JOHNSON AND LOYD V. STATE

1086 [247
ALAN D. JOHNSON AND LOUISE M. LOYD V.
THE STATE OF ARKANSAS*
5453 449 S. W. 2d 954Opinion delivered February 2, 1970
[Rehearing denied March 9, 1970]
I. CRIMINAL LAW—PRELIMINARY PROCEEDINGS—DISCRETION OF' TRIAL
COURT.—Granting a motion for continuance or for severance in
felony trials less than capital is within the sound discretion of
the trial court and will not be reversed on appeal unless there
has been an abuse of discretion.
2. CRIMINAL LAW—APPEAL & ERROR—MOTION FOR CONTINUANCE, DEr.
NIAL OF.—Motion for continuance on ground that insufficient
time had been allowed for preparation of defense was properly
denied where there were no allegations that would show a need
for more time.
3. CRIMINAL LAW—APPEAL & ERROR—SEVERANCE, REFUSAL OF.—No
abuse of discretion was shown in trial court's refusal of sev-
erance in a case involving crime of robbery where no cross im-
plicating confessions were involved.
Appeal from Pope Circuit Court, Russell C. Rob-
erts, Judge ; affirmed.
Irwin, Streett & Braden, for appellants.
Joe Purcell, Attorney General ; Don Langston, Asst.
Atty. Gen., for appellee.
CARLETON HARRIS, Chief Justice. Appellants, Alan
D. Johnson and Louise M. Loyd were charged and con-
victed of the crime of Robbery, it being alleged that
they did by force rob the Pottsville office of the Peoples
Bank and Trust Company of $7,000.00. The jury fixed
the punishment of each at confinement in the state peni-
tentiary for a period of 15 years. From the judgment
so entered, appellants bring this appeal. For reversal,
two points are asserted, first, that the court should have
granted appellants' motion for continuance, and second,
that the court should have granted appellants' motion
for severance of the cases. We proceed to a discussion
of each point.
*P-1076 Ark. Adv. Sheets
ARK.] JOHNSON AND LOYD v. STATE 1087
The record reflects that the Information charg-
ing appellants with the crime was filed on June
26, 1969, and Ike Allen Laws, Jr., was appointed
to' represent appellants at arraignment. Subsequent-
ly, Laws moved that he be relieved from represent-
ing appellants for the reason that he was a stock-
holder in the Peoples Bank and Trust Company of
Russellville, and further, that his father was a mem-
ber of the Board of Directors. On July 12, the court
entered its order relieving Laws, and appointed anoth-
er attorney, Jim Young, to represent the defendants.
Thereafter, according to appellants' "statement of the
case," Young was relieved from the representation, and
the present attorneys, Irwin, Streett and Braden were
appointed on July 23. 1 The case had already been set
for trial for July 26 at 9 :00 A.M. On July 24, Mr. Braden
filed a motion for continuance, asserting that defense
counsel had not been notified of the appointment until
7 :00 P.M. on the night before; that Johnson was pres-
ently incarcerated at Cummings Prison, and counsel had
had no opportunity to talk with him. The motion was
denied. The court directed that Johnson be returned
from the penitentiary, and he was returned to Pope
County on July 25. On the next morning, attorneys for
appellants made the following motion":
" The defendants would move for a continuance due
to inadequate time in which to prepare a defense, that
Alan D. Johnson's first opportunity to speak to his at-
torney was approximately 4:00 o'clock Friday after-
noon ; and at this time we would also move the Court
to sever the two actions and give the defendants a sep-
arate trial, because their interests are adverse to each
other, and the same lawyers do not 2 represent each
of them."
i The content of this last sentence does not appear in the
record.
21t appears that the "do not" is a typographical error, as the
record does not reflect that appellants were represented by separate
counsel. Also, counsel, in arguing the point at Page 10 of appel-
lants' brief, state :
1088 JOHNSON AND LOYD v. STATE [247
We do not agree with appellants' first contention.
Of course, a motion for continuance is addressed to the
sound judicial discretion of the trial court, and a re-
versal of the trial court is only ordered where there is
an arbitrary abuse of that discretion. The motion for
continuance simply sets out that there has been an in-
sufficient time allowed for preparation of the defense.
