Smith v. State, 5235

Citation241 Ark. 958,411 S.W.2d 510
Decision Date06 February 1967
Docket NumberNo. 5235,5235
PartiesLeveon SMITH, Appellant, v. STATE of Arkansas, Appellee.
CourtSupreme Court of Arkansas

W. B. Howard and Jack Segars, Jonesboro, for appellant.

Bruce Bennett, Atty. Gen., Richard B. Adkisson, Asst. Atty. Gen., Little Rock, for appellee.

JONES, Justice.

This appeal is from a judgment of the Craighead County Circuit Court revoking the suspension of a penitentiary sentence previously imposed on the appellant.

On January 27, 1964, the appellant, Leveon Smith, was properly tried and found guilty by a jury in the Craighead County Circuit Court on two separate charges of burglary and grand larceny. The trial court postponed the pronouncement of final sentence upon condition of appellant's good behavior in the future, and entered judgment, in the form of suspended sentences to the Arkansas penitentiary for a period of five years under authority of Ark.Stat.Ann. § 43--2324 (Repl.1964).

On the 11th day of April, 1966, the prosecuting attorney filed information against the appellant on two counts of burglary and grand larceny and on one count of petit larceny, and also filed a petition for revocation of the suspension of sentences in the previous cases, alleging that appellant had violated the conditions of the suspension of sentence in that he had not been of good behavior, but had committed several acts of burglary and grand larceny since the rendition of the original judgments.

Apparently in anticipation of evidence the State might attempt to offer at the trial of appellant on the three charges, as well as in support of its petition to revoke the suspension of sentences on the previous judgments, the appellant filed motions to quash and suppress a confession purportedly made by the appellant and meticulously set out and included in his motion, each and every item of testimony, was well as exhibits, he anticipated the State would offer as evidence at the trial on the informations, as well as at the hearing on its petitions for revocation.

When the appellant's case came on for jury trial on the three counts charged in the information, appellant's counsel insisted that appellant's motions be first disposed of. The jury was discharged and appellant's motions to suppress and the State's petition for revocation were taken up by the Court in Chambers under the following procedure as revealed by the record:

'MR. PEARSON: If the Court please, I am not sure what would be proper procedure in disposing of those motions. Mr. Howard suggested they be disposed of at this time before getting into the hearing on the revocation. It might require some duplication of evidence from witnesses. We might do that or wait until the evidence is offered or confession is offered and then take those up.

MR. HOWARD: If your honor please, while the motions are separate and nearly each one states a separate theory, taken together they challenge all the evidence by way of physical evidence we anticipate will be offered by the State in these petitions for revocation, and taken together they challenge the confession we anticipate the State will attempt to offer. To save time we think the two petitions should be consolidated and we should proceed on the motions, because if the motions are granted, there will be no need. If they are not, so far as any duplication of evidence, I don't believe it would be necessary to duplicate it. I think we could stipulate it would be the same. I don't know of any intelligent way you can pass on these motions and the admissibility of evidence other than to take them up and dispose of them.

COURT: We will proceed with the motions as has been suggested.

MR. HOWARD: All witnesses subpoenaed by the defendant stand up and raise your right hand.'

Appellant's attorney then proceeded to elicit from prospective State's witnesses the evidence in detail he was seeking to suppress.

During two days testimony from police officers, numerous articles were identified as those missing from business places residents, and offices that had been broken and entered in Jonesboro, and it was definitely established by witnesses on direct examination by appellant's attorney before the judge of the circuit court that some of these articles had been pawned by the appellant and others found in and recovered from appellant's automobile and his home. After appellant's attorney had introduced into the record appellant's detailed written confession that he had broken and entered all the places reported burglarized and had taken the objects identified and had destroyed and disposed of others, it was stipulated between the appellant's attorney and the prosecuting attorney that if appellant's motion to suppress the evidence should be overruled by the court, then the evidence introduced in support of the motions could be treated as if the State had introduced exactly the same evidence on its petition to revoke the suspension of sentence.

