Scates v. State, 5326
| Decision Date | 11 March 1968 |
| Docket Number | No. 5326,5326 |
| Citation | 424 S.W.2d 876,244 Ark. 333 |
| Parties | Dale E. SCATES and Terrell Blaylock, Appellants, v. STATE of Arkansas, Appellee. |
| Court | Arkansas Supreme Court |
Sol J. Russell, and Harry C. Robinson, N. Little Rock, for appellants.
Joe Purcell, Atty. Gen., Don Langston, Asst. Atty. Gen., Little Rock, for appellee.
On December 9, 1966, the appellants, Dale Scates and Terrell Blaylock, were charged with the crime of burglary in an information filed by the prosecuting attorney of Pulaski County. They were tried and convicted on July 19, 1967, and have appealed.
The facts briefly are these: On June 4, 1966, at approximately 2:15 a.m., the North Little Rock police were advised that a burglary was in progress at the Southern Grill, 18 Railroad Avenue. Upon arrival at the cafe, the police found Terrell Blaylock, one of the appellants, inside the restroom of the cafe, behind the door, with a tire tool on the floor behind him. The owner of the cafe was called and she unlocked the back door. The officers searched the cafe and the appellant, Dale Scates, was found hiding under a raincoat in the kitchen inside the cafe. A window had been broken out about eight feet above ground level over the front door of the cafe and was of sufficient size to allow a man to enter through it. All doors were locked and the broken window was the only means of entrance found. An automobile belonging to appellant Blaylock's mother was found parked behind the building. The cafe owner testified that nothing inside the cafe was missing or broken into, but also testified that appellants had no permission to be inside the building.
Appellants were arraigned on January 4, 1967, and were informed of the nature of the charge against them. They entered their pleas of not guilty, waived a jury trial, and the cases were set for a court trial on July 19, 1967. At the trial on July 19, 1967, the court found the appellants guilty of burglary and they were sentenced to two years each in the state penitentiary. On appeal to this court appellants urge the following three points for reversal:
'There is no proof or semblance of proof in the record that the defendants entered the place at 18 and Railroad, North Little Rock, with the intention to commit a crime.
'The Court should have granted a continuance.
'The Court abused its discretion in refusing to give the defendants a jury trial.'
As to the first point, we find no merit in appellants' contention that there is no proof of the requisite intent to commit a crime. Ark.Stat.Ann. § 41--1001 (Repl.1964) defines burglary as follows:
'Burglary is the unlawful breaking or entering a house, tenement, railroad car, automobile, airplane, or any other building, although not specially named herein, boat, vessel or water craft, by day or night, with the intent to commit any felony or larceny.'
And Ark.Stat.Ann. § 41--1002 (Repl.1964) provides as follows:
'The manner of breaking or entering is not material, further than it may show the intent of the offender.'
This court in the case of Clay v. State, 236 Ark. 398, 366 S.W.2d 299, said:
'We have held that the offense of burglary is complete even though the intention to commit a felony is not consummated. Thomas v. State, 107 Ark. 469, 155 S.W. 1165, and cases cited therein. * * * As stated in Duren v. State, 156 Ark. 252, 245 S.W. 823, 'It is not essential that the state prove by direct evidence an intention to commit a felony, for this fact may be, and generally is, established by proof of circumstances which indicate the intention of the burglar * * *.''
In the case at bar, we are of the opinion that a larcenous intent can fairly be inferred where the appellants were discovered, one with a tire tool and the other hiding under a raincoat, at 2:15 a.m. inside a locked cafe containing amusement and vending machines, and when they had no permission, or lawful right or reason, to be inside the cafe. We are of the opinion that the correct law and proper conclusion was stated in the words of the trial court, as follows:
Appellants' second point is based on their contention that a continuance should have been granted because one of the attorneys for appellants was employed only two or three days before the trial and that the prosecuting attorney had not assented to a waiver of trial by jury under Ark.Stat.Ann. § 43--2108 (Repl.1964), which provides:
With this contention we cannot agree. The docket shows that the appellants were represented by counsel at their arraignment on January 4, 1967, some six months prior to the trial, and that the appellants waived a jury trial with their counsel pre...
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...cert. den. 380 U.S. 942, 85 S.Ct. 1021, 13 L.Ed.2d 962 [1965]; Sparks v. United States, 358 A.2d 307 [D.C.App., 1976]; Scates v. State, 244 Ark. 333, 424 S.W.2d 876 [1968]; People v. Kipnis, 5 Cal.App.3d 980, 85 Cal.Rptr. 547 [1970]; Garcia v. People, 200 Colo. 413, 615 P.2d 698 [1980]; Sta......
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