Poe v. State

Decision Date27 September 1971
Docket NumberNo. 5608,5608
Citation251 Ark. 35,470 S.W.2d 818
PartiesCharles POE, Appellant, v. STATE of Arkansas, Appellee.
CourtArkansas Supreme Court

Louis W. Rosteck, Little Rock, for appellant.

Ray Thornton, Atty. Gen., Garner Taylor, Jr., Asst. Atty. Gen., Little Rock, for appellee.

FOGLEMAN, Justice.

Appellant first contends that his conviction and sentence of forgery and uttering under our habitual criminal statute (Ark.Stat.Ann. §§ 43--2328--2330 (Repl.1964) (Supp.1969)) should be reversed because that statute violates Article 2, Sections 3 and 8, of the State Constitution. We have previously sustained the statute against attacks on its constitutionality. Ferguson v. State (1970), 249 Ark. 3, 458 S.W.2d 383. Appellant argues, however, that the equal protection and due process clauses of the above sections have been breached in his case. He bottoms this argument upon the circuit judge's statement during trial that the judge had no experience with the statute. He contends that utilization of the statute is discretionary with the prosecuting attorney, and thus permits discriminatory application to different habitual offenders.

We do not agree with this argument. The statute is not couched in language indicative of an intention that its invocation by prosecuting officers be discretionary any more than the statutes fixing punishment for the crimes themselves. The language in all provide that one convicted 'shall' be punished by a term of imprisonment within a prescribed range. See Ark.Stat.Ann. §§ 41--1803, 1805, 1810, 1823 (Repl.1964). Certainly the act as written is invulnerable to attacks for denial of equal protection or for violation of due process. See Graham v. West Virginia, 224 U.S. 616, 32 S.Ct. 583, 56 L.Ed. 917 (1912); McDonald v. Massachusetts, 180 U.S. 311, 21 S.Ct. 389, 45 L.Ed. 542 (1901); Moore v. Missouri, 159 U.S. 673, 16 S.Ct. 179, 40 L.Ed. 301 (1895); State v. Hicks, 213 Or. 619, 325 P.2d 794 (1958); State v. Bailleaux, 218 Or. 356, 343 P.2d 1108 (1959); Skinner v. Prather, 136 Kan. 879, 18 P.2d 154 (1933); State v. Howell, 240 Or. 558, 402 P.2d 89 (1965), cert. denied, 383 U.S. 922, 86 S.Ct. 898, 15 L.Ed.2d 676 (1966).

We know that the statute has been invoked in this state in many instances. See Rowe v. State, 224 Ark. 671, 275 S.W.2d 887; Jackson v. State, 226 Ark. 731, 293 S.W.2d 699; McIlwain v. State, 226 Ark. 818, 294 S.W.2d 350; Bowling v. State, 229 Ark. 876, 318 S.W.2d 808; Clubb v. State, 230 Ark. 688, 326 S.W.2d 816; Higgins v. State, 235 Ark. 153, 357 S.W.2d 499; Osborne v. State, 237 Ark. 170, 371 S.W.2d 518; Miller v. State, 239 Ark. 836, 394 S.W.2d 601; Cummings v. State, 239 Ark. 1027, 396 S.W.2d 298; Walker v. State, 240 Ark. 441, 399 S.W.2d 672; Thom v. State, 248 Ark. 180, 450 S.W.2d 550; Flurry v. State, 248 Ark. 722, 453 S.W.2d 402; Dolphus v. State, 248 Ark. 799, 454 S.W.2d 88.