The motion does not contain the names of any purport-
ed witnesses, let alone a statement or statements of what
such witnesses would testify to, or where they resided.
It will be recalled that appellants were charged with the
crime, and arrested on June 26, and the trial did not
occur until a month later. During this period of time,
attorneys had been appointed to represent appellants,
and the record reflects that Mr. Laws had already moved
to protect the rights of Johnson. 3 There is no showing
that the previously appointed attorneys had been con-
tacted to determine if an investigation had been made,
or to ascertain the results of any such investigation.
There being no allegation that would show a need for
more time, we are unable to say that the court arbitrar-
ily abused its discretion.
In discussing the second point, it is necessary that
the evidence be reviewed. Harold Edward Williams
testified that he was employed by the Peoples Bank
and Trust Company of Russellville, and was working
in the Pottsville branch on June 25, arriving at work
about 8:30 A.M. He said that shortly after 1 :00 P.M.
the door opened, and a man, followed by a woman, came
"In the case at bar, appellants in addition to being antag-
onistic towards each other, and having testimony if offered that
would conflict with the others were both represented by the same
appointed counsel. The fact that the same counsel represented both
appellants prevented any showing of the hostility. The only alterna-
tive was for both to decline to take the stand. This presented a
situation where the appellants when tried together were effectively
deprived of representation by counsel."
3Lieutenant Andy McKay testified that Johnson was arraigned,
and the court appointed an attorney, "and before he was returned
from the courtroom we were inatructed not to ask him any more
questions by his court appointed attorney."
ARK.] JOHNSON AND LOYD V. STATE 1089
into the bank, and stopped in front of the teller's win-
dow. The man said that they needed to see someone
about a loan, and when asked as to the type loan, was
told that money was needed to buy a farm. Williams
explained that he was only working at Pottsville on a
temporary basis, would not be able to make a loan of
that type, and it would be necessary that they go to the
bank at Russellville, and contact one of tbe loan officers.
The man asked for the names of persons to contact,
and when Williams reached for a note pad, both the
man and woman produced revolvers, and the man said,
"This is it. Do you understand?" The robber pulled the
hammer back on the revolver, handed Williams a blue
and white striped pillow case, and told the banker to
"fill this up." While this was being done, the robber
walked into the vault, looking for money. In placing tbe
currency in the bag, Williams inserted $500.00 in marked
bills, and having finished, turned to go into the vault.
The woman cocked the hammer on her pistol, pointed
it at him and said, "Hold it right there where you're
at." The man returned from the vault, asked if there
was an alarm system therein, and upon Williams' reply-
ing in the negative, told the banker to go into the vault.
The robber attempted to close the door without closing
the fire doors, and Williams, in testifying, said that the
door would not lock in such a manner. After waiting a
few moments, and hearing a vehicle start up outside,
Williams tried the door, could not get it open, but re-
membered there was an old church type bell above the
vault with a rope that came down through the ceiling.
A place in the cement ceiling had been chiseled out to
take care of the wadded rope and a plain piece of paper
had been attached to the ceiling, and painted so that it
could not be distinguished from the ceiling itself. Wil-
liams pulled the paper loose and rang the bell some six
or eight times until the bell turned upside down, and no
longer would ring. Within a few minutes, Williams was
discovered by a lady who operated the grocery store
across from the bank. According to a subsequent audit,
1090 JOHNSON AND LOYD V. STATE [247
$7,214.25 was taken in the robbery.' Appellants were
apparently arrested within a short period of time, and
were driven to the front of the bank. Williams went out-
side, saw the two persons in the car, and positively
identified them as the robbers.
Billy Baker, Corporal with the Arkansas State Po-
lice, testified that, on June 25, he was on duty and re-
ceived a communication about a pickup truck, and was
told to watch out for it. He had also been advised that
a bank robbery had occurred. Baker testified that he
saw the truck at the west edge of Atkins, driving east
on U. S. Highway 64; that he was driving west, but
turned around and gave pursuit, finally stopping the
truck after it had turned off onto Highway 105. The
occupants of the vehicle, the appellants, were placed un-
der arrest, and the officer made a search of the truck,
and inter alia, found a large amount of money in a blue
and white striped pillow case on the front seat. There
was $6,694.00 in the sack.
