Williams v. State

• Decision Date: 02 June 1975
• Docket Number: No. CR,CR
• Parties: James Edward WILLIAMS, Appellant, v. STATE of Arkansas, Appellee. 74--157.
• Court: Arkansas Supreme Court

Page 377

523 S.W.2d 377

258 Ark. 207

James Edward WILLIAMS, Appellant, v. STATE of Arkansas, Appellee.

No. CR 74--157.

Supreme Court of Arkansas.

June 2, 1975.

Bobby McDaniel, McDaniel & McDaniel, Jonesboro, for appellant.

Jim Guy Tucker, Atty. Gen., by Gary Isbell, Asst. Atty. Gen., Little Rock, for appellee.

FOGLEMAN, Justice.

Appellant James Edward Williams was charged with the crimes of burglary and grand larceny. He pleaded not guilty and was found by a jury to be guilty of both charges. After deliberation on appellant's habitual offender status the jury fixed his sentence at 21 years and 6 months on each charge, to run consecutively for a total of 43 years.

Appellant argues for reversal that there was insufficient evidence to sustain a conviction for burglary and grand larceny. He asserts there was no proof adduced by the state placing him in the store which was burglarized, nor any evidence of his indirect participation in the burglary. His conviction, he argues, was based solely on circumstantial evidence, sufficient to raise no more than a suspicion of guilt. On appeal, in criminal cases, as in others, the evidence must be viewed in the light most favorable to the appellee, and the judgment affirmed if there is any substantial evidence to support the jury's verdict. Parker v. State, 252 Ark. 1242, 482 S.W.2d 822.

Mr. Bob Snider, manager of the OTASCO store in Jonesboro, testified as to the condition of his store as it was found on Tuesday following the Labor Day weekend, 1973. According to him, someone had gained access to the store by kicking out a window. The office had been ransacked. The locked security case holding his inventory of handguns had been broken into and fifteen pistols, which he, using business records, identified by make, caliber and value, were taken. He identified two missing automobile tape players by serial number and price. The bottom of the store safe had been broken out, the cash register hammered on, and $179 in change kept in rolls was missing.

Albert Brumley, manager of a used car lot in Jonesboro, testified that early on the morning after Labor Day he purchased from appellant, for $20, two auto tape players packaged in sealed boxes stamped 'OTASCO', and got $63 in rolled change from him as well. John Hitchcock, the police officer Brumley notified, and to whom he delivered the tape players when he determined they were stolen, identified two tape players in court as the ones he received from Brumley. Their serial numbers matched the numbers the OTASCO manager testified were on the tape players missing from his store after the burglary.

Matthew Prunty testified that on September 3, at 7:30 a.m., he drove appellant, at the latter's request, to Pocahontas 'to the man what buys old guns.' Appellant had with him a metal box and a paper box. On the way, he testified, appellant said only one thing, 'Man, I been up all night.' The witness testified that when he inquired as to the reason, appellant just dropped his head and 'didn't say nothing else.' He testified that Mike Skeet, the man they were going to see, bought guns from appellant for $125, that Mike took the metal box, and when the witness and appellant returned to Jonesboro, appellant gave the witness a pistol and a Timex watch, which were not old items.

Michael George Skeet testified that some date around Labor Day, 1973, (he didn't remember what date exactly) he purchased fourteen handguns from appellant, for $120. He said that appellant was accompanied by Matthew Prunty, but appellant alone was dealing in the guns. Skeet identified a number of guns in the courtroom as those he had purchased from appellant. The make, caliber, and serial number of those guns matched those of the guns taken from OTASCO.

The fact that evidence is circumstantial does not render it insubstantial--the law makes no distinction between direct evidence of a fact and evidence of circumstances from which a fact may be inferred. Lancaster v. State, 204 Ark. 176, 161 S.W.2d 201; Parker v. State, 252 Ark. 1242, 482 S.W.2d 822; Simmons v. State, 255 Ark. 82, 498 S.W.2d 870. The argument made by appellant here has been rejected by this court many times. Possession of property recently stolen from burglarized premises, not satisfactorily explained to a jury, is sufficient to support a verdict of guilt of both the burglary and larceny, even though there is no other evidence to show that the possessor had committed the crimes with felonious intent, either in person or by being present aiding, abetting and assisting another. Taylor v. State, 254 Ark. 620, 495 S.W.2d 532; Richie v. State, 250 Ark. 700, 466 S.W.2d 462; Duty v. State, 212 Ark. 890, 208 S.W.2d 162; Johnson v. State, 190 Ark. 979, 82 S.W.2d 521.

