*1
Hershel
MARTIN STATE of Arkansas
Doyle
CR 80-261
Supreme Arkansas Opinion delivered April *2 E, Defender, Alvin State Schay, Appellate by: Jackson Defender, Jones, Deputy Appellate for appellant. Clark, Gen.,
Steve Holder, Atty. by: Theodore Asst. Gen., for Atty. appellee. Appellant, Hershel Mar- Doyle Hays, Steele Justice.
tin, was tried and convicted on four counts theft of of prop- in erty § violation of Stat. Ann. 1977). (Repl. The stem from incidents charges separate on August 1978, in which counterfeit checks A. purportedly issued by Inc., were cashed at Company, Tenenbaum branches separate a man Bank himself to the City representing of Twin be The in payee, checks were the amount of James Jackson. $3,582.51, $3,870.20, $3,672.15 $1,875.50. bore a They Gann, facsimile of Tenenbaum’s book- signature Jean keeper, who testified that while the checks resembled those used not, were in company, they not theirs and were fact, her. The signed by checks were initially debited against Tenenbaum’s account with Twin Bank after City but dis- the withdrawals were covery credited back to the account. The several appellant urges points for reversal of the First, conviction. that the information was defective fatally since the proof of ownership of the at trial did not property information. allegation Appellant argues that the trial court erred in motion for a denying appellant’s directed on that acquittal ground. disagree.
The information filed against appellant alleged that Hershel Doyle Martin:
On or about the 26th day with the August, the true purpose of owner of its depriving property, take unauthorized control over property having [did] $2,500.00,
value excess of such by deception, being of A. Tenenbaum property Company. The three counts contain identical remaining language for the value count IV. except allegation The at trial that is uncontroverted the checks proof made to of A. appear issue were be those Tenenbaum Inc., did issue the Company, company checks and that Bank Twin restored amounts of City checks A. Tenenbaum after the theft Company’s account this, was discovered. From argues irreparably information was defective since the property i.e., the question, received from the bank money upon pre- checks, sentment A. was not fact property *3 in The Tenenbaum the information. Company alleged is without merit. argument code,
Prior the enactment of present our criminal Arkansas a of recognized offense separate “obtaining per- § sonal false Ark. property by pretense.” Stat. Ann. 41-1901 1964). (Repl. That offense was defined as: firm person, or Every corporation who with intent defraud, therefore, cheat or avoid shall payment design- of edly by any color false token or ... obtain writing any ... money shall be deemed guilty larceny, and punished accordingly. that the appellant, observe obtained having money checks, color a
by false here fictitious could have writing, prosecuted been under the old pretense” “false statute. § As Ark. Stat. Ann. 41-2202 (Repl. 1977) specifically provides: Conduct denominated theft in this Chapter [§§
— constitutes a offense the single embracing 41-2208] separate offenses heretofore larceny, known as embez- zlement, blackmail, pretenses, extortion, false fraudu- conversion, lent stolen receiving and property, other A similar offenses. criminal charge theft may be supported evidence that it was committed any manner that would be theft under this not- Chapter, the a manner withstanding specification of different information, indictment only of the court to a fair ... power ensure trial where defense conduct would be lack of prejudiced fair notice or by surprise. (Emphasis supplied.) issue, therefore, The is whether filed the information fair against defense lack of prejudiced “by notice or by We are it did surprise.” satisfied that not. Appel- lant makes no nor he allegation showing preju- that, diced. More than A. property stolen was that of checks, Tenenbaum The Company beyond any doubt. were drawn A. forged, on funds of although Tenenbaum on Company deposit Twin Bank. The account City on number the checks was the A. correct account number of Tenenbaum the balance Company company’s account exceeded the amounts withdrawn. The monies paid out the bank reliance on specious these checks to A. Tenenbaum fact belonged Company. The that under the law the bank is liable to its customer when cashes does forged instrument not alter the initial character of the crime of theft. It ownership the time the offense to, occurs should be looked who bears ultimately loss. This element this distinguishes case from the case of Boyette on *4 which appellant relies.
