Appellant was convicted by a jury of theft by receiving and his punishment was assessed at ten years’ imprisonment. Appellant contends that the trial court erred in denying his motion to suppress evidence secured by a warrantless search. He asserts the search was unreasonable under the Federal Fourth Amendment and Art. 2, § 15, Ark. Const. (1874). In denying the motion to suppress, the court ruled the search was conducted pursuant to a valid consent. Appellant argues that a search warrant should have been obtained. However, “[i]t is equally well settled that one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent.” Schneckloth v. Bustamonte,
Even so, appellant contends that the state failed to prove that the consent of appellant’s mother-in-law was voluntarily given because of the coercive nature of the confrontation. The voluntariness of consent to a search is a question of fact to be determined from the totality of the circumstances and the burden is on the state to prove that consent was voluntarily given by clear and positive proof. Harvey v. State,
Neither can we agree with appellant’s argument that his mother-in-law’s consent was procured through the officer’s friendship with her and, therefore, was involuntary. It appears Mrs. Griggs had not seen the officer but once since childhood and the officer made his purpose for being there known at the outset. Neither do we find merit in appellant’s contention that his mother-in-law’s inability to “read very good” vitiated her consent in view of the fact that the consent form was read and explained to Mrs. Griggs, who has an eighth grade education-
Appellant also questions whether or not Mrs. Griggs actually signed the consent form produced at the suppression hearing. She, herself, verified that her signature was authentic. However, she remembered signing the form in a different location than where her signature appeared. Both officers testified that her signature was in the same location as where she originally signed. This conflict in evidence was a question of fact for the court to resolve in determining the voluntariness of her consent.
Appellant next argues that his mother-in-law’s consent was not voluntary because the officers “x’d” out a portion of the form relating to her right to know that any evidence found might be used against her at trial. The officers testified that they deleted that portion because it was inapplicable to her since the seized property was not to be used against her. We perceive no resulting prejudice to the appellant.
Appellant further argues that even if the consent was voluntarily given, the state should be required to prove a knowing and intelligent waiver and since Mrs. Griggs was not told of her right to refuse consent to the search, the search was invalid. However, a knowing and intelligent consent is not required by our Federal Constitution. In Schneckloth v. Bustamonte, supra, the court said:
There is a vast difference between those rights that protect a fair criminal trial and the rights guaranteed under the Fourth Amendment. Nothing either in the purpose behind requiring a ‘knowing’ and ‘intelligent’ waiver of trial rights, or in the practical application of such a requirement suggests that it ought to be extended to the constitutional guarantee against unreasonable searches and seizures.
Rather, knowledge of the right to refuse consent is only a factor to be considered in determining the voluntariness of consent and the state is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent. United States v. Watson,
Appellant also argues that the search was rendered invalid by the officers’ failure to give Mrs. Griggs a receipt listing the items seized as required by Rules of Crim. Proc., Rule 11.4 (1976). Here a copy of the consent form with a list of the items seized was given to appellant’s wife. In the circumstances we perceive no prejudice is demonstrated.
Appellant next asserts that the court erred in overruling his motion to dismiss the charge of theft by receiving against him on the basis of former jeopardy and collateral estoppel. Appellant had shortly before been convicted of burglary in Benton County. During that burglary a television set was stolen. Appellant moved to dismiss the charge of theft by receiving this television set on the basis that the charge was predicated upon the same facts, circumstances and criminal episode as the burglary charge. The court denied the motion on the ground that burglary, is a separate offense from theft by receiving. Appellant contends that his rights, under the federal and state double jeopardy clauses to be free from multiple punishments for the same offense, have been violated because there has only been on continuous and related criminal activity for which he has received two punishments. We disagree. It is true, as appellant asserts, that Ark. Crim. Code § 41-105 (3) (1976) prohibits conviction of more than one offense when the same uninterrupted conduct may establish more than one offense and the conduct constitutes an offense defined as a continuing course of conduct. However, Ark. Crim. Code § 41-2002 (1976) provides that a person commits burglary if he enters or remains unlawfully in an occupiable structure with the purpose of committing therein any offense punishable by imprisonment. The commentary to § 41-2002 states that such an act of unlawful entry is an independent and substantive offense with the result that cumulative penalties may be imposed for entering with intent to steal and for stealing. Theft by receiving is committed when one receives, retains or disposes of stolen property knowing or with good reason to know it was stolen. Ark. Crim. Code § 41-2206 (1) (1976). The commentary to §41-2206 (1) states the purposes of the statute are to allow a person to be convicted of theft by receiving without proof that he took the property himself or acquired it from the actual thief and, further, to dry up the market in stolen goods thereby discouraging theft. In light of the above, it is clear that the legislature intended the offenses to be separate and to authorize multiple punishments.
It is well settled that the test, as to whether offenses constitute a continuing offense, is whether the individual acts are prohibited or the course of action which they constitute. If the former, as here, then each act is punishable separately. Britt v. State,
Appellant further argues that he cannot be convicted of both crimes because theft by receiving constitutes an included offense of burglary and § 41-105 (1) (a), as defined by § 41-105 (2) (a), all of the elements of the lesser offense must be contained in the greater offense — the greater containing certain elements not contained in the lesser. Gaskin v. State,
Additionally, appellant argues that theft by receiving is an included offense of burglary under § 41-105 (2) (b) because the burglary constituted an attempt to commit theft by receiving. The commentary to § 41-2002 states that by hypothesis every burglary is an attempt to commit some other crime, but the purposes of making it a separate offense were to cover the distinctive situation for which they were devised; i.e., invasion of premises under circumstances likely to pose a threat to the safety of persons, and to separate this concept from other concepts such as attempt. Since theft by receiving is not in the same generic class as burglary, § 41-105 (2) (c) is inapplicable to make it an included offense.
Appellant also contends that Ark. Grim. Code § 41-107 (1976) bars his conviction of theft by receiving. However, § 41-107 is not applicable where the two offenses require different proof of facts and the law defining each offense is intended to prevent a substantially different evil. Here appellant’s conviction for theft by receiving was not based upon his entry into an occupiable structure, but upon his possession of stolen property in a different county two days after the burglary, a distinct and separate evil. For the reasons previously discussed, § 41-107 is inapplicable.
As to appellant’s incidental argument that he was entitled to a continuance, we deem it sufficient to say that he has not demonstrated the court abused his discretion
Affirmed.