{ "id": 1467127, "name": "Cascio v. State", "name_abbreviation": "Cascio v. State", "decision_date": "1948-05-03", "docket_number": "4487", "first_page": "418", "last_page": "424", "citations": [ { "type": "official", "cite": "213 Ark. 418" }, { "type": "parallel", "cite": "210 S.W.2d 897" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "158 S. W. 2d 471", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "203 Ark. 640", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1447085 ], "opinion_index": 0, "case_paths": [ "/ark/203/0640-01" ] }, { "cite": "97 S. W. 2d 900", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "193 Ark. 46", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1411105 ], "opinion_index": 0, "case_paths": [ "/ark/193/0046-01" ] }, { "cite": "1 S. W. 2d 46", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "175 Ark. 1170", "category": "reporters:state", "reporter": "Ark.", "opinion_index": 0 }, { "cite": "258 S. W. 348", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "162 Ark. 340", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1385514 ], "opinion_index": 0, "case_paths": [ "/ark/162/0340-01" ] }, { "cite": "212 S. W. 319", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "138 Ark 517", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1566986 ], "opinion_index": 0, "case_paths": [ "/ark/138/0517-01" ] }, { "cite": "190 S. W. 441", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "126 Ark. 354", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1551722 ], "opinion_index": 0, "case_paths": [ "/ark/126/0354-01" ] }, { "cite": "198 S. W. 2d 996", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1473194 ], "opinion_index": 0, "case_paths": [ "/ark/211/0039-01" ] }, { "cite": "240 S. W. 1079", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "153 Ark. 348", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1362246 ], "opinion_index": 0, "case_paths": [ "/ark/153/0348-01" ] }, { "cite": "265 S. W. 974", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "166 Ark. 290", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1378539 ], "opinion_index": 0, "case_paths": [ "/ark/166/0290-01" ] }, { "cite": "68 S. W. 28", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "70 Ark. 337", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1509495 ], "opinion_index": 0, "case_paths": [ "/ark/70/0337-01" ] }, { "cite": "88 S. W. 2d 851", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "191 Ark. 903", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1418415 ], "opinion_index": 0, "case_paths": [ "/ark/191/0903-01" ] }, { "cite": "111 S. W. 2d 527", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "195 Ark. 67", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8718360 ], "opinion_index": 0, "case_paths": [ "/ark/195/0067-01" ] }, { "cite": "110 S. W. 2d 24", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "194 Ark. 1041", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8725926 ], "opinion_index": 0, "case_paths": [ "/ark/194/1041-01" ] }, { "cite": "108 S. W. 2d 904", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "194 Ark. 513", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8722326 ], "opinion_index": 0, "case_paths": [ "/ark/194/0513-01" ] }, { "cite": "109 S. W. 2d 131", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "194 Ark. 503", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8722274 ], "opinion_index": 0, "case_paths": [ "/ark/194/0503-01" ] }, { "cite": "296 S. W. 63", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "174 Ark. 733", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8724309 ], "opinion_index": 0, "case_paths": [ "/ark/174/0733-01" ] } ], "analysis": { "cardinality": 592, "char_count": 9494, "ocr_confidence": 0.516, "pagerank": { "raw": 3.2118859593730105e-07, "percentile": 0.8665474319159148 }, "sha256": "0d1ed1e66892d5dd499fac6e3297b8776efb65a5473d197a00f41872c1337bd2", "simhash": "1:775f6565698b54f2", "word_count": 1615 }, "last_updated": "2023-07-14T14:58:24.264428+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Cascio v. State." ], "opinions": [ { "text": "Robins, J.\nAppellant was charged in an information filed by the Prosecuting Attorney with violating the statute (\u00a7 3063, Pope\u2019s Digest) which forbids possessing or having in one\u2019s custody tools designed for burglary. A trial jury found him guilty and fixed his punishment at imprisonment in the penitentiary for three years. From judgment on the verdict this appeal is prosecuted.\nThese assignments of error are argued here:\nI. That the motion to quash the information should have been sustained.