Stewart v. State

• Decision Date: 12 September 1966
• Docket Number: No. 5197,5197
• Citation: 406 S.W.2d 313,241 Ark. 4
• Parties: Clarence STEWART, Jr., Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 313

406 S.W.2d 313

241 Ark. 4

Clarence STEWART, Jr., Appellant, v. STATE of Arkansas, Appellee.

No. 5197.

Supreme Court of Arkansas.

Sept. 12, 1966.

Rehearing Denied Oct. 17, 1966.

Harold B. Anderson, Little Rock, for appellant.

Bruce Bennett, Atty. Gen., by Jack L. Lessenberry, Asst. Atty. Gen., Little Rock, for appellee.

McFADDIN, Justice.

The first question on this appeal is whether the confession was voluntarily made by the appellant. This case has been before us on previous occasions. See Stewart v. State, 233 Ark. 458, 345 S.W.2d 472, Cert. Denied, 368 U.S. 935, 82 S.Ct. 371, 7 L.Ed.2d 197; Stewart v. State, 237 Ark. 748, 375 S.W.2d 804, Cert. Denied, 379 U.S. 935, 85 S.Ct. 336, 13 L.Ed.2d 345. For angles of this case in other courts, Stewart v. Henslee, D.C., 206 F.Supp. 137; 8 Cir., 311 F.2d 691; 373 U.S. 902, 83 S.Ct. 1289, 10 L.Ed.2d 198; and Stewart v. Stephens, D.C., 244 F.Supp. 982.

The voluntariness of Stewart's confession was an issue discussed and decided in the Opinion of this Court in Stewart v. State, 237 Ark. 748, 375 S.W.2d 804, Cert. Denied 379 U.S. 935, 85 S.Ct. 336, 13 L.Ed.2d 345. That decision by us was on March 2, 1964; and at that time the Arkansas practice was to allow the jury to determine the issue of the voluntariness of the confession, in accordance with the holding of the United State Supreme Court in Stein v. People of State of New York, 346 U.S. 156, 73 S.Ct. 1077, 97 L.Ed. 1522. But on June 22, 1964, the United States Supreme Court delivered its Opinion in the case of Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, 1 A.L.R.3d 1205, in which case the United States Supreme Court held that the trial judge--and not the jury--should make the determination of the voluntariness of the confession before such confession was introduced in evidence to the jury. This is all discussed in our Opinion in the case of Nelson v. State (decided on September 13, 1965), 239 Ark. 678, 393 S.W.2d 614.

After the decision in Jackson v. Denno (supra), Stewart filed a petition in the United States District Court for the Eastern District of Arkansas; and, in keeping with Jackson v. Denno, that Court, in Stewart v. Stephens, D.C., 244 F.Supp. 982, on June 30, 1965, entered an order reading in part as follows:

'The State (of Arkansas) is given seven months from June 30, 1965, to either allow the trial court to conduct a hearing on the issue of voluntariness of Stewart's confession or to retry him. If, for good cause shown, it becomes impossible or inappropriate to try him within that period of time, application may be made to this Court by either Stewart or the State for a reasonable extension of time.' ¹

Pursuant to that order, the Pulaski Circuit Court conducted a hearing on November 17, 1965, to determine the issue of the voluntariness of the confession made by the appellant Stewart. The State produced four witnesses, being: Charles W. Tracy, a criminal investigator for the State; Ray D. Vick, Chief of Police of North Little Rock; Paul R. McDonald, Captain of the Arkansas State Police; and Hon. Frank Holt, formerly Prosecuting Attorney and later Justice of the Arkansas Supreme Court. These witnesses testified as to the voluntariness of the confession. The appellant offered no testimony to the contrary. The appellant's attorney stated near the conclusion of the hearing:

'I think, Your Honor, we are not so much concerned with the physical violence to the defendant as we are with the subtle means of getting him to confess. We think such means were taken.

'THE COURT: Develop it.

'MR. ANDERSON: I think the record develops it within the Federal Rules of the Constitution.'

The Circuit Court entered its judgment, finding and holding that the confession was voluntarily made. We have carefully reviewed the testimony and we find that the Trial Court was correct in such finding and holding.

In the Trial Court from whence comes the present appeal, the appellant sought to raise other issues in addition to that of the voluntariness of the confession. And now, on this appeal, appellant argues these other issues. Assuming, without deciding that such issues could be raised, we now dispose of them in an effort to prevent further delays.

(a) The appellant insists that he was proceeding against by information instead of by grand jury indictment. This point has long been settled adverse to the appellant. In Washington v. State, 213 Ark. 218, 210 S.W.2d 307 (Cert. denied by U.S.S.Ct., 335 U.S. 884, 69 S.Ct. 232, 93 L.Ed. 423), we said:

'Appellant was tried on an information filed by the prosecuting attorney, rather than on an indictment returned by a grand jury; and appellant claims that prosecuting him by information is violative of his rights under both the State and Federal Constitutions. Amendment 21 of the State Constitution reads:

"That all offenses heretofore required to be prosecuted by indictment may be prosecuted either by indictment by a grand jury or information filed by the Prosecuting Attorney.'

'This amendment has been upheld by this court against such attack as is here made, in numerous cases, some of which are: Penton v. State, 194 Ark. 503, 109 S.W.2d 131 and Smith et al. v. State, 194 Ark. 1041, 110 S.W.2d 24. The United States Supreme Court has repeatedly held that a State can--if it so desires--provide for a prosecution by information instead of by indictment Some of these cases are: Hurtado v. (People of State of) California, 110 U.S. 516, 4 S.Ct. 111, 28 L.Ed. 232; Bolln v. State of Nebraska, 176 U.S. 83, 20 S.Ct. 287, 44 L.Ed. 382; and Gaines v. (State of) Washington, 277 U.S. 81, 48 S.Ct. 468, 72 L.Ed. 793.'

(b) The appellant insists that his rights were violated in several respects, and relies heavily on Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977; and Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (decided June 13, 1966). We find all such claims of the appellant to be without merit. In Johnson et al. v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882, the United States Supreme Court held, on June 20, 1966, that the holding in Escobedo v. State of Illinois affected 'only those cases in which the trial began after June 22, 1964, the date of that decision.' The trial of appellant Stewart (affirmed by this Court in 237 Ark. 748, 375 S.W.2d 804, and being Case No. 5102 herein) began on August 5, 1963, and the verdict of guilty was returned on August 7, 1963. So the holding in Escobedo v. State of Illinois affords no relief to the appellant. Likewise, in Johnson v. State of New...