*1 claim, asserted, as appellee’s plaintiff, being one in- the Andres who has an language supra, “against terest it.” The trial court’s contesting declaratory judg- ment has In the we settled circumstances controversy. find no defect of parties.
Affirmed. Byrd Harris, Hickman,
We agree. C.J., JJ. Bert TYLER v. Billy STATE Arkansas 79-30 CR 2d 328 S.W. delivered
Opinion May (In Banc) *3 Kincade, A. Robert & of Kincade Cunningham, P. Ronald Newcomb, for appellant. Hartenstein, Asst. Clark, Gen., Atty. by:
Steve Atty. Ray Gen., for appellee. found was guilty A. Appellant Fogleman, Justice. John to three years and sentenced automobile
of theft of an reversal of his He seeks of Correction. Arkansas Department he was denied that conviction on the grounds to the Constitu- Amendment the Sixth counsel guaranteed States, he was denied due process the United tion of the re- on to instruct failure jury the trial court’s law by ac- of the of an of corroboration testimony quirement insufficient to and that the evidence was support complice, find no error and affirm. verdict. We reversible jury’s unauthorized was with theft by taking charged control to Lefler of a 1976 Chevrolet automobile belonging 11, 1978, information, Chevrolet filed May Company. 27, 1977. The that the offense occurred on charged January 11, 1978. Fred C. case was set for trial on October originally had filed a mo- Tyler, Kirkpatrick, attorney employed by tion to which the state on October for discovery, responded 1978, so the 1978. The motion had been filed on June in order to with the state moved for a continuance comply motion for and to better for trial. There discovery prepare was no on the The continuance objection part appellant. set for 1978. case trial on November granted whose statement According attorney, prosecuting controverted, not he was informed ten days by Kirkpatrick, date, before the sub- trial and before the issuance witnesses, knew of no the state’s poenas Kirkpatrick reason the should not be issued. On subpoenas Friday, however, before the case was to be tried on Wednesday, some indication prosecuting attorney on fil- trial the date set. going Appellant ed no motion for continuance and no affidavit stating any for a continuance. ground *4 trial,
When this case was called for an- Kirkpatrick nounced that the defense was and that had Tyler ready that, court, him. He stated an officer of the he as discharged felt to state that the sole and reason he was dis- only obliged was “because defendant wants a continuance.” charged that, added as a result his he Kirkpatrick being discharged, had not been able to witnesses and get appellant’s together that he had not been to There paid anything represent Tyler. was no indication that this from attorney withdrawing the case because he had not been im- paid. Tyler responded did not in but statement mediately, deny Kirkpatrick’s He stated that he not have another at- respect. simply one, and had not contacted that he had not his torney gotten witnesses and that he could not a until together get lawyer after the first of the year. to re- he was not then stated that going
The trial judge a it seemed by remarked ploy set the case and lately, in court on the show day in to up Searcy County people to a continuance. a order trial without get lawyer concession, a trying that he would make said judge date, that so been set for trial on Tyler another case that had was in while that trial and his witnesses could an attorney get that would be tried as soon as that case but Tyler’s progress, that also stated The trial case was concluded. judge to remain in the courtroom would be required Kirkpatrick such if desired the trial to assist Tyler Tyler, throughout assistance. that he would the trial said require
When judge courtroom, be said to Tyler Kirkpatrick present that did not want for a lawyer, might Kirkpatrick “[w]e well ahead this case first as then. It go don’t matter to that had no intention me.” When the remarked Tyler judge witnesses, time, even if some Tyler replied calling given them, he could were there was no that way get they and that he could not find them on the When job. working, be the next before the judge responded might day started, and asked if desired the ad- case Tyler’s Tyler time, that there was not time ditional answered Tyler enough The trial then lawyer. proceeded. prepare matter, an in on camera another During hearing admonished that he could not be Tyler judge required to, if but that he wanted he would be testify oppor- reminded do so. The also tunity judge Tyler him in the and was beside Kirkpatrick sitting present courtroom to assist him in wanted. ready any way Tyler “Me and him come to a on Tyler disagreement responded, other continued “This some matters.” saying, because I didn’t witnesses thing, really, my legitimate get until first of I had full intentions of after the together. waiting on of the case account election year try my I felt if I waited until after the first of the everything. year, would be better and I would all around aget things organized better trial and At the conclusion of the in everything.” *5 session, stated, camera “I would that finances and Tyler say for to do with would be a reasonable cause everything lawyers postponement.”