The record does not disclose that the prosecuting attorney, in seeking application of the act in this case, acted arbitrarily, capriciously or wilfully discriminated against appellant or a class of which he was a member. We can only speculate why the circuit judge had no previous experience with the act. No support for appellant's position is disclosed other than the bare statement by the judge. The most that can be said is that there may have been some laxity in the enforcement of the act. In other jurisdictions laxity in enforcement, even though without apparent excuse, has been held insufficient to render application of such a statute to an individual defendant a denial of equal protection or due process of law, in the absence of any showing of arbitrary or capricious action or of a wilful intention to discriminate. State v. Hicks, 213 Or. 619, 325 P.2d 794 (1958); State v. Bailleaux, 218 Or. 356, 343 P.2d 1108 (1959); State v. Howell, 240 Or. 558, 402 P.2d 89 (1965), cert. denied, 383 U.S. 922, 86 S.Ct. 898, 15 L.Ed.2d 676 (1966); Skinner v. Prather, 136 Kan. 879, 18 P.2d 154 (1933); Sanders v. Waters, 199 F.2d 317 (10th Cir. 1952); Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1961). See also, Ex parte Boman, 160 Tex.Cr.R. 148, 268 S.W.2d 186 (1954); People v. Johnson, 412 Ill. 109, 105 N.E.2d 766 (1952), cert. denied, 344 U.S. 858, 73 S.Ct. 98, 97 L.Ed. 666 (1952), 347 U.S. 955, 74 S.Ct. 681, 98 L.Ed. 1100 (1954), reh. denied, 347 U.S. 1022, 74 S.Ct. 873, 98 L.Ed. 1142 (1954); People v. Mock Don Yuen, 67 Cal.App. 597, 227 P. 948 (1924). It has been said that failure of a prosecutor to enforce the law as to some persons should not be converted into a defense for others charged with crime. State v. Hicks, supra. The United States Court of Appeals for the Fifth Circuit stated that it had never been held that one who is guilty of a crime cannot be punished merely because others equally guilty had not been prosecuted or convicted. Saunders v. Lowry, 58 F.2d 158 (5th Cir. 1932). The Supreme Court of the United States has held that even conscious selectivity in enforcement of such an act which is not based upon unjustifiable standards or arbitrary classification does not offend against constitutional equal protection and due process standards. Oyler v. Boles, supra.

We cannot sustain appellant's contentions on the record before us. We certainly are unwilling to say that the mere failure of prosecuting attorneys in one district of the state to previously invoke the act, whether because of lack of information of previous convictions in other cases or because of selectivity in enforcement, makes the present or subsequent application of the act a denial of equal protection or due process.

Appellant's remaining point for reversal is a contention that the evidence was insufficient to support the conviction. He says that the state failed to prove that he fraudulently obtained the possession of, or deprived another of, money or property or caused another to be injured in his estate or lawful right by forgery or uttering of a check. This argument is based upon testimony showing that long before the check was presented the person whose name was forged had closed his account...

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9 cases
  • Owens v. State
    • United States
    • Supreme Court of Arkansas
    • November 6, 2003
    ...The court concluded that no such showing had been made in this case. One of the cases relied on by the trial court is Poe v. State, 251 Ark. 35, 470 S.W.2d 818 (1971). There, the appellant asked this court to reverse his convictions because his rights to equal protection and due process wer......
  • State v. Lee
    • United States
    • United States State Supreme Court of Washington
    • December 30, 1976
    ...224 U.S. 616, 32 S.Ct. 583, 56 L.Ed. 917 (1912); Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962); Poe v. State, 251 Ark. 35, 470 S.W.2d 818 (1971) (collecting cases); 39 Am.Jur.2d Habitual Criminals and Subsequent Offenders § 5 (1968). Appellant next contends the statu......
  • Ellingburg v. State
    • United States
    • Supreme Court of Arkansas
    • April 9, 1973
    ...contention is without merit. Ridgeway v. State, 251 Ark. 157, 472 S.W.2d 108; Brown v. State, 252 Ark. 846, 481 S.W.2d 366; Poe v. State, 251 Ark. 35, 470 S.W.2d 818. See also, Rimes v. State, 251 Ark. 678, 474 S.W.2d Appellant makes several contentions regarding his pretrial psychiatric ex......
  • State v. Nixon, 1961--I
    • United States
    • Court of Appeals of Washington
    • December 28, 1973
    ...an habitual criminal nor the exercise of that power is a denial of due process or of the equal protection of the laws. Poe v. State, 251 Ark. 35, 470 S.W.2d 818 (1971); State v. West, Supra. The safeguards of the due process and equal protection clauses overlay one another, but their areas ......
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