Dokes v. Arkansas Reply Brief for Appellant

    &uprma Qlourt of Arkanaaa
No. 5224

J o h n  H en ry  D okes, S ylvia  D okes,

v.
Appellants,

S tate of A rkansas ,
Appellee,.

APPEAL FROM
PULASKI COUNTY CIRCUIT COURT 

H on . W illiam  J . K irby , J udge

REPLY BRIEF FOR APPELLANT

D elector T iller

2305 Ringo Street 
Little Rock, Arkansas

J oh n  W . W alker

1304-B Wright Avenue 
Little Rock, Arkansas

J ack  G reenberg 
J am es M. N abrit  III 
M ich ael  M eltsner

10 Columbus Circle 
New York, New York

Attorneys for Appellants



g>Mprm? fflmirt of Arkanaaa
No. 5224

J o h n  H en ry  H okes, S ylvia  H okes,

Appellants, 
v.

S tate op A rkansas ,
Appellee.

APPEAL FROM
PULASKI COUNTY CIRCUIT COURT 

H o n . W illiam  J . K irby , J udge

REPLY BRIEF FOR APPELLANT

I.
The State has failed to respond to appellants’ conten­

tions in Points I, II, III and Y  of Appellants’ Brief, and 
argues incorrectly that the errors complained of were not 
preserved for review by this Court on appeal.

Points I and II deal with the sufficiency of the evidence 
upon which appellants were convicted of violating Ark. 
Stat. Annot. §45-239. This issue was properly raised in 
the Motion for New Trial. Paragraph four therein sets 
out as one of the grounds that the evidence in the record 
related to persons over the age of eighteen, while the 
statute concerns minors under that age. Appellants’ con­
tention that there was no evidence in the record to support 
their convictions was thus clearly preserved. Appellants 
contend further that if evidence appearing in the record



2

is held to sustain a verdict against them under the statute, 
such a holding renders the statute void as construed since 
no notice of what acts would violate the statute is pro­
vided by its language. The relation between the arguments 
is intimate; they are like two sides of the same coin. It 
can hardly be said that the trial judge, in ruling upon the 
Motion for New Trial, failed to consider the statute as 
well as the evidence. His approval of the verdict upon the 
evidence in this record necessarily reflected his belief that 
the statute was not thereby rendered void, and appellants 
are entitled to have this Court rule upon that basic question.

Point III of Appellants’ Brief concerns the admission 
of evidence obtained through an unconstitutional search. 
Paragraph two of the Motion for New Trial (T. 12) 
specifically alleged the unconstitutional search and seizure 
as a ground for new trial. Furthermore, defendant’s Mo­
tion to Suppress Evidence (T. 20) also raised this issue. 
The overruling of this motion was not made a ground 
for new trial (see Walker v. State, 39 Ark. 221) only be­
cause the Motion for New Trial was filed May 3, 1966 
(T. 14) while the Motion to Suppress Evidence was not 
ruled upon until May 23, 1966 (T. 20-A). Defendants’ ex­
ceptions to the overruling were saved by the lower court 
at that time (T. 20-A).

As to Point V, Appellants’ Brief clearly establishes the 
duty of this Court to reverse even had the amendment of 
the statute taken place after the entry of judgment herein. 
It is submitted that appellants cannot waive the duty of 
Arkanses courts to comply with Ark. Stat. Annot. §1-104.



Appellees also misconstrue Point IY of Appellants’ 
Brief. Even accepting the conclusion of this Court in 
Williams v. City of Malvern, 222 Ark. 432, 261 S.W.2d 6 
(1963), the evidence in this record fails to indicate any 
conduct of appellants which tended to cause the delinquency 
of any minors. Not only were no particular minors identi­
fied as being delinquent, but no minors were identified as 
having been in any way affected by any conduct of appel­
lants which would tend to cause delinquency.

Respectfully submitted,

D elector T iller

2305 Ringo Street 
Little - Rock, Arkansas

J o h n  W . W alker

1304-B Wright Avenue 
Little Rock, Arkansas

J ack  Greenberg

J am es M. N abrit III
M ic h ael  M eltsner

10 Columbus Circle 
New York, New York

Attorneys for Appellants

3

II.



MEILEN PRESS INC. —  N. Y. C.*€U^> 219