# Ward v. State

> Supreme Court of Arkansas · October 10, 1983 · 280 Ark. 353

URL: https://www.frixlaw.com/law-library/cases/9682656

## Case

- **Full name:** John Andrew WARD v. STATE of Arkansas
- **Court:** Supreme Court of Arkansas
- **Decided:** October 10, 1983
- **Citations:** 280 Ark. 353; 658 S.W.2d 379; 1983 Ark. LEXIS 1520
- **Precedential status:** Published
- **Opinion:** Dissent by Purtle
- **Judges:** Hays, Hickman, Purtle
- **Cited by:** 12 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9682656

## Opinion text

John I. Purtle, Justice, dissenting. In dissenting I concede the majority opinion follows our precedent. However, it is my opinion that our case law is wrong. This opinion will no doubt encourage overcharging by the state as was suggested in the dissent from the Arkansas Court of Appeals. The appellant in the case before us was charged with three counts of burglary and three counts of theft of property. Why would the state charge a man with three burglaries growing out of one incident unless it is to sway the trier of fact to find him guilty of a single burglary? In this case perhaps thirty people could be convicted of burglary because anyone in possession of any one of the stolen items could be found guilty of the crime of burglary even though they may have never set foot in Arkansas.
It seems to me that the appellant could have, with clear conscience, been charged as an habitual offender and with the felony of theft by receiving. There is not a single shred of evidence anywhere in the record to connect the appellant with a burglary, other than him being in possession of three of the thirty items stolen in a recently executed burglary. His possession was in another city in another sate. Admittedly he lied about how he obtained the articles but that is as much in line with trying to avoid being charged with possession of stolen property as it is with burglary. He could have received a stiff sentence (up to 40 years) under a charge of theft by receiving and being an habitual offender.
To be guilty of burglary under Ark. Stat. Ann. § 41-2002 (Repl. 1977) one must have been found to have been physically upon the burglarized property with the intent to commit an offense punishable by imprisonment. The only manner by which this appellant could have been found guilty of burglary of the Wonder School instruments was by conjecture and speculation. On the other hand, the evidence would clearly support a conviction of theft by receiving. The majority opinion is void of any evidence supporting the conviction for burglary because it would have to be inserted from outside the record.
The presumption indulged in by the majority shifts the burden of proof from the state to the accused in violation of the state and federal constitutions as well as statutory law. Merely because we have previously been wrong does not make it right for us to continue to be wrong.
The Supreme Court of Louisiana was caught in the same dilemma this court is in today but the Louisiana court, unlike this court, faced the issue and overruled its prior case law. State v. Searle, 339 So.2d 1194 (La. 1976). I find the Searle case very persuasive. A judicial presumption simply cannot stand muster against a constitutional right. The appellant had a right to have the state prove every element of the crime of burglary. The state did not meet its burden according to the record. The appellant now stands convicted not by evidence, either direct or circumstantial, but by inference or presumption. Under this theory of the law a person unknowingly walking past the body of a murdered policeman could be convicted of capital murder. I must insist that the state prove every element of an offense beyond a reasonable doubt before I vote to affirm a sentence confining an individual to imprisonment.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9682656. Public record. Not legal advice.