Second, the that the appellant trial court erred argues admitting testimony out-of-court, prior, identi- concerning witnesses, of the fications certain two appellant by as to case, counts In the information. present police officer, T. Farley, allowed to that two weeks testify J. after the crime had he shown a six “line-up” photographic to five banks tellers that each had the defendant. picked That the tellers have could themselves testified to their own identification of the defendant under the Uni- extra-judicial form Rules of Evidence is Rule 801 beyond argument. (d) (1) (iii) provides:
A statement is not if: at (1) declarant testifies hearsay 380
the trial or and is subject cross-examination and the statement is ... concerning (iii) one of identification of a made after person perceiving him. ... State, 33,
And v. recently Conley Ark. 612 272 we made clear: 722
Therefore, we that hold a witness may testify on direct examination that he has identified the previously defendant and relate when and such may where identi- fication took 41. place. at Conley, However, the issue here is whether the presented officer to the under Rule extrajudicial identifications We 801(d)(1)(iii). are aware that prior to adoption 1 we held 801(d)( )(iii) that of the nature here in question admissible, was not in the notably cases Trimble & Williams v. Ark. S.W. 2d 227 83 v. State, (1957) and Hicks S.W.2d (1959). said, As we the bank tellers could have testified to their identifications extrajudicial defendant under Rule above. We now 801(d)(1)(iii). Conley, hold where there used, is no defect the identification and where procedure each persons of the making identification is present cross-examination, at trial and recall, subject is defense, called as a being hostile witness then a witness to the
as to the existence and circumstances of the extrajudicial identification. hold that under Rule 1 Officer 801(d)( )(iii) Farley could that each properly testify of the bank tellers identified initially the appellant as the individual commit ting offense. In are so holding, persuaded by State, above, observation first Conley line-up identification is often “more than in-court reliable identifi cation.” Conley, 41.
Finally, there is insufficient argues evidence to on appellant’s conviction two of the counts charged. This based argument on the somewhat *5 equivocal in-court appellant by However, tellers who cashed of the two checks. as we have held under the need previous point, jury rely solely identifications, on the in-court also consider identifications testified to Officer by Farley, well as on the all four On we similarity episodes. appeal, must view the evidence in the most favorable to the light Lunon v. 264 Ark. appellee, so, In (1978). observe that the doing posi- identified as the offender all five tively tellers after shortly trial, the crime and three of them at two nearly though had years elapsed. believe there was sufficient evidence to conviction on the two counts here questioned.
For the reasons in this given opinion, we affirm the trial court. J., dissents.
Purtle,
Holt, J., not participating. Justice, with the dissenting. agree Purtle, I. I John appellant that the trial court committed reversible error in Officer T. allowing Farley give hearsay relat- J. to two ing witnesses who were unable to make in-court identification of the appellant. The officer was allowed to that the two witnesses had made identi- fication of the appellant from photographs viewed at the I police station. am of the opinion that all of our case law and our rules of evidence prevent such testimony from being received.
Uniform Evidence, Rules of states: ***
(c) Hearsay. is a than one “Hearsay” other declarant while at the trial or testifying offered in hearing, evidence to prove the truth of the matter asserted.
(d) Statements Which are Not A Hearsay. statement not hearsay if:
382
(1) Prior statement witness. The declarant at testifies the trial and to cross-examination is ... (iii) and statement concerning one identification of a made after person perceiving him; or
*** when the officer testified that two of the Obviously, witnesses identified the at some before photographs point trial, this was as defined in Of clearly (c). 801 hearsay course, 801 (d) to set out the to the attempts exceptions and his fit hearsay does not into the clearly excep- If tion. the witnesses they had testified that photo- observed station, at the it graphs police then have would been harm- less to allow the officer to had indeed verify looked they and photographs made positive identification at time. This same question was considered in the case State, Conley wherein (1981), 272 we stated: 33 If any confusion existed as to our decisions in the prior identifications, matter of extrajudicial has been put to rest Acts of Arkansas In No. amending 1097. the Arkansas Uniform Rules of Evidence the purpose Act was stated Assembly General tobe amend (d) (1) ‘prior to include identification person’ of a which definition statements are ... not hearsay.
We further stated:
Therefore, we hold that a witness on direct examination, that he has identified the previously defendant and relate when and where such identi- fication took place.
Thus, our both case law our rules a permit witness testify prior an identification of accused nowhere is there any for authority witness to allowing another witness made an an accused.
In the Ark.104 case ofCromwell v. person, police officer, third could not held that a testify such as a on an that another witness identified accused In identifica- earlier occasion. Cromwell the prosecuting permitted that of the witness. tion which we *7 in a that he identified the His line-up appellant earlier and that he also saw on an occasion pretrial Therefore, conference. at a par- Conley, supra, third Cornwell hold that a neither ty nor extrajudicial identification witness as to ordinary given plain rule, another witness. The its interpretation, testimony. Therefore, I also excludes this trial. would reverse the case and remand for another Eugene Hiram MEYERv. STATEof Arkansas CR 614 S.W.
Supreme Court of Arkansas Opinion May delivered