827 is continuance the of a that matter concedes Appellant de- that not the trial court and every the discretion within if even due violates process, a continuance nial of a for request v. counsel. See Ungar to defend without is the compelled party 2d 921 (1964). L. Ed. 575, 84 S. Ct. 376 U.S. Sarafite, in the however, relies Ungar opin- upon language Appellant, insistence expeditiousness upon ion in that “myopic arguing can render the for delay in of a request the face justifiable our In counsel an to defend with empty formality.” right was far insistence view, the trial expeditiousness upon judge’s farther from being and the delay from myopic be found in the answer must out As justifiable. Ungar, pointed of the in the circumstances case and particularly presented reasons to the trial the at time. The fact judge motion not made until the that the for continuance was day cir- there as one set for trial was recognized important cumstance. also relies the Chandler holding upon
Appellant (1954), that, 348 U.S. S. Ct. L. Ed. unless Fretag, consult a defendant opportunity employ counsel, to be heard counsel would be of lit- by statement, but, case, tle worth. We subscribe to that in this and did had Tyler ample opportunity employ, employ, counsel, but him on eve of trial. An discharged important U.S., Cir., (8 444 F. 1971), element 2d also Tollett was the that the did relied fact trial court by upon appellant, ter- not defendant as to the circumstances of the inquire mination of his and did not know attorney’s employment, had That whether or been resigned attorney discharged. element makes because in this Tollett distinguishable, informed as to cause of termina- judge adequately and there tion was a rational basis for that the dis- finding trial, on the eve of was because Tyler’s charge attorney, no had for a con- attorney Tyler recognized grounds another, tinuance and one or means his trial until after the first of the endeavoring postpone and that the was a year attorney discharge part effort. fact that show had made was an cir- effort another employ attorney important cumstance, since was infer that reasonable to the discharge had before the trial was taken five Kirkpatrick place days
828 out that court that decided Tolled The pointed to commence. on an ad be decided this must necessarily such as questions basis, that the United States Supreme out hoc having pointed “case case” maintained its ap Court had consistently that rule. had followed the Circuit Eighth proach Cir., 1975), also relied Bridon, (8 304 509 F. 2d upon v.Wolfs in find blameless defendant by appellant. Wolfs eve of trial. He without counsel on the depriv himself ing him of interest arose between ed when a conflict of counsel codefendant, turn state’s evidence. who decided to and a White, 2d 1390 held, in v. 529 F. court has U.S. The same shield, a not a Cir., to counsel is (8 1976), that the right to his sword, has no and that a defendant right manipulate also, v. of the trial. See for the delaying right purpose Relerford that, here U.S., Cir., 1962). 706 It is (9 309 F. 2d significant White, was insufficient the said the evidence as in where court no made intentional the show manipulation, counsel, did not was unable to obtain showing counsel, af- and declined the the of opportunity appointment this the counsel. But unlike forded to obtain other counsel reason for the retained discharge previously And in Patton v. or was never disclosed investigated. White Cir., 1963), Carolina, 2d 643 also relied (4 315 F. State North that the de- was evidence there indicating upon by appellant, counsel cause for fendant had discharging employed just obtain made some effort to sub- eve and had on the of trial stitute counsel. choose counsel that the right
It widely recognized
the
or subverted to obstruct
orderly
not be manipulated
may
fair, efficient
of the court or to interfere with
procedures
when a
and effective administration
justice, particularly
trial,
on
eve of
of choice is made
primarily
change
to obtain
effort
and without making any
delay,
purpose
substitute
Bentvena,
Cir.,
916 (2
319 F. 2d
counsel.
v.
U.S.
1963),
940,
345, 11
cert.
271
den. 375
84
L. Ed. 2d
U.S.
S. Ct.
Merriweather,
Penn., 1974);
(E.D.
376 F.S. 944
(1963); U.S. v.
Cir., 1972);
2d 666
v. State
(2
v.
461 F.
U.S.
