Tucker v. State

• Decision Date: 15 June 1970
• Docket Number: No. 5510,5510
• Citation: 248 Ark. 979,455 S.W.2d 888
• Parties: Charles C. TUCKER, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 888

455 S.W.2d 888

248 Ark. 979

Charles C. TUCKER, Appellant, v.STATE of Arkansas, Appellee.

No. 5510.

Supreme Court of Arkansas.

June 15, 1970.

Rehearing Denied Aug. 3, 1970.

Laws & Schulze, Russellville, for appellant.

Joe Purcell, Atty. Gen., Mike Wilson, Asst. Atty. Gen., Little Rock, for appellee.

HARRIS, Chief Justice.

Appellant, Charles C. Tucker, was charged under four separate Informations with the crime of Grand Larceny and the charges were consolidated for purposes of trial.The jury found Tucker guilty on all four counts and set his sentence at one and one-half years on each count.After the jury was discharged, and on waiver by the appellant, the court entered sentence in accordance with the jury verdict, the court ordering that said sentences run consecutively for the total of six years.In due time, Tucker filed a motion for a new trial alleging several grounds, ¹ and the court conducted a hearing, at which time evidence was heard that one of the jurors had been found guilty of burglary and grand larceny in 1955, and had never been pardoned; it was contended that this fact entitled appellant to a new trial.At the conclusion of the hearing, the court overruled the motion and granted appellant sixty days in which to perfect his appeal.From the judgment entered on January 26, 1970, in accordance with the jury verdict, Tucker brings this appeal.²For reversal, two points are asserted.It is first contended that the court erred in not granting a new trial when it was discovered after the verdict was entered that one of the jurors was disqualified by statute from acting as a juror, in that he was a convicted felon who had not been pardoned.It is also asserted that the court erred in refusing to answer a question from the jury foreman as to whether the sentences on the several counts charged would run concurrently or consecutively, and further, error was committed in informing the foreman of the jury that any recommendation for a suspended sentence would have to be unanimous.We proceed to discuss these contentions.

We do not agree that the court committed error in not granting a new trial on the basis of the first contention.Actually, there are several answers that could be made to this assertion under the particular facts in the case before us, though Sub-Section (e) of Ark.Stat.Ann. § 39--102(Supp.1969), provides that a person who has been convicted of a felony, and has not been pardoned, is disqualified to act as a grand or petit juror.

However, it is sufficient to point out that under the facts, the juror involved, John Woodard, was not a convicted felon.The record reflects that Woodard entered a plea of guilty to burglary in 1955, at which time he was thirteen or fourteen years of age, and was sentenced to the Arkansas Boys' Industrial School, the sentence however being suspended by the circuit court.In the case of State Medical Board v. Rodgers, 190 Ark. 266, 79 S.W.2d 83, Rodgers was convicted of a crime involving moral turpitude and was sentenced to serve three years in a federal reformatory.His license to practice medicine was suspended by the State Medical Board upon the premise that he had been convicted of a crime involving moral turpitude.The Pulaski Circuit Court vacated, set aside, and held for naught, the order of the board revoking the license, and from that judgment, the board appealed to this court.In upholding the circuit court, we said:

'In view of the fact that appellee has not been required to suffer the punishment prescribed in the judgment and sentence above-mentioned, the question naturally arises as to whether he has been convicted within the meaning of § 8242, Crawford & Moses' Digest.It is true that he pleaded guilty to a crime involving moral turpitude, and that he was sentenced to serve three years in the reformatory, but the court before whom that case was tried saw proper to set aside the sentence and put him on probation for a period of five years.On November 21, 1933, the execution of the sentence imposed was suspended until March 1, 1934, and on the latter date it was further suspended for five years; therefore at the time appellant held its meeting and revoked appellee's license, January 10, 1934, the sentence theretofore imposed had been suspended and something still remained to be done before he could be said to have been convicted within the meaning of the statute.'(citing case)

We said that notwithstanding a conviction, either by the verdict of a jury or a plea of guilty, 'the accused does not become a convict until there has been a judgment and sentence by the court.'We then stated:

'We think this case very much in point and decisive of the question here presented.There has been no conviction within the meaning of the statute.There has been no final judgment entered because the sentence has been suspended, and the appellee has not been required to surrender himself in execution of such judgment.'

It follows that since Woodard had...