Ward v. State

• Decision Date: 10 October 1983
• Docket Number: No. CR,CR
• Citation: 280 Ark. 353,658 S.W.2d 379
• Parties: John Andrew WARD, Appellant, v. STATE of Arkansas, Appellee. 83-82.
• Court: Arkansas Supreme Court

Page 379

658 S.W.2d 379

280 Ark. 353

John Andrew WARD, Appellant, v. STATE of Arkansas, Appellee.

No. CR 83-82.

Supreme Court of Arkansas.

Oct. 10, 1983.

Ken Cook, Deputy Public Defender, West Memphis, for appellant.

Steve Clark, Atty. Gen. by Velda P. West, Asst. Atty. Gen., Little Rock, for appellee.

HAYS, Justice.

Appellant's conviction for burglary and theft of property was affirmed by the Court of Appeals [8 Ark.App. 209, 649 S.W.2d 849 (1983) ] by a vote of three to three, resulting in our granting appellant's petition for review pursuant to our Rule 29.6(c).

The Wonder Junior High School in West Memphis was burglarized sometime after 5:00 p.m. on Friday, February 5, 1982, when the school was locked for the weekend, and Monday morning. Musical instruments and shop tools, exceeding $2,500.00 in value, were stolen. Appellant, John Ward, was convicted of the burglary and theft of property and, having five felony convictions, received a lengthy prison sentence. On appeal, the only issue is whether a motion for a directed verdict for lack of evidence should have been granted. We affirm the Court of Appeals.

On the same morning the crime was discovered, Ward attempted to sell three of the stolen instruments at a Memphis pawn shop. A Memphis police officer, assigned to the pawn shop detail, was called to question Ward, who claimed to have been part of a musical group which had recently disbanded and the instruments were no longer needed. Pressed for evidence of ownership, Ward went to his car for identification but, instead of returning, he left the instruments and hurried away in the wrong direction on a one-way street. The Memphis police gave the West Memphis police a description of appellant's car and license number, which led eventually to his arrest. The tags had been removed from the automobile.

Ward at first denied having been in Memphis on February 8, claiming to have been at work. But employment records showed that he called in sick on February 8 and 9. His explanation for being in possession of stolen goods was that a fellow worker had found the instruments about fifteen minutes before quitting time at 3:53 p.m. on Friday, February 5, and Ward had volunteered to sell them for him. The worker had since died and was unavailable to the defense.

As early as 1879 we expressed the rule, already followed elsewhere, in cases of burglary, larceny and possession of stolen property that possession of recently stolen property is prima facie evidence of the guilt of the party in whose possession the property is found, unless satisfactorily accounted for by the evidence. Boykin v. State, 34 Ark. 443. Nor is the rule limited to larceny and possession. In Gunter v. State, 79 Ark. 432, 96 S.W. 181 (1906), we declined to draw a distinction between larceny and burglary, and explained the rule:

Such evidence raises no presumption of law as to the guilt of the accused, but only warrants an inference of fact, of more or less weight according to the particular circumstances of each case, which the jury may draw therefrom as to his guilt. It makes a question for the jury, and is sufficient to warrant conviction where it induces in the minds of the jury a belief, beyond a reasonable doubt, of the guilt of the accused.

Other cases applying the rule are: Williams v. State, 258 Ark. 207, 523 S.W.2d 377 (1975); Taylor v. State, 254 Ark. 620, 495 S.W.2d 532 (1973); Richie v. State, 250 Ark. 700, 466 S.W.2d 462 (1971); Duty v. State, 212 Ark. 890, 208 S.W.2d 162 (1948); Chapman v. State, 201 Ark. 91, 143 S.W.2d 575 (1940); Fletcher v. State, 198 Ark. 376, 128 S.W.2d 997 (1939); Morris v. State, 197 Ark. 778, 126 S.W.2d 93 (1939); Trammel v. State, 193 Ark. 21, 97 S.W.2d 902 (1936); Johnson v. State, 190 Ark. 979, 82 S.W.2d 521 (1935).

Here, Ward was found to be in possession on Monday morning of property stolen during the weekend, but we need not depend on that alone. His explanation to the jury that the stolen goods were found by a fellow worker, who entrusted them to Ward to sell was not only implausible, it was demonstrably false, as the state's proof was the goods were still at the school at closing time, an hour after Ward claimed they were found. Moreover, he admittedly lied, first to the Memphis officer as to how he came by the property and again when he told the West Memphis police he had not gone to Memphis that morning. Particularly significant is the fact that he took to his heels when the Memphis officer sought to obtain some identification from him, [See Murphy v. State, 255 Ark. 90, 498 S.W.2d 884 (1973) ], and his admission that before taking the goods to the pawn shop he made an anonymous call to the police to see if there had been any report of stolen goods affecting the instruments.

When the prosecution is based on circumstantial evidence the jury should be informed, as it was here, that circumstantial evidence must be consistent with the guilt of the defendant and inconsistent with any other reasonable conclusion, AMCI 106. But on appeal, our responsibility is simply to determine that the verdict is based on substantial evidence. Cassell v. State, 273 Ark. 59, 616 S.W.2d 485 (1981); Brown v. State, 258 Ark. 360, 524 S.W.2d 616 (1975). We find the evidence supporting the convictions to be substantial.

The judgment on the sentences is affirmed.

PURTLE and HICKMAN, JJ., dissent.

PURTLE, Justice, dissenting.

In dissenting I concede the majority opinion follows our precedent. However, it is my opinion that our case law is wrong. This opinion will no doubt encourage overcharging by the state as was suggested in the dissent from the Arkansas Court of Appeals. The appellant in the case before us was charged with three counts of burglary and three counts of theft of property. Why would the state charge a man with three burglaries growing out of one incident unless it is to sway the trier of fact to find him guilty of a single burglary? In this case perhaps thirty people could be convicted of burglary because anyone in possession of any one of the stolen items could be found guilty of the crime of burglary even though they may have never set foot in Arkansas.

It...