Searcy v. State

431 S.W.2d 477, 245 Ark. 159, 1968 Ark. LEXIS 1174

• Court: Supreme Court of Arkansas
• Decided: September 16, 1968
• Docket: 5363
• Status: Published

Opinions

Lyle Brown, Justice.

Appellant David W. Searcy appeals from a conviction for grand larceny for allegedly stealing a triangle micrometer and three telescope gauges. For reversal appellant attacks the validity of a search warrant, the admission of stolen articles found in his possession which were in addition to the items described in the charge, and the voluntariness of a purported confession.

Pursuant to a search warrant, the premises of Searcy were searched and no stolen property was recovered. Following the search, Searcy was detained for investigation and taken to the county jail. Searcy advised the officers upon questioning that he had stored the property in his parents’ garage at an address other than his own. Searcy called his mother, directed her to unlock the garage, and proceeded with the officers to the parents’ home. In the garage the officers discovered the micrometer, gauges, and several other recently stolen items of personal property which Searcy admitted stealing. All items were placed in a box and taken to headquarters. The trial court permitted the introduction into evidence of the “other items” in the box. A written confession given on the night of detention was also admitted in evidence. The points relied upon for reversal will be italicized and discussed.

I. The court erred in failing to suppress the search warrant and the evidence acquired from the service of the search warrant.

The weakness in Point I rests with the fact that the search warrant is not involved in the case. No property was seized as a result of the search at the premises of appellant. The only property seized and introduced was the property which the officers found in the garage of appellant’s parents. A search warrant was obtained for the search of the parents’ premises.

II. The court erred in failing to suppress the confession of the defendant.

Officer Saxton testified that he gave Searcy the Miranda warnings when he first entered the suspect’s house with a search warrant. Shortly thereafter at headquarters, where the investigation continued, a radio operator typed out the warnings; they were read to the suspect and in turn he read them; thereupon he affixed his signature. All that procedure was prior to any questioning. Searcy admitted being given a part, but not all, of the Miranda warnings at his home. He also admitted signing the waiver prepared by the radio operator but denies knowing the contents. The trial court, after a full Denno hearing, ruled the signed confession admissible. We have evaluated the court’s findings and made an independent determination of the issue of voluntariness in accordance with the procedure explained in Harris v. State, 244 Ark. 314, 425 S.W. 2d 293 (1968). We do not disturb the trial court’s finding.

III. The coiwt erred in permitting the introduction of other goods allegedly stolen which were not incorporated in the charge.

When the garage was searched the officers found a hand drill and other tools which apparently had been taken from the prosecuting witness’ premises at Bentonville at the same time the micrometer and gauges were stolen. There was also a box of rifle .shells which was missing from the bus station in Rogers.- ■ The court permitted introduction of these “other items” with a cautionary instruction. The jury was told that the defendant was not being tried for theft of these “other items”; and that “they are not to be considered for any other purpose except as a circumstance to be considered in this case along with all the other evidence.” There was no objection to the particular form of the cautionary instruction.

As to the hand drill and other tools taken from the prosecuting witness simultaneously with the micrometer and telescopic gauges, we hold they were properly admissible. See Wilson v. State, 165 Ark. 148, 263 S.W. 390 (1924). In Lynch v. State, 95 Ark. 168, 128 S.W. 1053 (1910), defendant was charged with the theft of a diamond ring. The ring was stolen along with other items of jewelry. It was there held competent to show defendant had possession of the other jewelry.

Now as to the box of rifle shells reportedly missing from the bus station at Rogers. The general and majority rule is that evidence of the possession of stolen property other than that involved in, or connected with, the charged larceny, is not admissible in the state’s case in chief. 32 Am. Jur., Larceny, § 134; 22 A CJS, Criminal Law, § 691(9)b. We can perceive no connection, even remote, between the larceny at the bus station and the larceny for which the defendant was being tried. Of course, if there was some relation between the two thefts, the shells might well have been admissible, otherwise not. Alford v. State, 223 Ark. 330, 266 S.W. 2d 804 (1954). The facts here are essentially the same as in the case of Yelvington v. State, 169 Ark. 359, 275 S.W. 701 (1925). It was shown that Yelvington was in possession of the mules which formed the basis of the charge. A state witness testified that he also saw in appellant’s possession some sets of harness which were shown to have been stolen from still another party. The theft of the harness occurred at a different time and place, having no connection with the theft of the mules. Admission of the testimony relative to the theft of the harness caused a reversal.

Reversed and remanded.

Fogleman, J., dissents.