Cabbiness v. State

410 S.W.2d 867, 241 Ark. 898, 1967 Ark. LEXIS 1371

• Court: Supreme Court of Arkansas
• Decided: February 6, 1967
• Docket: 5233
• Status: Published

Opinions

George Rose Smith, Justice.

On the night of November 4, 1965, someone broke into Teague’s Produce Store in Berryville and pried off the door of a safe. Apparently the intruder left without having taken anything. The appellant, Lloyd Cabbiness, a resident of Little Rock, was arrested the following night and charged with the burglary. Upon trial he was found guilty and sentenced to imprisonment for five years. He questions the sufficiency of the evidence and the trial court’s rulings with respect to physical exhibits offered by the State.

We find the prosecution’s testimony to be sufficient to support the verdict. On the day of the burglary Cabbiness, a private investigator and former school teacher, borrowed a car from a woman living next to him in an apartment house and drove to Berryville. That evening Cabbiness was seen in downtown Berryville several times between seven and eleven o’clock. He was accompanied by an unidentified woman (not the owner of the car). Charles Robbins, a Berryville policeman, testified that early in the evening he directed Cabbiness to a telephone booth near the Teague building and that later on he saw Cabbiness’s companion sitting in the car alone. There was other testimony from which the jury might have found that Cabbiness returned to the car with some tools and a flashlight, whereupon the couple drove hastily away.

At about two in the morning' an employee of the produce company discovered that the building had been broken into and that the door of a safe had been “peeled” off. That door had been insulated by a layer of a white chalky substance. Whoever wrenched off the door had damaged the layer of insulation, scattering the chalky substance over the floor.

Officer Robbins had made a note of Cabbiness’s car license number. With that information the police quickly traced the owner of the car and learned that Cabbiness had borrowed it. After Cabbiness was arrested the police found particles of a white chalky substance on the front floorboard of the vehicle. Laboratory tests proved that the substance taken from the car was identical with that found near the safe.

Upon the foregoing testimony the jury were warranted in concluding that Cabbiness was the person who broke into the Teague building. The appellant contends, however, that there is no proof that he had the requisite intent to commit a felony or larceny, because apparently nothing was stolen. The short answer to this argument is that a larcenous purpose can fairly be inferred from the violent attack upon the safe.

The police took samples of the chalky substance from the scene of the burglary and from the car used by Cabbiness. It is now contended that the State failed to prove all the links in the chain of possession from the taking of the samples to their delivery to the police laboratory. Jones v. City of Forrest City, 239 Ark. 211, 388 S. W. 2d 386 (1965). The gaps, however, were not serious ones. For instance, Sheriff Bishop testified that he took a sample from the floor, put it in an envelope, and delivered it to Officer Atkinson the next night. The appellant argues that the whereabouts of the sample between the time the sheriff obtained it and the time he turned it over to Atkinson was not accounted for. Presumably it remained in Bishop’s possession during that interval, but any doubt about that can be dispelled at a new trial.

After Cabbiness was arrested the police returned to his apartment and searched it, without a warrant. Among other things they found a revolver and some clothing. Before the trial began the defense attorney filed a motion to suppress this evidence on the ground that it had been obtained illegally. The court refused to pass upon the motion, saying that it was premature and that he would rule upon the admissibility of the evidence when it was offered.

"When it became apparent during the trial that the State was about to offer the fruits of the illegal search, counsel for the defense asked that the witness be placed on voir dire; that is, that his testimony be heard out of the presence of the jury. That request was denied. The witness was theta, permitted to describe the revolver and the other articles that had been found in Cabbiness’s apartment. After the matter had thus been brought to the jury’s attention the court finally sustained the objection to the evidence.

Despite the riding the prosecuting attorney later asked another witness if the revolver had been loaded or unloaded. The defendant’s objection to the question was sustained, but his motion for a mistrial was denied. Instead, the court polled the jurors individually and was assured by each one that he could erase from his mind the reference to the revolver.

We cannot approve such misguided zeal on the part of the prosecution. There is not, and could not have been, the slightest doubt about the inadmissibility of the revolver, not only because it was the product of an obviously illegal search but also because it had nothing whatever to do with the offense being tried. We have recently held that the introduction in evidence of a pistol having no connection with the crime in question is reversible error. Rush v. State, 238 Ark. 149, 379 S. W. 2d 29 (1964).

In simple fairness to the accused the motion to suppress the evidence should have been heard before the trial began, out of the presence of the jury. That procedure is required by Rule 41 (e) of the Federal Rules of Criminal Procedure and has been approved by many state courts. United States v. Blalock, 253 F. Supp. 860 (1966); People v. Holmes, 47 Cal. Rptr. 246 (1965); Farrow v. Maryland, 233 Md. 526, 197 A. 2d 434; Stevens v. Oklahoma, Okl. Cr., 274 P. 2d 402 (1954); Hill v. Tennessee, 211 Tenn. 682, 367 S. W. 2d 460 (1963). Some of the reasons for hearing the motion before the trial were given in the Blalock case, supra:

“Rule 41 (e) ‘is designed to eliminate from the trial disputes over police conduct not immediately relevant to the question of guilt.’ Jones v. United States, 362 U. S. 257, 264, 80 S. Ct. 725, 732, 4 L. Ed. 2d 697, 78 A. L. R. 2d 233 (1960). The interruption of ‘the trial for such auxiliary inquiries impedes the momentum of the main proceeding and breaks the continuity of the jury’s attention.’ Nardone v. United States, 308 U. S. 338, 342, 60 S. Ct. 266, 268, 84 L. Ed. 307 (1939). A separate hearing also enables the defendant to testify on the collateral issue of suppression without waiving his privilege against self-incrimination on the merits of the charge or creating the possibility, if he were to testify on the suppression issue before the jury but stand mute on the merits of the charge, that the jury would draw the prohibited adverse inference from his conduct.”

We presume error to have been prejudicial in the absence of an affirmative showing to the contrary. Connelly v. State, 232 Ark. 297, 335 S. W. 2d 723 (1960). We are inclined to think that, on balance, the court’s polling of the jury tended to emphasize the error rather than to correct it. Only a very unusual and very conscientious juror would publicly confess himself to be so weak-minded as to be unable to obey the court’s admonition to disregard certain testimony. The sure way to avoid the possibility of prejudice is to exclude the incompetent evidence in the first place. If we should uphold the procedure that was followed in this case there is hardly any limit to the inadmissible testimony that might reach the jury’s ears.

Reversed.

Harris, C. J., and Fogleman, and Jones, JJ., dissents.