previously convicted and you qualified the jury on that point, you opened the door for the Prosecuting Attorney to also make reference thereto, your motion will be denied and your exceptions noted.'

We find no error in the trial court's denial of appellant's motion. This point was decided contrary to appellant's contention in Bethel and Wallace v. State, 180 Ark. 290, 21 S.W.2d 176, where this court said:

'It is well settled that trial courts have a wide discretion in the supervision of trials before them, including matters pertaining to opening statements, and this court will not revers unless a manifest abuse of discretion is shown. Nelson v. State, 139 Ark. 15, 212 S.W. 93; Stanley v. State, 174 Ark. 743, 297 S.W. 826; Adams v. State, 176 Ark. 916, 5 S.W.2d 946; Bowlin v. State, 175 Ark. 1115, 1 S.W.2d 553.'

We find no abuse of discretion in this case.

At to his second point, appellant objects to the trial court's action in submitting to the jury the following instruction:

'The possession of property recently stolen without reasonable explanation of the possession is evidence which goes to you for your consideration under all the circumstances of the case to be weighed as tending to show the guilt of one in whose hands such property is found. But such evidence alone does not impose upon you the duty of convicting even though it be not rebutted.'

Appellant specifically objects to this instruction on the basis that the instruction singles out and calls the jury's attention to particular evidence; that it is an instruction on the weight of the evidence, and therefore an invasion of the...