Opinion
Rehearing Denied Feb. 14, 1977.
Kenneth C. Coffelt, Little Rock, for appellants.
Jim Guy Tucker, Atty. Gen., by Jackson Jones, Asst. Atty. Gen., Little Rock, for appellee.
HARRIS, Chief Justice.
Appellants, Curtis Lee Dickerson and Earnest Earl Dickerson, brothers, were charged with the robbery of Johnny D. Rush, Jr., and Robert Foley, Jr., by use of a firearm, and on trial, the jury fixed the punishment of Curtis Dickerson at 11 years imprisonment, with an additional 8 years for the use of a firearm in the commission of a felony, and the punishment of Earnest Dickerson, who also was found guilty as an habitual criminal, was set at 13 years imprisonment for the robbery, with an additional 8 years for the use of a firearm in the commission of a felony. From the judgment entered in accordance with the verdict, appellants bring this appeal. For reversal, 7 points are urged, which we proceed to discuss in the order listed. It is first asserted that the verdicts were contrary to the law and evidence, i.e., there was no substantial evidence to support the convictions. The proof reflects that appellants and several others were involved in a game of dice on the evening of October 3, 1975, at White's Barber Shop around 7:00 p.m. The game was being operated by Ernest Jones. Both brothers lost money in the game, left, and returned a short time later, Curtis with a .38 pistol and Earnest carrying a shotgun. The testimony is in conflict, but it appears that Curtis first returned and about 15 minutes later Earnest came in. According to Robert Foley, one of the participants in the 'crap' game, Earnest, upon entering with his shotgun, told everybody to stand up beside the wall and drop their money on the floor. This command was obeyed by everyone except one person who 'went out the window.' Foley stated that Curtis (whom he described as the 'tall one') then put the pistol up to the side of his (Foley's) head. Foley threw the money that he had in his pocket on the floor and the others, 6 or 8 persons, likewise threw their money on the floor.
Johnny Rush testified that he threw his wallet on the floor, which contained about $94.00 and his testimony was much like that of Foley except that he denied there was any 'crap' game.
Curtis Dickerson stated that he and his brother went back to get the money that they had lost, $75.00, because of crooked dice; that there was money on the floor but not as much as they had lost, and he told Jones that he wanted all of his (Curtis') money. According to Curtis, Jones then threw the rest of the money on the floor and appellants, picking it up, left. Following the arrest, a statement was given by Curtis and this was admitted without objection at the trial, the statement containing the following sentence: 'Earnest had the shotgun and he told everyone there to put the money on the floor and they did.' This statement very clearly indicated that appellants took money from persons other than Jones. Appellants argue that the evidence reflects that Rush and Foley cannot be believed, but their testimony was 'not inherently improbable so that it must be rejected as a matter of law.' Upton v. State, 257 Ark. 424, 516 S.W.2d 904, nor was their testimony 'so clearly unbelievable that reasonable minds could not differ thereon.' Barnes v. State, 258 Ark. 565, 528 S.W.2d 370. Accordingly, the weight accorded to the evidence of these witnesses was strictly within the province of the jury, and the evidence was sufficient to support the conviction.
It is next asserted that the trial court erred by proceeding with the trial in the absence of certain defense witnesses. Again, we find no merit. Ernest Jones, who allegedly operated the dice game, was subpoenaed by the defense on January 26, 1976, two days before the trial date. Of course, there was no compliance with Ark.Stat.Ann. 28-510 (Repl.1962) which provides, that, in civil cases, a witness is obliged to attend when he or she is served with a subpoena at least three days prior to the trial of said cause * * *, and Ark.Stat.Ann. 43-2004 (Repl.1964) makes the aforementioned section applicable to witnesses in criminal cases. The return of the deputy sheriff reflected that Jones could not be found. No reason was given by appellants why the witness was not subpoenaed earlier, other than 'Well, that is enough (time) for a witness here in Little Rock.' No affidavit was filed to reflect what Jones would testify to, nor was any showing made as to the materiality of the anticipated testimony, nor to diligence on the part of appellant in subpoenaing or locating the witness. We have consistently held that the matter of granting or denying a continuance due to the absence of a witness in a criminal case is within the sound judicial discretion of the trial court and we will not disturb that action on appeal except in case of abuse. We certainly find no abuse in the case before us. See Thacker v. State, 253 Ark. 864, 489 S.W.2d 500.
It is alleged that the court erred in denying appellants' counsel the right of proper examination of trial jurors. It is contended by appellants that counsel 'had 'THE COURT: Let me ask the jury, the remaining jurors as a whole: Have you been on a criminal case, other than in this Court this term? Have any of you ever sat on a criminal case at any time other than in this Court this term? (Pause) I take by your silence that you have not. Mr. Coffelt, as far as your question, have they ever tried a case with facts similar to this, they have not. Okay, you may exercise your challenges.
MR. COFFELT: How's that now, your Honor?
THE COURT: None of them have tried a case with facts like this, because we haven't had one this year.
MR. COFFELT: I didn't ask them this year, ever.
THE COURT: They've never sat on a criminal case ever, except in this term of Court.
MR. COFFELT: I didn't understand it. Is the Court right about that, that you've never tried any kind of a criminal case under any circumstances. Is that right? None of the jury? Very well.'
Apparently, counsel for appellants was satisfied.
Points 4 and 5 are argued together, it being contended that the verdicts and judgments are illegal in that appellants were twice placed in jeopardy and convicted for the same offense at the same trial, it being asserted that the lesser offense merged into the greater as a matter of law. We do not agree. This is an attack on the enhancement statute, Ark.Stat.Ann. 43-2336 (Supp.1975), which provides that any person convicted of any offense which is a felony, and who employed a firearm of any character as a means of committing or escaping from such felony, may be subjected to an additional period of confinement for a period not to exceed 15 years. This same contention of double jeopardy by virtue of the use of a firearm was raised in Barnes v. State, 258 Ark. 565, 528 S.W.2d 370, thoroughly discussed, and found to be without merit.
It is also urged that 'the trial court erred in denying the request of defendants' counsel that the court instruct the jury that they should not (dis) regard the testimony in the case about the crap game.'
The basis of this argument is an assertion that the prosecuting attorney told the jury, during his closing argument, that they should disregard the evidence about a 'crap game.' The record does not bear out this contention; rather, the transcript reflects that the remarks of the prosecutor were as follows:
'Ladies and gentlemen of the jury, you all know, I'm sure, that when you are considering whether or not to bring back a verdict of guilty that you take into consideration testimony given from that witness stand and nothing else and from those witnesses who have testified from that witness stand and nothing else. The comments that I make or comments that Mr. Coffelt makes are not evidence but just argument. Now, you must sort out all the evidence about a crap game, who was running the crap game, et cetera.'
Counsel for appellant immediately objected, stating the jury had been told that they must disregard all the evidence with reference to the game, but, as shown, no such statement was made. The state's attorney only said that the jury 'must sort out' the evidence. The verb 'sort' is defined, inter alia, as 'put in order,' 'analyze,' 'assort,' or 'methodize.' Of course, this is a far cry from 'disregard.'
Finally, it is contended that the sentences are excessive, but this point likewise is without merit. We have held numerous times that it is within the power of the General Assembly to classify crimes and Stout v. State,
Carter and Burkhead v. State,Finding no reversible error, the judgments are affirmed.
IT IS SO ORDERED.
We agree. FOGLEMAN, BYRD, HOLT and ROY, JJ.