210 S.W.2d 897 | Ark. | 1948
Appellant was charged in an information filed by the Prosecuting Attorney with violating the statute (3063, Pope's Digest) which forbids possessing or having in one's custody tools designed for burglary. A trial jury found him guilty and fixed his punishment at imprisonment in the penitentiary for three years. From judgment on the verdict this appeal is prosecuted.
These assignments of error are argued here:
I. That the motion to quash the information should have been sustained.
II. That the court should, on account of insufficiency of evidence against appellant, have directed a verdict of "not guilty."
III. That the lower court erred in refusing to permit appellant to challenge peremptorily two jurors previously accepted.
IV. That a coat owned by a man named Strong was improperly admitted in evidence.
V. That error was committed by the lower court in giving and refusing certain instructions. *420
VI. That the lower court erred in allowing the Prosecuting Attorney to make certain statements in his argument to the jury.
This information was in substantially the language of the statute and was sufficient. Satterfield v. State,
Appellant urges that constitutional amendment No. 21, authorizing prosecution of crimes by information is contrary to the constitution of the united states. We considered this question in the case of Penton v. State,
The evidence disclosed that about 3:30 in the morning a policeman discovered two men standing in front of a store on Main Street in Little Rock. Hearing a noise, the policeman started toward the store and then discovered three men running away from there. The policeman ordered them to halt and fired his pistol in the air, but they continued running. A few minutes later he found one of the men, Strong, hiding under the steps in the rear of a nearby building. Other police were summoned and it was found that the front door of the store had been "jimmied" open. Two "jimmy bars" and a pair of woolen gloves were found in the vicinity.
About daylight appellant was found by officers. His shirt was wet with perspiration and when approached by officers he gave an unsatisfactory explanation of his presence in Little Rock. When arrested he had on his person title papers to a 1946 Mercury automobile. This car was found parked at Thirteenth and Louisiana Streets, a distance of about two blocks from the store where the burglary was committed.
It is argued by appellant that there was no proof as to the distance intervening between Thirteenth and Louisiana Streets and the burglarized store at Twelfth and Main Streets. But this was a matter of which the lower court might properly take judicial knowledge, and which was probably well known to every member of the jury. "Courts sitting in a city judicially notice the streets, squares, and public grounds thereof, their location, and relation to one another, . . . ." 20 Am.Jur. 78.
The police discovered appellant's coat and Strong's coat in the Mercury car. Appellant admitted to one of the officers that he owned the automobile and asked that he be permitted to have his glasses which had been taken therefrom. In the cardboard box where appellant's glasses were located some of the alleged burglar's tools were found. When one of the officers showed appellant these tools and told him he would be charged with possessing *422 burglary tools appellant replied: "That is not a complete set of burglary tools."
Officers experienced in police work testified that the tools found in appellant's car were useful as tools for burglary. One of these witnesses testified that the collection of tools taken from appellant's car was "the customary assortment . . . that most burglars have to carry out their work."
The testimony was sufficient to authorize the jury finding that the tools in question were such as those described in the statute, the possession of which was made unlawful. Prather v. State,
(1). The Prosecuting Attorney, referring to Strong's coat which the officers found in appellant's car, said: "What explanation have they made of that?" Appellant contends that this argument was a comment on appellant's failure to testify. We conclude that this remark is not fairly susceptible of the meaning attributed to it by appellant.
(2). The Prosecuting Attorney said: "Where is the other man? Nick Cascio know's where he is and who he is, and if we knew we could have him here in short order." While this argument might have been somewhat irrelevant, yet, in view of the state's evidence, indicating that appellant, Strong and a third man were jointly engaged in a criminal enterprise, the argument was not prejudicial to appellant.
(3). In referring to appellant the Prosecuting Attorney said: "He is a professional thug and came here to commit the crime of burglary." If the testimony of witnesses for the state is credible then the statement of the Prosecuting Attorney was true. Ingle v. State, *424
(4). Finally, the Prosecuting Attorney said: "If you want to invite and encourage out of the city thugs to come into this place . . ." Objection to this argument was also sustained by the court.
Necessarily, a broad discretion in controlling argument of attorneys is given to trial judges. Wilson v. State,
The judgment is affirmed.