{
  "id": 8717335,
  "name": "Danny Ray McDONALD v. STATE of Arkansas",
  "name_abbreviation": "McDonald v. State",
  "decision_date": "1979-06-18",
  "docket_number": "CR 79-52",
  "first_page": "56",
  "last_page": "59",
  "citations": [
    {
      "type": "official",
      "cite": "266 Ark. 56"
    },
    {
      "type": "parallel",
      "cite": "582 S.W.2d 272"
    }
  ],
  "court": {
    "name_abbreviation": "Ark.",
    "id": 8808,
    "name": "Arkansas Supreme Court"
  },
  "jurisdiction": {
    "id": 34,
    "name_long": "Arkansas",
    "name": "Ark."
  },
  "cites_to": [],
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  "last_updated": "2023-07-14T22:44:50.628261+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "Danny Ray McDONALD v. STATE of Arkansas"
    ],
    "opinions": [
      {
        "text": "Conley Byrd, Justice.\nAppellant Danny Ray McDonald was charged with aggravated robbery in violation of Ark. Stat. Ann. \u00a7 41-2102 (Repl. 1977) and with being a habitual offender, Ark. Stat. Ann. \u00a7 41-1001 (Repl. 1977). The jury found him guilty as charged and fixed his punishment at imprisonment for 16 years and 2 months and a fine of $6,080. For reversal he raises the issues hereinafter discussed.\nThe proof on the part of the State, stated in the light most favorable to the jury\u2019s verdict, shows that appellant took $80 from the office area of Gene\u2019s Family Market. Eddie Caraway, an employee in the store, gave chase until appellant pulled a knife from his back pocket. Other witnesses, including a friend and an accomplice, furnished direct and circumstantial evidence identifying appellant as the person who fled from the pursuit of Caraway.\nWith respect to the offense of aggravated robbery, Ark. Stat. Ann. \u00a7 41-2102 (Repl. 1977) provides:\n\u201c(1) A person commits aggravated robbery if he commits robbery as defined in section 2103 [Ark. Stat. Ann. \u00a7 41-2103 (Repl. 1977)] and he:\n(a) is armed with a deadly weapon, or represents by word or conduct that he is so armed, . . .\nArk. Stat. Ann. \u00a7 41-2103 (Repl. 1977) provides:\n(1) A person commits robbery if with the purpose of committing a theft or resisting apprehension immediately thereafter, he employs or threatenss to employ physical force upon another.\u201d\nUnder the proof presented, we must hold that the evidence is sufficient to sustain the jury\u2019s finding that appellant was guilty of aggravated robbery.\nWe can find no merit in his contention that he was entitled to have the jury instructed on theft pursuant to Ark. Stat. Ann. \u00a7 41-2203 (Repl. 1977). Under Ark. Stat. Ann. \u00a7 41-2203, supra, \u201ca person commits theft of property if he knowingly takes or exercises unauthorized control over . . . the property of another.\u201d However, to prove robbery the State only has to show that there was an intent to commit a theft. Consequently, the offense of theft of property is not a lesser included offense in a charge of the crime of burglary. See Ark. Stat. Ann. \u00a7 41-105(2) (Repl. 1977).\nAppellant is correct in his contention that the trial court erred in submitting the issue of a habitual offender, Ark. Stat. Ann. \u00a7 41-1001 (Repl. 1977), to the jury. That statute comes into play only upon a showing of \u201cmore than one\u201d previous conviction of a felony. The State\u2019s proof here only showed one prior felony conviction. The State, in its brief here, acknowledges the error but contends that the error only goes to the years of imprisonment and not to the fine. With the contention as to the fine, we cannot agree because without the habitual offender charge, the State would not have been in position to show a previous conviction for purposes of enhancing either the punishment or the fine.\nAccordingly, the error can be cured by reducing appellant\u2019s punishment to the minimum of 5 years imprisonment pursuant to Ark. Stat. Arm. \u00a7 41-901 (l)(a) (Repi. 1977). The judgment will be so modified and affirmed unless the State before the issuance of the mandate files an election to retry appellant.\nModified and affirmed.",
        "type": "majority",
        "author": "Conley Byrd, Justice."
      }
    ],
    "attorneys": [
      "Appellant, pro se.",
      "Steve Clark, Atty. Gen., by: Ray Hartenstein, Asst. Atty. Gen., for appellee."
    ],
    "corrections": "",
    "head_matter": "Danny Ray McDONALD v. STATE of Arkansas\nCR 79-52\n582 S.W. 2d 272\nOpinion delivered June 18, 1979\n(In Banc)\nAppellant, pro se.\nSteve Clark, Atty. Gen., by: Ray Hartenstein, Asst. Atty. Gen., for appellee."
  },
  "file_name": "0056-01",
  "first_page_order": 82,
  "last_page_order": 85
}