\nII. That the court should, on account of insufficiency of evidence against appellant, have directed a verdict of \u2018 \u2018 not guilty. \u2019 \u2019\nIII. That the lower court erred in refusing to permit appellant to challenge peremptorily two jurors previously accepted.\nIY. That a coat owned by a man named Strong was improperly admitted in evidence.\nV. That error was committed by the lower court in giving and refusing certain instructions.\nVI. That the lower court erred in allowing the Prosecuting Attorney to make certain statements in his argument to the jury.\nI.\nIn the information it was charged that appellant and Strong \u201cdid unlawfully and feloniously have in their possession and custody certain tools, punches, pliers, chisels, flashlights, jimmies, implements and mechanical devices adapted, designed and commonly used for breaking into vaults, safes, railroad cars, boats, vessels, warehouses, stores, shops, offices, dwelling houses, door shutters and windows of buildings, . . . \u201d\nThis information was in substantially the language of the statute and was sufficient. Satterfield v. State, 174 Ark. 733, 296 S. W. 63. The fact that some or all of the enumerated articles were such as might be kept for a lawful purpose did not render the information invalid. \u2018 \u2018 Generally speaking it is not necessary that the tools or implements were originally made or intended for an unlawful use. If they are suitable for the purpose of breaking and entering burglariously, it is wholly immaterial that the3\u00a1r were also designed and adapted for honest and lawful uses.\u201d 9 Am. Jur. 282.\nAppellant urges that constitutional amendment No. 21, authorizing prosecution of crimes by information, is contrary to the constitution of the United States. We considered this question in the case of Penton v. State, 194 Ark. 503, 109 S. W. 2d 131, and there upheld the validity of this amendment. Other cases in which the same ruling was made are: Deatherage v. State, 194 Ark. 513, 108 S. W. 2d 904; Smith and Parker v. State, 194 Ark. 1041, 110 S. W. 2d 24; and Brockelhurst v. State, 195 Ark. 67, 111 S. W. 2d 527. We find no reason to overrule our previous decisions.\nII.\nThe gist of appellant\u2019s contention as to the insufficienc3^ of the evidence is that the articles named in the information and found in his possession were such as any citizen might lawfulty have.\nThe evidence disclosed that about 3:30 in the morning* a policeman discovered two men standing in' front of a store on Main Street in Little Rock. Hearing a noise, the policeman started toward the store and then discovered three men running away from there. The policeman ordered them to halt and fired his pistol in the air, hut they continued running. A few minutes later he found one of the men, Strong, hiding under the steps in the rear of a nearby building. Other police were summoned and it was found that the front door of the store had been \u201cjimmied\u201d open. Two \u201cjimmy bars\u201d and a pair of woolen gloves were found in the vicinity.\nAbout daylight appellant was found by officers. His shirt was wet with perspiration and when approached by officers he gave an unsatisfactory explanation of his presence in Little Rock. When arrested he had on his person title papers to a 1946 Mercury automobile. This car was found parked at Thirteenth and Louisiana Streets, a distance of about two blocks from the store where the burglary was committed.\nIt is argued by appellant that there was no proof as to the distance intervening between Thirteenth and Louisiana Streets and the burglarized store at Twelfth and Main Streets. But this was a matter of which the lower court might properly take judicial knowledge, and which was probably well known to every member of the jury. \u201cCourts sitting in a city judicially notice the streets, squares, and public grounds thereof, their location, and relation to one another, . . . .\u201d 20 Am. Jur. 78.\nThe police discovered appellant\u2019s coat and Strong\u2019s coat in the Mercury car. Appellant admitted to. one of the officers that he owned the automobile and asked that he be permitted to have his glasses which had been taken therefrom. In the cardboard box where appellant\u2019s glasses were located some of the alleged burglar\u2019s tools were found. When one of the officers showed appellant these tools and told him he would be charged with possessing burglary tools appellant replied: \u2018 \u2018 That is not a complete set of burglary tools.\u201d '\nOfficers experienced in police work testified that the tools found in appellant\u2019s car were useful as tools, for burglary. One of these witnesses testified that the collection of tools taken from appellant\u2019s car was \u201cthe customary assortment . . . that most burglars have to carry out their work. \u2019 \u2019\nThe testimony was sufficient to authorize the juryV finding that the tools in question were such as those described in the statute, the possession of which was made unlawful. Prather v. State, 191 Ark. 903, 88 S. W. 2d 851.