Bennett v. State

¶1concurring. I do not agree that the legislature provided imprisonment up to 15 years and a fine of not more than $25,000 for a misdemeanor. I think the offense charged was a felony.

¶2My reading of Rector1 does not say the same thing to me it apparently does to the majority. To me is says • -in common usage, the word ‘crime’ is made to denote such offenses as are of a deeper or more atrocious dye, while smaller faults, and omissions of less consequence are comprised under the gentler name of misdemeanors only.” As I read it, this means that “crime,” in common usage, means something different from smaller offenses called misdemeanors.

¶3Furthermore, the word crime is commonly used in our statutes to refer to felonies, so the words crime and misdemeanor cannot be taken to be synonymous. Such statutes include Ark. Stat. Ann. §§ 41-108 (Repl. 1964), providing for the defense of insanity in case of crime or misdemeanor, 41-109, making idiots incapable of crime or misdemeanor, 41-110, preventing trial of an insane person for crime or misdemeanor, 41-114, protecting a married woman from conviction of crime or misdemean- or when acting under coercion of her husband, 41-115, relating to drunkenness as an excuse of crime or misdemeanor, 41-117, protecting others who commit crimes or misdemeanors, 41-119, defining an accessory to a crime and 41-120, defining an accessory after the fact to a crime. In application of each of these statutes, we have always considered the word “crime” to mean a felony, not a misdemeanor. The difference recognized is best demonstrated by the cases decided before the adoption of Ark. Stat. Ann. § 41-118, abolishing the distinction between principals and accessories before the fact and permitting those charged as principals to be found guilty as accessories after the fact. In those cases, the statutes were applied to felonies but not to misdemeanors. See Strong v. State, 88 Ark. 240, 114 S.W. 239, 22 L.R.A. (n.s.) 560; Burrow v. City of Hot Springs, 85 Ark. 396, 108 S.W. 823; Foster v. State, 45 Ark. 361; Freel v. State, 21 Ark. 212.

¶4In spite of the statutes, this court followed the common law rule relating to accessories, which it could not well have done if the word “crime” in the above statutes had encompassed misdemeanors. It should be noted that whenever the statutes are to apply to all public offenses, the words “crime or misdemeanor” are utilized.

¶5None of our cases, relating to penal statutes where the place of imprisonment is not stated or where the designated place characterizes the offense, involves a situation in which the lawmakers have declared the prohibited act to be a felony. I submit that the usual and proper construction of the word crime denotes a felony unless the context in which it is used indicates otherwise. It is dear that the General Assembly recognized the distinction. In Art. II, § 2 (c) of Act 590 of 1971 the unlawful possession of a controlled substance is declared to be a misdemeanor unless the offense is a third or subsequent one. This is a clear indication that the word “crime” in the context of this act means felony.

¶6My construction of the act in this respect is borne out by the comments of the draftsmen of the Uniform Controlled Substances Act, adopted by Act 590 as indicated in the title of the act and its emergency clause. They had this to say about subsection (c):

Subsection (c) has been drafted specifically to provide for a lesser penalty for simple possession than is provided for the trafficking and illicit manufacturing type offenses under subsections (a) and (b). It is contemplated that subsections (a) and (b) will contain harsh penalties (felony, high misdemeanor, etc.); subsection (c) provides for misdemeanor (or comparable State term) treatment for the simple possession charge.

¶7The amendatory Act of 1972 does not seem to me to have the significance attributed to it by the majority. It seems to me to confirm my construction of the act. The General Assembly recognized that there was confusion regarding the application and effect of Act 590 and that there was a need for “clarification” of the penalties. I do not see how this can be taken to mean that the legislative intent had changed in any respect.

¶8I agree that the judgment in this case must be re-, versed on account of the withholding of the identity of the “informer,” but I would not go so far as to hold that every informer who is a witness to an alleged offense, or who participates in an alleged illegal transaction, must be identified or that the decision is that of the accused in every instance. In Roviaro v. United States, 353 U.S. 53, 77 S. Ct. 623, 1 L. Ed. 2d 639 (1957), cited in the majority opinion, I find the following appropriate language:

A further limitation on the applicability of the privilege arises from the fundamental requirements of fairness. Where the disclosure of an informer’s identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way. In these situations the trial court may require disclosure, and, if the Government withholds the information, dismiss the action. …

We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.

¶9In Roviaro, a sale of narcotics was involved, but the charge related to receipt, concealment, purchase and facilitation of transportation and concealment of illegally imported heroin. The defendant was faced with a conviction unless he could explain or justify his possession of the drug. So far as the defendant in that case knew, he and the informer called John Doe were alone and unobserved at the crucial tíme. Consequently, unless he chose to waive his constitutional right and take the stand, John Doe was obviously a material witness, and his right to cross-examine eavesdropping and observing police officers was clearly an inadequate substitute for the testimony of this man who allegedly purchased heroin from him. John Doe was the only person other than the defendant who could amplify or contradict the testimony of the officers. Under these circumstances the court held that the defendant should have the right to at least interview this material witness.

¶10There is enough similarity here to make Roviaro controlling. It seems to me, however, that an informer who participates or witnesses a transaction does not, ipso facto, lose status as an informer who has been, and who may subsequently be, of material assistance in law enforcement, if his identity is protected. The presence or participation of the informer is, of course, an important factor in deciding whether the privilege may be invoked. If the informer, as in Roviaro, was the only participant, then the necessity for disclosure is obvious.

¶11I would say that, in the ordinary case, even where a participant or eyewitness is involved, the burden is on the defendant to show the existence of circumstances justifying the disclosure of the informer’s identity, where those circumstances are not, as here, apparent. Generally, the materiality of the disclosure to the defense should appear or be shown. The determination of the necessity of disclosure to insure fundamental fairness in the trial should be a judicial one, not that of the accused.

¶12I sincerely feel that the court has gone further than necessary in ruling on this point, so that I do not consider the language of the opinion binding in future cases.