Gandy
Morrissey,
McMann,
Cir., 1978);
Alabama,
(5
2d 1318
U.S.
569 F.
958, 88
Cir.,
390
S. Ct.
1967),
611
cert. den.
U.S.
(2
386 F. 2d
Llanes,
When evidence been judge, completed, order to ascertain whether there were to the any objections he the asked instructions jury, Kirkpatrick proposed give stated that there over them Tyler. go Kirkpatrick additional instructions were no No objections. any the now because was made. judge Appellant complains 43-2116 instruction, Ark. Stat. Ann. not an based give upon § of 1977), there must be corroboration (Repl. of can be con- an before an accused accomplice testimony victed of a that, evidence in He contends under the
felony. the burden was an He had this White Coy accomplice. was an an in- that White before such showing accomplice, State, 7, Ark. was v. struction McIntosh appropriate. 649. White’s refusal to S.W. 2d relies testify upon Appellant and White’s admis- without been use immunity having from transmission sion that he had received the engine the stolen car. if White
It contention guilty is appellant’s he thief were stolen and the accomplices, property, receiving State, McCabe 130 Ark. 585 and v. S.W. citing Murphy State, 2d we 245 Ark. 434 S.W. 277. On this argument, v. it because to the immunity cannot weight granting give of im- from claim the record that White’s does not appear for receiving was based a fear of upon munity prosecution fact, does not disclose As a matter of the record property. It was refusal to without immunity. of White’s testify basis self- when against White invoked his right granted saw the incrimination, he first asked when after been having evidence, There was some particularly automobile. been the thief. White have Tyler, might
testimony
ex-
connection with the stolen automobile
denied any
Tyler
house,
out of the mud and to White’s
driven it
for having
cept
was stuck.
the scene where
vehicle
after coming upon
at that time.
White
an
said
employee
Tyler
mud
vehicle stuck in the
had seen the
White admitted that he
im-
have been
It
that White
seeking
at St.
may
appears
Joe.
thief,
than
rather
as
from
as
munity
proseuction
White’s,
nor
version
does
receiver.
neither Tyler’s
Under
were
unless White
and White
accomplices,
appear
was an
receiver of stolen
as the
property.
accomplice
was an
of stolen
held that the receiver
We have
property
State,
cited
the thief since
supra,
accomplice
Murphy
our
based
holding
That
previous
upon
appellant.
holding
See Polk v.
an
after the fact is
that an
accomplice.
accessory
State,
778.
State,
111 Ark.
163 S.W.
117;
Ark.
Stevens
one
considered
least
In
we found that at
jurisdiction
Murphy,
cor-
within the rule
as
the receiver
an
requiring
accomplice
convicted as
roboration,
he could
be
even though
on the
our view solely
the fact. But we
after
accessory
adopted
the fact is an
Sweatt
basis that an
after
accomplice.
accessory
*8
State,
650,
2d 913. The more
Ark.
473
generally
v.
251
S.W.
is not
ac-
after the fact
an
view is that an accessory
accepted
786
It is clear that
3,
(1).
Law
23
Criminal
complice.
§
CJS
a receiver of stolen
is that
the decided weight
authority
theft,
aid, abet,
or induce the
or
who did not
assist
property,
thief steals the
whereby
prop-
join
plan
prearranged
thief.
it,
not an
the receiver
buys
accomplice
erty
Annot,
560,
3d
(19);
Law
ALR
Criminal
§
CJS
in other cases is
under
565, 567.
view of the matter
Our
relies, an
is one
which
the statute on
appellant
accomplice
with which the defend-
of the offense
who could be convicted
State,
870, 503
2d
255 Ark.
S.W.
ant is
Henderson
charged.
State,
917, 503
907.
also,
255 Ark.
S.W. 2d
889.
See
Ferguson
in accord with the
of authority.
This view is
weight
decided,
before the
an
the time
accessory
At
Murphy
aids,
assists,
abets or
as one who stands
fact was defined
by,
who,
had advised and
or
not
encouraged
being present,
Ann.
41-119
of the crime. Ark. Stat.
