Strode v. State, CR

• Decision Date: 07 June 1976
• Docket Number: No. CR,CR
• Citation: Strode v. State, 259 Ark. 859, 537 S.W.2d 162 (Ark. 1976)
• Parties: Delmer STRODE, Appellant, v. STATE of Arkansas, Appellee. 76--17.
• Court: Arkansas Supreme Court

Page 162

537 S.W.2d 162

259 Ark. 859

Delmer STRODE, Appellant, v. STATE of Arkansas, Appellee.

No. CR 76--17.

Supreme Court of Arkansas.

June 7, 1976.

Erwin L. Davis, Fayetteville, for appellant.

Jim Guy Tucker, Atty. Gen., by Jackson Jones, Asst. Atty. Gen., Little Rock, for appellee.

ROY, Justice.

On April 4, 1975, three informations were filed, each charging appellant with the crime of selling intoxicating liquor on Sunday, and each also charged that appellant had previously been convicted of a like offense.

On July 1, appellant was tried and found guilty of a first offense of selling intoxicants on Sunday, February 9, 1975. The remaining two informations for alleged offenses on February 16, 1975 and March 2, 1975, were consolidated and tried on August 14, 1975. No appeal was taken from the July 1 conviction. The August trial resulted in convictions on both remaining informations, and appellant was fined $500 and sentenced to 15 days in the county jail on each. From those convictions this appeal is brought.

Appellant first alleges error in the trial court's failure to instruct the jury according to his proffered instruction no. 1. This instruction provided, 'If you should find the defendant guilty (of one or more charges) then you should affix his fine (on each charge) at no less than $100 nor more than $500.'

Appellant was charged pursuant to Ark.Stat.Ann. § 48--901(b) (Repl.1964), which in pertinent part reads as follows:

Any person who shall sell intoxicating alcoholic liquor on Sunday . . . shall be guilty of a misdemeanor and for the first offense be punishable by a fine of not less than One Hundred Dollars ($100.00) nor more than two hundred and fifty dollars ($250.00), and for the second and subsequent offenses he shall be guilty of a misdemeanor and punishable by a fine of not less than two hundred and fifty dollars ($250.00) and not more than five hundred dollars ($500.00) or by imprisonment in the county jail for not less than ten (10) days nor more than six (6) months, or both so fined and imprisoned in the discretion of the court of jury. (Italics supplied.)

The State introduced into evidence a copy of the order indicating appellant had been convicted on July 1, 1975, of the offense of selling liquor on Sunday. Appellant contends that since on the date the informations were filed he had not been convicted, the July 1, 1975, conviction should not have been used to enhance his punishment in either case on appeal here.

Appellant was on notice from the time the informations were filed that a prior conviction was charged in each. Appellant obviously was aware of his conviction of July 1, 1975, and of its possible application in any later convictions. While it is not the customary practice for the State to rely on a conviction not yet existent at the time the informations are filed no prejudice has resulted from such action in this case. Accordingly we find appellant was not denied benefit of notice and the opportunity to prepare and respond accordingly.

It also is noted that the offenses which led to the convictions involved in this appeal occurred on February 16, 1975, and March 2, 1975. Section 48--901(b), supra, provides for enhanced punishment for second and subsequent offenses, not for second and subsequent convictions.

Appellant next questions the trial...