Ricarte v. State

by the Arkansas Supreme Court

Supreme Court of Arkansas

290 Ark. 100

Louis RICARTE, Jr., a/k/a Louis VALDEZ, a/k/a Alexander VALDEZ  v.  STATE of Arkansas

Appeal from Washington Circuit Court

No. CR 86-31. --- Delivered: October 13, 1986. 

1. Legislature—continuing legislature in session after regular session has ended unconstitutional.—The practice of continuing the legislature in session after its regular 60-day session has ended is not permitted by the Arkansas Constitution.
2. Evidence—Uniform Rules of Evidence adopted at invalid session—earlier statute on subject not repealed.—Where, at the time the Uniform Rules of Evidence were adopted by the legislature, the legislature was unlawfully in session in January, 1976, almost a year after the 1975 regular session had ended, the Uniform Rules were not adopted at a valid session and did not become law; hence, the earlier statute on the subject, Act 14, Ark. Acts of 1943, was not affected by the repealing clause in the Uniform Rules.
3. Evidence—under Act 14 of 1943, one spouse cannot be called to testify against the other in a criminal case—no exceptions.—Act 14, Ark. Acts of 1943, which provides that in a criminal case one spouse cannot be called by the opposite party as a witness against the other spouse, makes no exception for a marriage that was or may have been entered into for the purpose of shielding one spouse from the testimony of the other.
4. Evidence—Uniform Rules of Evidence Adopted by Arkansas Supreme Court, effective October 13, 1986.—Under the Arkansas Supreme Court's own rule-making power and under existing statutory authority, the Supreme Court adopts the Uniform Rules of Evidence as the law in Arkansas, effective October 13, 1986.
5. COURTS—ARKANSAS SUPREME COURT HAS GENERAL SUPERINTENDING CONTROL OVER ALL INFERIOR COURTS UNDER ARKANSAS CONSTITUTION.—The Arkansas Constitution of 1874 confers upon the Supreme Court a general superintending control over all inferior courts of law and equity. [Ark. Const., art. 7, § 4.]
6. COURTS—SUPREME COURT'S INHERENT POWER TO REGULATE CIVIL AND CRIMINAL PROCEDURE RECOGNIZED BY LEGISLATURE.—The Arkansas legislature's use of mandatory words in committing the regulation of criminal practice and procedure and civil procedure to the Supreme Court in Ark. Stat. Ann. §§ 22-242 and 22-245 (Supp. 1985) was not an improper delegation of legislative power but was merely a recognition of the court's inherent power.
7. EVIDENCE—ADMISSION OF TESTIMONY OF WIFE OF CRIMINAL DEFENDANT GROUNDS FOR MISTRIAL—RULE UNDER WHICH IT WAS ADMITTED NOT LEGALLY ADOPTED.—Where, as here, the invalidity of the statute adopting the Uniform Rules of Evidence, under which the wife of a criminal defendant was allowed to testify for the State, was properly raised and this court finds the statute to have been illegally adopted, the defendant is entitled to a new trial; further, his right to claim the statutory privilege must in fairness be recognized at a new trial.
8. EVIDENCE—EVIDENCE OF INCARCERATION—RELEVANCY.—The evidence that appellant had been in the penitentiary was relevant because the plan for the robbery for which he was tried was conceived by inmates who were in the penitentiary with him.
9. TRIAL—PROSECUTOR'S OPENING STATEMENT—PROPRIETY.—Since the fact of appellant's incarceration was admissible and was proved, the prosecutor was entitled to refer to it in his opening statement.
10. WITNESSES—NO PROOF THAT THEY WERE ACCOMPLICES.—Where there was no proof that either of the witnesses who were claimed to have been accomplices participated in the robbery, but, to the contrary, neither of them knew about the robbery at the time it was committed, or knew where the jewelry taken in the robbery came from, they were not shown to be accomplices as a matter of law, their status being at most an issue for the jury.
11. JURY INSTRUCTIONS—INSTRUCTIONS CONCERNING PREVIOUS CONVICTIONS PROPER UNDER CIRCUMSTANCES.—It is proper for the judge to instruct the jury concerning the number of previous convictions which the defendant has where the number is not in dispute; however, where it is in dispute, the issue may be submitted to the jury by the use of AMCI 7001.
12. CRIMINAL PROCEDURE—SENTENCING—PRE-SENTENCE REPORT TO JURY NOT REQUIRED.—The statutes do not contemplate that a presentence report be obtained and given to the jury when the issue of punishment is submitted.

Appeal from Washington Circuit Court; Mahlon G. Gibson, Judge; reversed.

Wright & Hamilton, by: Fielding Wright; and Martin, Vater & Karr, by: Charles Karr, for appellant.

Steve Clark, Att'y Gen., by: Clint Miller, Asst. Att'y Gen., for appellee.

[Opinion of the court by Justice GEORGE ROSE SMITH. Justice STEELE HAYS dissented without opinion.]