(Repl.
perpetration
§
code treats the
1964). The
criminal
concept
present
manner, which is consis-
in an
different
accessories
entirely
law, an
Under
tent with the
of authority.
present
weight
Ark. Stat. Ann.
the fact is an
before
accomplice.
accessory
§
1977).
who was
an accessory
41-303
One
formerly
(Repl.
i.e.,
crime,
now
of a
hindering
the fact is
after
guilty
separate
41-2805
Ark.
Ann.
prosecution.
Cf.
Stat.
§
apprehension
1977)
1964).
and Ark. Stat. Ann. 41-120
One
(Repl.
(Repl.
§
who
receives
for the
stolen
knowingly
purpose
property
or
of the offense or con-
safeguarding
securing
proceeds
into
funds
now be
verting
proceeds
negotiable
might
guil-
the consummation of an offense under Ark. Stat.
ty
aiding
State,
1977).
Ann.
41-2806
Cf. Hesterv.
149 Ark.
(Repl.
§
We should also
that we do not
say
agree
that the trial
had a
an instruction on the
judge
duty
give
for corroboration of
necessity
without
re-
accomplice
made,
been
whatever
he
quest
have
having
duty may
had to define the elements of the offense
and the
charged
burden of the state to
doubt,
them
a reasonable
prove
beyond
in this case where the accused had
counsel.
only stand-by
The court
is not
instruction
required
give
specific
to the
unless a motion
applicable
has been made
aby
Ark. Stat. Ann.
43-2134
party.
1977). It is
re-
(Repl.
§
instructions when none are
quired
give
Robertsv.
requested.
State,
254 Ark.
2d 390.
S.W.
We have made an excep-
tion to this rule in a case where a
the death
jury imposed
pen-
without
been
alty
(and
instructed that it
having
it) had
only
*9
the discretion to reduce the
to life
punishment
imprisonment.
State,
Webb v.
154 Ark.
We have held that one who fails to an instruction what constitutes an defining is not entitled to accomplice of the court’s State, failure to do so. complain Carrollv. 45 Ark. also, State, 539. See Roberts v. Even in a supra. jurisdiction where the court is to instruct the on required of jury questions law in the case which are arising the in- necessary jury’s formation in verdict, their without giving the any request by defendant, it is not bound to instruct the as to the nature jury and effect to be to the of an on its testimony accomplice the main is collateral to initiative,
own
the matter
because
Mahan,
1950). Failure
(Mo.,
This evidence was certainly support dict.
The is affirmed. judgment
Purtle, dissents. J., Purtle, 1. and his Appellant Justice, dissenting. John counsel severed their before shortly employed relationship called, was scheduled for trial. When the case was case informed the court he had been counsel discharg- appellant’s ed and was not for trial. The court determined ready desired continuance is that a and the appellant implication his saw no for did not one because he reason attorney reason, it. Whatever the the court a as offered one-day delay there was another trial to commence at the time. ready the offer as not sufficient time for Appellant rejected giving of his defense and to trial preparation represent- proceeded himself. reason the court for the re- One ing gave rejecting for continuance it was of a quest part “ploy” by people in to obtain a continuance. No reasons other Searcy County were this which statement would indicate support such scheme. appellant part The former was ordered sit at the defense attorney “if table him so appellant purpose assisting The was not to assist the attorney requested.” requested if he observed the like. He until errors or sat there appellant court instructions to the at which ready give jury time the the court’s was handed instruc- discharged attorney tions. No was made even there was no in- objection though struction to an The at trial court had not relating accomplice. time warned of the involved appellant dangers going trial without counsel. The record further reveals had not been continuance granted previous although state had been one. The case had been less granted pending than months. on the fact appellant discharged attorney *11 of the Sixth
eve of trial does not waive the requirements has the to the assistance Amendment that an accused nor was his offered such assistance counsel. He was not even rule in Chandler v. This violates the solvency questioned. U.S., and, Tollett (1954) 3U.S. Fretag, specifically, Adamsv. 1971). F. (8 2d 622 Such Cir. warning required U.S., (1942). U.S. should have instruction on
I also feel the accomplice court an accused is not been on the volition of the when the evidence was sufficient counsel. represented by Clearly, Therefore, would show White was an I Coy accomplice. reverse and remand. H. BAHIL et al
Charles T. Calvin SCRIBNER 2d 334 581 S.W. 79-3 29, 1979 delivered May Opinion (In Banc)