Pope v. State, 4582

• Decision Date: 19 December 1949
• Docket Number: No. 4582,4582
• Citation: 216 Ark. 314,225 S.W.2d 8
• Parties: POPE v. STATE.
• Court: Arkansas Supreme Court

Page 8

225 S.W.2d 8

216 Ark. 314

POPE v. STATE.

No. 4582.

Supreme Court of Arkansas.

Dec. 19, 1949.

Marshall Purvis, Hot Springs, Walter M. Purvis, Little Rock, for appellant.

Ike Murry, Atty. Gen., Arnold Adams, Asst. Atty. Gen., for appellee.

HOLT, Justice.

On information charging the crime of burglary, a jury found appellant, Pope, guilty and assessed his punishment at a term of five years in the State Penitentiary. From the judgment is this appeal.

Appellant argues ten grounds for reversal.

(1) Appellant says that he 'admits that an offense was sufficiently charged under Arkansas Statutes, 1947, Section 41-1001, but states that appellant was not tried under this section,' but was tried under Section 41-1004. We cannot agree. Section 41-1001 provides: 'Burglary is the unlawful entering a house, tenement, railway car, automobile, airplane, or other building, boat, vessel, or water craft with the intent to commit a felony or larceny.'

The information (omitting formal parts) accused 'the defendant, Harry M. Pope, of the crime of burglary committed as follows, to-wit: The said defendant on the 18th day of December, 1948, in Garland County, Arkansas, did unlawfully, willfully and feloniously break and enter a certain building known as Crawford's Pharmacy, the same being situated at 1008 Park Avenue, Hot Springs, Garland County, Arkansas, with the intent to commit a felony therein, against the peace and dignity of the State of Arkansas.'

The court instructed the jury in Instruction No. 2: 'You are instructed that burglary is the unlawful entering of a house, tenement, railway car, automobile, airplane, or other building, boat, vessel or water craft with intent to commit a felony or larceny,' and in No. 7:

'You are instructed that if you find from the evidence beyond a reasonable doubt that the defendant in Garland County, Arkansas, and within three years before the filing of the information in this case, that the defendant did unlawfully enter or aid or abet in unlawfully entering the building occupied by the Crawford Drug Store, with the intent to commit any felony that it will be your duty to fix his punishment at imprisonment in the penitentiary for not less than two nor more than seven years.'

Obviously, we think the court based its instructions on Section 41-1001 and the issues were tried under this section and not under Section 41-1004. Under Section 41-1001 it makes no difference whether the burglary charged was committed in the day time or at night. Since appellant concedes that the information was based on Section 41-1001, we proceed to examine his second argument that the evidence was not sufficient to support the verdict, and that it rested on 'speculation and conjecture.'

(2). The evidence was to the following effect: Having information of a disturbance at Crawford's Drug Store in Hot Springs, at about one o'clock a. m. of December 17, 1948, a number of police officers proceeded to that place and en route they noticed a late model maroon Hudson automobile leaving the scene. The car bore a Texas license tag, KD-5453 (which Officer Rowe noted on an envelope) and apparently was being driven in low gear, without lights. As they approached the drug store, three of the officers proceeded to the rear and placed a spotlight in a position to light up the alley way. Another officer proceeded to the front and as he approached the door of the store, he observed two men leaving the building from the rear into the alley. Shots were exchanged, resulting in the death of one of the men named Short, and the capture of his confederate, Byrant, and the serious wounding of Officer Ermey. The rear door of the drug store had been pried open, the drawers of the prescription counter had been pulled out and ransacked.

The following day, appellant, Pope, was arrested at the Cornonado Courts near Hot Springs, and in a garage adjacent to his cabin, the maroon Hudson automobile, above referred to, and observed at the scene of the crime the night before, was found. Papers on Pope's person indicated that the car belonged to him. A 'sport' shirt upon which was stenciled the name of Bryant was found in Pope's possession, and a search of the automobile revealed a purse containing data identifying it as belonging to Bryant.

Bryant, offered as a witness by the State, had prior to the trial made a written and oral statement detailing appellant's connection with the burglary of the drug store, from the time appellant had 'cased' the premises until the criminals were apprehended. On the stand, Bryant denied the truth of his previous statements or admissions. The complete written statement, at appellant's request, was read to the jury. The weight to be given to Bryant's testimony and its credibility, in the circumstances, were matters for the jury's consideration.

While it is true Bryant was an accomplice, the court, however, told the jury, by proper instructions, to which appellant interposed no objection, that appellant could not be convicted on the uncorroborated testimony of any accomplice. Instruction No. 3, which the court gave, contained this language: 'You are instructed that the defendant in this case cannot be convicted on the uncorroborated testimony of any accomplice and that the amount of corroborating evidence which should be required is a question solely for the jury, and it is sufficient, if there is such evidence, to warrant you in convicting the defendant, provided it, taken with all the other evidence in the case convinces you of his guilt beyond a reasonable doubt.'

As pointed out, appellant made no objection to this instruction, and made no request for any instruction on the question of Bryant's being an accomplice.

Without attempting to detail all of the testimony, that above set out, when viewed in the light most favorable to the State, as we must, was ample to support the jury's verdict of guilty.

(3). Appellant says that error was committed in the direct examination of Officer Rowe. It appears that on the night in question this officer observed the license number of appellant's car and wrote it down on the back of an envelope, and using this as a memorandum to refresh his memory, testified that the car was 'a maroon Hudson, has a license KD-5453 Texas tag.' The envelope was not introduced in evidence. This particular car was shown by the evidence to have been connected with the burglary. The court, therefore, committed no error.

(4). Appellant next complains that the direct testimony of Chief of Police, Watkins, which was to the effect that, in searching appellant's car, a concealed, unmarked bottle, containing forty or fifty quarter grain morphine tablets, was discovered, was incompetent and prejudicial, for the reason that it was not shown where the narcotics came from, and it had not been shown that they came from the Crawford Drug Store. This evidence that appellant had this morphine in his possession when arrested was permissible as bearing upon motive and intent. The evidence shows that appellant possessed the morphine in question illegally under the provisions of our 'Uniform Narcotic Drug Act,' Ark.Stats.1947--sections 82-1001 to 82-1023, and was subject to criminal prosecution.

Here, the evidence shows that the building in which the burglary was committed was a drug store, and the drawers of the prescription case had been ransacked. This evidence was proper, as indicated, as bearing upon appellant's intent to commit a felony or larceny under section 41-1001.

This court in Stone v. State, 162 Ark. 154, 258 S.W. 116, 118, used the following language, applicable here: 'It is true that the general rule is that evidence of a distinct offense cannot be admitted in support of another offense; but there are several exceptions to the general rule. One of the exceptions is that when it is necessary to fix the intent of the accused, or to prove the motive for the offense charged against him, such testimony is admissible. It is no objection to...