The fact that the burglaries and grand larcenies had been committed by appellant and that appellant freely admitted that he had committed them, does not seem to be seriously questioned in this case. The competency of the evidence for the purpose of the State's petition to revoke is what is questioned by appellant in this case, and that brings us to the crux of appellant's contention on his motions to suppress.

Appellant, in effect, says that if he had not been unlawfully arrested, neither the police officers, nor the court, nor anyone else would ever have known that it was he who had burglarized the houses, business places, and offices in Jonesboro, and that the court would never have known about money and goods he had stolen, pawned, hid in his home and carried in his automobile and on his person, and would never have known about his bad conduct in general if he had not confessed to the crimes, and if he had not directed the officers to where he had hidden the stolen goods and objects while under the unlawful arrest.

Appellant says that his constitutional rights were violated in the manner of his arrest and that the meat cleaver or corn knife he carried in his hip pocket, the stolen pipe lighter he carried on his person, the stolen gun case and jewelry he carried in his automobile, the stolen radio he had in his home, the stolen shotgun he had pawned at a grocery store for ten dollars, as well as his voluntary confession that it was he who had committed the numerous burglaries where these objects were obtained were simply 'fruits of a poison tree' as announced by the United States Supreme Court in the California case of Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441, and that this evidence was incompetent and totally inadmissible as evidence of his bad behavior, on a petition to revoke the suspension of the final pronouncement of sentence on his previous guilty of felony judgment, bearing no taint.

There is a great deal of difference between the Wong Sun case and the case at bar, but we will not prolong this opinion by distinguishing the two except to point out, that the defendants in the Wong Sun case were not under a suspended sentence and brought into court on a motion to revoke a suspended sentence under the laws of Arkansas.

Appellant's apprehension came about in this manner--about 11:00 one night officer Gammill of the Jonesboro police department received a complaint from a Mrs. Taylor that there was a prowler in her house at 330 Carson Street. Officer Gammill drove to the address in a squad car, found no one in the house but proceeded to drive around in the neighborhood. Sometime within fifteen minutes after his investigation at the house, and while still cruising around in the neighborhood near Mrs. Taylor's house, officer Gammill saw the appellant in the street running south away from the direction of the Taylor house and about a block or a block and a half from the house. Officer Gammill overtook the appellant and after 'conversing with him' told the appellant he was under arrest for...

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19 cases
  • Jones v. State
    • United States
    • Arkansas Supreme Court
    • May 26, 1969
    ...cert. denied, 393 U.S. 926, 89 S.Ct. 260, 21 L.Ed.2d 262; Reed v. United States, 401 F.2d 756 (8th Cir. 1968). See also Smith v. State, 241 Ark. 958, 411 S.W.2d 510. 4. The trial judge conducted an extensive hearing on appellant's motion to suppress this evidence. The evidence heard was vir......
  • Ellingburg v. State
    • United States
    • Arkansas Supreme Court
    • April 9, 1973
    ...cert, denied, 393 U.S. 926, 89 S.Ct. 260, 21 L.Ed.2d 262; Reed v. United States, 401 F.2d 756 (8th Cir. 1968). See also Smith v. State, 241 Ark. 958, 411 S.W.2d 510. In connection with this point appellant also contends that error was committed because he was not afforded a preliminary hear......
  • Reed v. United States
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • September 26, 1968
    ...cause have been sustained by the Supreme Court of Arkansas. Read v. State, 242 Ark. 821, 415 S.W.2d 560 (1967); Smith v. State, 241 Ark. 958, 411 S.W.2d 510 (1967); Russell v. State, 240 Ark. 97, 398 S.W.2d 213 (1966). In Theriault, supra, we equated Arkansas' statutory standard of reasonab......
  • Garcia v. State
    • United States
    • Arkansas Supreme Court
    • April 30, 1998
    ...falling under the former § 5-73-121 was a separate crime from conduct proscribed under the former § 5-73-120. In Smith v. State, 241 Ark. 958, 411 S.W.2d 510 (1967), we affirmed the revocation of a suspended sentence based on conduct which violated the former § 5-73-121. In Smith,the appell......
  • Request a trial to view additional results

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