Officer Andy McKay testified that he interviewed
the two appellants and advised them of their constitu-
tional rights ; that Johnson indicated that he understood
his rights and signed a waiver, and upon being asked if
he had been involved in the commission of robbing the
bank at Pottsville, answered, "You caught us with the
goods. There is no sense in messing around, but before
I give an answer I wish to talk to an attorney." Sub-
sequently, however, he gave a voluntary statement as
to his participation, but the statement was interrupted
for arraignment purposes, and after the arraignment,
the attorney who had been appointed for appellants di-
r ected McKay not to talk with Johnson any further.
Joe W. Phillips, a special agent with the F. B. I.,
testified that he investigated the bank robbery, inter-
viewed Johnson, advising the latter of his constitution-
'Testimony at the trial revealed that the marked bills were
included.
ARK.] JOHNSON AND LOYD V. STATE 1091
al rights as set out on a printed form, which Johnson
signed. The agent testified that each item was explained
to Johnson ; that he was asked if he underitood these
rights, and he answered affirmatively. Appellant then
made a statement.' In testifying before the jury, McKay
stated that Johnson said, "You caught me with the
goods," instead of "us."
As to Mrs. Loyd, McKay stated:
"She denied knowledge of the bank robbery, didn't
wish to make a statement, made several verbal com-
ments she was nowhere around; and she stated it was
true she and this fellow had come up to this area. She
had got with a gentleman from Dardanelle, Arkansas;
that they had anticipated going fishing; they got to
drinking; and I believe her description was 'he got a
little too hairy' for her. in their consumption of alcohol,
and she decided to hitchhike home; and it was jUst
shortly before Trooper Baker had stopped them that Mr.
Johnson had picked her up hitchhiking; and she knew
nothing of the bank situation."
Neither appellant testified:
The question of whether a severance should or
should not be granted in felony trials less than capital
5 The statement was as follows: "I, Alan Douglas Johnson,
make the following free and voluntary statement to Joe W. Phillips,
who has identified himself as a special agent of the FBI and who
has explained to me each of my rights as named in the above
form, which I have signed.
"Shortly after 1:00 P.M., on Wednesday, June 25, 1969, I
robbed the bank in Pottsville, Arkansas. While I cased that bank
on the morning of June 25, 1969, prior to the robbery, I realized
it was a branch bank of the Peoples Bank and Trust Company of
Russellville, Arkansas. After I robbed the bank, I tried to lock the
teller in the bank vault. I locked the vault door partially, but I
did not get it locked all the way. I actually planned the robbery
Tuesday night 6/24/69 before I robbed the bank on 6/25/69.
"I arrived in Pottsville, Arkansas, on the morning of 6125/69
and drove by the bank a couple of times and cased it tlefore rob-
bing it that afternoon."
1092 JOHNSON AND LOYD v. STATE (247
is governed by the same rule that controlled appel-
lants' first point, i. e., the trial court will not be re-
versed unless there has been an abuse of discretion. Fin-
ley v. State, 233 Ark. 232, 343 S. W. 2d 787. We find no
abuse of discretion under the facts of this case. It will
be noted that the statement made by Johnson to the jury
did not in any manner implicate appellant Loyd. Appel-
lant Loyd's statement to McKay was a denial of any
participation in the crime ; accordingly, there were no
cross-implicating confessions as in Mosby and William-
son v. State, 246 Ark. 963, 440 S. W. 2d 230. This ap-
pellant obviously was primirily convicted upon the
testimony of the banker, whose evidence definitely con-
nected her as a principal. Mrs. Loyd, had she seen fit,
could have maintained her position on the witness
stand without fear of contradiction from Johnson, since
the court had already excluded any reference to her par-
ticipation.'
We find no prejudice to either appellant, because
of the court's refusal to grant a severance.
Affirmed.
6 0f course, had the cases been severed, and either appellant
had been willing to testify against the other, there was nothing
to prevent the Prosecuting Attorney from using that testimony.