Russell v. State

• Decision Date: 24 January 1966
• Docket Number: No. 5161,5161
• Citation: Russell v. State, 240 Ark. 97, 398 S.W.2d 213 (Ark. 1966)
• Parties: Erskine Wilbert RUSSELL et al., Appellants, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 213

398 S.W.2d 213

240 Ark. 97

Erskine Wilbert RUSSELL et al., Appellants, v. STATE of Arkansas, Appellee.

No. 5161.

Supreme Court of Arkansas.

Jan. 24, 1966.

Harold Sharpe, Forrest City, for appellants.

Bruce Bennett, Atty. Gen., by Fletcher Jackson, Asst. Atty. Gen., Little Rock, for appellee.

GEORGE ROSE SMITH, Justice.

The three appellants were convicted of burglary and grand larceny and were sentenced to ten years imprisonment upon each count. For reversal they question the admissibility of certain evidence and the correctness of the trial court's instructions.

Gene Harris's home was broken into and burglarized at some time during the day on April 8, 1965, while Harris and his wife were away at work. When Harris returned shortly before seven o'clock he discovered the burglary and reported it to the county sheriff and the Forrest City police. By then, as we shall see, the officers were already conducting a vigorous search for the three men who were ultimately convicted in the court below.

Earlier that same evening, between 5:30 and 6:00 o'clock, the three appellants bought vodka at a liquor store near Forrest City. The clerk in the liquor store became suspicious when the men paid for the vodka with Kennedy half dollars (coins struck in memory of President Kennedy), exchanged ten more Kennedy half dollars for a five dollar bill, and offered to exchange even more of the half dollars for paper money. The clerk obtained the license number of the appellants' car and reported it to the Forrest City police.

Officer Bassett, who received the report, set out in search of the three men and soon spotted their car on the highway near Forrest City. The officer gave chase, but the fugitives sped away, turned down a side road, abandoned their car, and fled into the woods. City and county police set up road blocks in an effort to apprehend the criminals. During the same evening, while the manhunt continued, the officers learned of the burglary at the Harris home and of the theft of a quantity of Kennedy half dollars in a nearby county. Finally, at about 1:30 the next afternoon, the officers tracked down the fugitives and arrested them.

It is first contended that the trial court erred in permitting the State to prove, in its case in chief, that the defendants were habitual offenders with prior criminal records. The Attorney General now concedes, as he must, that the court's procedure was reversible error in view of an opinion handed down after the present case was tried: Miller v. State, 239 Ark. 836, 394 S.W.2d 601 (1965). Inasmuch as there must be a new trial we consider those asserted errors that are likely to arise again.

The State was allowed to prove, over the defendants' objections, that a shotgun and other articles stolen from the Harris home were found in the car abandoned by the fugitives. Counsel for the appellants is in error in contending that the record discloses an unlawful search of the vehicle. What is prohibited is an unreasonable search and seizure. Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964). It was certainly reasonable for the officers to search the car for firearms and even to remove the car, to prevent the felons from coming back and using it in their flight. Moreover, Sheriff Montgomery testified that the stolen property was piled on the rear seat of the vehicle so that he could recognize it from the outside. In this situation, where the articles are identified without a trespass on the part of the...