Appellant next assigns as error the refusal of the trial court to allow Paul Guilton, a defense witness, to testify because of his violation of the rule of sequestration of witnesses. Appellant had invoked the rule when the trial commenced. Appellant had testified in his own behalf that he had purchased the two tape players for $17 or $18 from a man from Memphis, who said he had gotten the tapes from his brother's place in Little Rock, assuring appellant they were not stolen, and saying he wanted enough money to get home to Memphis, having lost his wallet. This sale was supposed to have taken place on Labor Day morning, 1973, on East Washington Street in Jonesboro in the presence of Matthew Prunty. After appellant testified, Paul Guilton was called to the stand. The State objected on the ground that Guilton had been present in the courtroom. The trial court ascertained from Guilton that he had indeed been present from the beginning of trial that morning, and had heard all of appellant's testimony. It appears that Guilton, having been brought from jail in order to testify, found his way into the courtroom rather than the witness room, through no fault of, or complicity with, appellant. Over the vigorous exceptions of appellant's counsel, the trial court excluded Guilton from testifying, without ever inquiring about or considering that nature of the testimony.

The rule consistently applied by this court is that a violation by a witness of the rule of sequestration of witnesses, through no fault of, or complicity with, the party calling him, should go to the credibility, rather than the competency of the witness. Harris v. State, 171 Ark. 658, 285 S.W. 367; Hellems v. State, 22 Ark. 207; Golden v. State, 19 Ark. 590; Pleasant v. State, 15 Ark. 624. The power to exclude the testimony of a witness who has violated the rule should be rarely exercised. We have been unable to find any case in which this court has sustained that action of a trial court excluding the testimony of such a witness. While the witness is subject to punishment for contempt and the adverse party is free, in argument to the jury, to raise an issue as to his credibility by reason of his conduct, the party, who is innocent of the rule's violation, should not ordinarily be deprived of his testimony. Harris v. State, supra; Aden v. State, 237 Ark. 789, 376 S.W.2d 277; Mobley v. State, 251 Ark. 448, 473 S.W.2d 176.

Although the trial court has some discretion in the matter, its discretion is very narrow and more readily abused by exclusion of the testimony than by admitting it. Harris v. State, supra. It has even been held that failure to make a formal proffer of the testimony of a witness excluded upon no basis other than his violation of a sequestration order, without the knowledge, procurement or consent of defendant or defense counsel cannot be used to deprive the accused of his constitutional right to compulsory attendance of witnesses in his behalf. See Braswell v. Wainwright, 463 F.2d 1148 (5 Cir., 1972). See Art. 2 § 10, Constitution of Arkansas.

The State argues that appellant's proffer of what he expected to prove by Guilton, which was made while the jury was deliberating, came too late for the trial judge to act on it or for the jury to consider it. However, as long as a century ago this court held that where a witness is rejected on the ground of incompetency it must be presumed the trial court would have excluded the evidence, however material it may have been. Rickerstricker v. State, 31 Ark. 207; Miles v. St. Louis, I.M. & S. Ry. Co., 90 Ark. 485, 119 S.W. 837; Triangle Lumber Co. v. Acree, 112 Ark. 534, 166 S.W. 958; Shephard v. Mendenhall, 127 Ark. 44, 191 S.W. 237; Powell Bros. Truck Lines, Inc. v. Barnett, 194 Ark. 769, 109 S.W.2d 673. The State's objection, as well as the trial court's ruling, in this instance, went purely and simply to competency of the witness to testify. Hellems v. State, supra; Harris v. State, supra. See also Davenport v. Ogg, 15 Kan. 363 (1873). In such a situation a proffer has played no part in the court's exercise of discretion and serves no purpose other than permitting the appellate court to determine whether there has been an abuse of that discretion.

In Davenport, the court articulated the rule widely followed thus:

. . . The rule seems to be this: When the court below excludes evidence because the evidence, and not the witness, is supposed to be incompetent, the record must contain the evidence sought to be introduced, so that the appellate court may see whether it is competent or not; but where the court below excludes a witness because the witness, and not his evidence, is supposed for any reason to be incompetent, then all that is necessary to be put in the record is enough to show whether the witness is competent or not upon the ground upon which he is excluded; and it is not necessary in such a case to put into the record what the witness would testify to. Where the competency of the witness is objected to for any particular reason, it will be presumed, unless the contrary appears, that no other reason for his exclusion exists. And hence, in such a case, all that is necessary, as a general rule, for the record...