\nIII.\nAfter certain jurors had been examined and accepted by both sides, and after the state had exhausted its peremptory challenges, appellant sought to challenge peremptorily two of the jurors theretofore accepted by each side. No reason for challenging these jurors was assigned by appellant. Under the circumstances, there was no abuse of discretion on the part of the lower court in denying appellant\u2019s request. Allen v. State, 70 Ark. 337, 68 S. W. 28; Jones v. State, 166 Ark. 290, 265 S. W. 974; Brust v. State, 153 Ark. 348, 240 S. W. 1079.\nIV.\nBoth appellant and Strong were charged with the offense in the same information; but appellant was granted a severance by the court on its own motion: Appellant urges that, since Strong was not on trial, it was error to permit the state to introduce Strong\u2019s coat-in evidence and to prove that it was found in appellant\u2019s car. We cannot agree. The jury was called upon to determine whether the collection of tools found in appellant\u2019s car was a set of burglar\u2019s tools or were tools lawfully kept. In arriving at a determination of this question it was proper to submit to the jury any evidence showing the use that was being made of appellant\u2019s car, where the tools were found, on the occasion of the burglary. Strong was shown to be one of the men who ran away from the door of the store after it had been broken open; and the fact that his coat was in appellant\u2019s car near by the scene of the crime was a proper circumstance to be considered by the jury in ascertaining whether the tools, found in the same car, were in fact tools for burglary;\nV.\nAppellant argues that error was committed by the^ lower court imthe giving and refusing of certain instructions. We deepi it unnecessary to set these instructions out at length. AYe have carefully examined the record and find that the instructions given by the court properly presented to the jury the law applicable.\nVI.\nThe argument of the Prosecuting Attorney, complained of by appellant as improper, was this:\n(1) . The Prosecuting Attorney, referring to Strong\u2019s coat which the officers found in appellant\u2019s car, said: \u201cWhat explanation have they made of that?\u201d Appellant contends that this argument was a comment on appellant\u2019s' failure to testify. We conclude that this remark is not fairly susceptible of the meaning attributed to it by appellant.\n(2) . The Prosecuting Attorney said: \u2018 \u2018 Where is the other man? Nick Cascio knows where he is and who he is, and if we knew we would have him here in short order.\u201d While this argument might have been somewhat irrelevant, yet, in view of the state\u2019s evidence, indicating that appellant, Strong and a third man were jointly engaged in a criminal enterprise, the argument was not prejudicial to appellant.\n(3) . In referring to appellant, the Prosecuting Attorney said: \u201cHe is a professional thug and came here to commit the crime of burglary.\u201d If the testimony of witnesses for the state is credible then the statement of the Prosecuting Attorney was true. Ingle v. State, 198 S. W. 2d 996. However, when objection to this argument was made the court told the jury not to consider it.\n(4). Finally, the Prosecuting Attorney said: \u201cIf you want to invite and encourage out of the city thugs to come into this place . . .\u201d Objection to this argument was also sustained by the court.\nNecessarily, a broad discretion in controlling argument of attorneys is given to trial judges. Wilson v. State, 126 Ark. 354, 190 S. W. 441; Walker v. State, 138 Ark 517, 212 S. W. 319; Rosslot v. State, 162 Ark. 340, 258 S. W. 348; Kelley v. State, 175 Ark. 1170, 1 S. W. 2d 46; Hicks v. State, 193 Ark. 46, 97 S. W. 2d 900; Holcomb v. State, 203 Ark. 640, 158 S. W. 2d 471. We find no abuse of such discretion in this case.\nThe judgment' is affirmed.", "type": "majority", "author": "Robins, J." } ], "attorneys": [ "Will Shepherd, Kenneth G. Goffelt and Ed F. McDonald, for appellant.", "Guy E. Williams, Attorney General, and Oscar E. Ellis, Assistant Attorney General, for appellee." ], "corrections": "", "head_matter": "Cascio v. State.\n4487\n210 S. W. 2d 897\nOpinion delivered May 3, 1948.\nRehearing denied May 31, 1948.\nWill Shepherd, Kenneth G. Goffelt and Ed F. McDonald, for appellant.\nGuy E. Williams, Attorney General, and Oscar E. Ellis, Assistant Attorney General, for appellee." }, "file_name": "0418-01", "first_page_order": 434, "last_page_order": 440 }