Osborne v. State , 237 Ark. 5 ( 1963 )

371 S.W.2d 518 (1963)

Carl R. OSBORNE, Appellant,
v.
STATE of Arkansas, Appellee.

No. 5068.

Supreme Court of Arkansas.

October 7, 1963. On Rehearing November 4, 1963.

Elton A. Rieves, III, West Memphis, for appellant.

Bruce Bennett, Atty. Gen., by Leslie Evitts, Asst. Atty. Gen., Little Rock, for appellee.

GEORGE ROSE SMITH, Justice.

The appellant was found guilty of forgery and uttering and was sentenced by the jury to ten years imprisonment upon each of the two counts. The court directed that the sentences be served consecutively.

There is no real issue about the sufficiency of the evidence. It was shown that the accused had used a forged check, purportedly drawn by a Louisiana lumber company, to buy clothing and liquor at a place of business in West Memphis. After Osborne left the store the proprietor became suspicious and succeeded in having Osborne arrested within an hour. Osborne confessed not only to this offense but also to a number of other forgeries committed in neighboring states.

That portion of the confession relating to the other offenses was objected to, but it was admissible. In a charge of forgery and uttering the State has the burden of proving guilty knowledge on the part of the accused, for it is not an offense for a person to pass a forged check in the belief that it is genuine. Upon the issue of guilty knowledge the fact that the defendant has uttered other forged checks is directly relevant. It tends to show that he knew the particular instrument in question to have been forged, since it is unlikely that an innocent person would come into possession of a number of bogus checks. Wilson v. State, 184 Ark. 119, 41 S.W.2d 764. Hence proof of the other forgeries was competent, and it makes no difference that the evidence was in the form of a confession rather than of testimony by third persons.

The State was allowed to show that on the day of the offense in question Osborne also passed a similar check in another West Memphis store, purchasing a pistol and making a down payment upon a shotgun. Counsel properly and candidly admits that such proof of a similar transaction was admissible, but it is argued that the jury may have been inflamed by the fact that Osborne used the check in the purchase of lethal weapons. This argument is without merit. The State, in showing a similar offense, was entitled to prove that the accused had received value for the forged instrument. That value happened to be in the form of firearms, but the record does not indicate that the witness referred to the weapons in other than a matter-of-fact way. Firearms are for sale throughout the state, for use in hunting, trapshooting, and other lawful pursuits. The State was properly permitted to prove all the details of what was actually a fairly commonplace transaction.

Counsel vigorously maintains that the punishment is so severe that it should be reduced by this court. It is true that in a number of the older cases, including one as recent as Carson v. State, 206 Ark. 80, 173 S.W.2d 122, we have assumed the power to mitigate the punishment imposed by the trial courts. The right to exercise clemency is, however, vested not in the courts but in the chief executive. Ark.Const. Art. 6, § 18. Our latest cases have uniformly followed the rule, which we think to be sound, that the sentence is to be fixed by the jury rather than by this court. If the testimony supports the conviction for the offense in question and if the sentence is within the limits set by the legislature, we are not at liberty to reduce it even though we may think it to be unduly harsh. Miller and Groffo v. State, 230 Ark. 352, 322 S.W.2d 685; McCall v. State, 230 Ark. 425, 323 S.W.2d 421.

It is contended that one of the court's instructions was not as specific as it might have been. We need not examine this contention in detail, for the only supporting assignment of error in the motion for a new trial is a blanket assertion that the jury were misinstructed. This was an assignment in gross, specifying no particular instruction as being incorrect. Inasmuch as a number of the instructions were unquestionably correct the assignment was insufficient to present any question for review. Black v. Hogsett, 145 Ark. 178, 224 S.W. 439; Armstrong v. State, 171 Ark. 1136, 287 S.W. 590.

Affirmed.

Supplemental Opinion on Rehearing

One assignment in the appellant's motion for a new trial was that "the jury was misinstructed by the court over defendant's objections." In our original opinion we held this assignment to be too general in its language to support a contention that a particular instruction was erroneous.

In a petition for rehearing counsel point out that there was only one objection to the instructions, that being a specific objection to Instruction No. 8. Hence, it is argued, the assignment of error—that the jury was misinstructed over the defendant's objections—could only have referred to Instruction No. 8, for no other part of the charge was given over the defendant's objections. We think this reasoning to be sound, and we accordingly consider the point upon its merits.

Instruction No. 8 was directed to the State's proof that the accused had passed other forged checks. The instruction told the jury that this proof would not justify a finding of guilty upon the two offenses that were being tried, but the proof might nevertheless be considered with respect to the matter of guilty knowledge or the existence of a common plan. In objecting to the instruction counsel specifically asked the court to tell the jury not to consider the other offenses in fixing any punishment that might be imposed. This request was denied.

We think the request should have been granted. Under our habitual criminal statute prior convictions may be a basis for increasing the punishment for the offense on trial, Ark.Stat.Ann. § 43-2328 (Supp. 1961), but in the absence of a conviction the jury ought not to consider some other offense as a reason for increased punishment. As we said in Alford v. State, 223 Ark. 330, 266 S.W.2d 804: "If the accused has committed other crimes, each may be examined separately in a court of law, and punishment may be imposed for those established with the required certainty." See also Ingram v. State, 39 Ala. 247.

There should be no doubt in the minds of the jurors about the purposes for which they may properly consider the proof of other offenses. "When proof of other crimes is admitted, the court must instruct the jury as to the limited purpose of its admission, and that they must confine its use to that purpose. The failure to so instruct the jury is reversible error if prejudicial." Wharton's Criminal Evidence (12th Ed.), § 248 (italics added). This is essentially the position we took in Norris v. State, 170 Ark. 484, 280 S.W. 398, for there the instruction that was approved not only explained the purpose of the proof of other offenses but went on to tell the jury that "you should consider such evidence for this purpose and for this purpose alone."

In the present case the court stopped short after telling the jury that the proof of other offenses would not justify a verdict of guilty but might be considered upon the issue of guilty knowledge and common plan. Thus the instruction told the jury not to consider the evidence for one purpose, allowed the jury to consider it for another purpose, and said nothing one way or the other with respect to a third purpose—the assessment of punishment. In this situation the jurors might very well have supposed that it was proper for them to take the other offenses into account in fixing the sentence; certainly there was nothing to prevent them from taking that view

An error is presumed to be prejudicial unless the contrary affirmatively appears. Crosby v. State, 154 Ark. 20, 241 S.W. 380. In view of the fact that here the jury imposed the maximum sentence of twenty years imprisonment for the forgery and uttering of a check for $87.63, for which restitution appears to have been made, we certainly cannot say that it affirmatively appears that the prior offenses were not taken into account in the assessment of the punishment.

When an erroneous ruling has nothing to do with the issue of guilt or innocence and relates only to the punishment, it may be corrected by reducing the sentence to the minimum provided by law. Webb v. State, 154 Ark. 67, 242 S.W. 380. Hence, unless the Attorney General files a request within seventeen days for the cause to be remanded for a new trial, the sentence upon each count will be reduced to the minimum of two years, Ark.Stat.Ann. § 41-1805 (1947), to be served consecutively, and as so modified the judgment will be affirmed.

The petition for rehearing is granted.

HARRIS, C. J., would deny the petition.