Beckwith v. Arkansas Abstract and Brief for Appellant

    I N  T H E

Supreme Court or Arkansas
PAUL LOUIS BECKWITH,  ..........Appellant

vs. No. 5107 (Criminal)
STATE OF ARKANSAS,..................... Appellee

APPEAL FROM
MONROE COUNTY CIRCUIT COURT

*  *  *

HONORABLE W. J. WAGGONER 
Judge

ABSTRACT AND BRIEF 
FOR APPELLANT

WILEY A.BRANTON 
5 Forsyth Street, N. W. 
Atlanta 3, Georgia
L. HOBSON MAHON, 
Brinkley, Arkansas

Attorneys for Appellant

ARKANSAS PRINTING CO. —  PINE BLUFF, ARK.



IN  T H E

PAUL LOUIS BECKWITH, ............... Appellant
vs. No. 5107 (Criminal)

STATE OF ARKANSAS,.....................Appellee

APPEAL FROM
MONROE COUNTY CIRCUIT COURT 

* * *

HONORABLE W. J. WAGGONER 
Judge

ABSTRACT AND BRIEF 
FOR APPELLANT

STATEMENT OF THE CASE
This is an appeal from an order overruling 

appellant’s Motion to Quash Information and Mo­
tion to Discharge Defendant. The appellant, Paul 
Louis Beckwith, a Negro, is charged in an Infor­
mation, filed with the Clerk of the Monroe County 
Circuit Clerk with the crime of Murder in The



2

First Degree alleging that he killed one Sue Helen 
Fuller, by striking her on the head with a stick, on 
the 12th day of December, 1954 in Monroe County, 
Arkansas. The Information was not filed until 
July 5, 1962.

The appellant was taken into custody on the 
day of the murder and held in jail in Brinkley for 
over a week before being released when one Will­
ingham confessed to the crime. (Charges were 
later dismissed against Willingham). In January 
of 1955, the appellant was convicted of burglary 
in Arkansas City (Desha County) Arkansas and 
sentenced to three years in the Arkansas State 
Penitentiary. On August 7, 1957, Beckwith was 
released from the Arkansas penitentiary and turn­
ed over to Missouri authorities and he was subse­
quently sentenced to the Missouri Penitentiary fol­
lowing conviction for an earlier crime in that state. 
A hold order was placed on the defendant with 
Missouri authorities but the appellant had no 
knowledge of it until July of 1962, one month be­
fore he was scheduled to be released in Missouri.

On July 5, 1962, the prosecuting attorney 
filed the Information charging the appellant with 
Murder in the First Degree with the Circuit Clerk 
of Monroe County and the latter promptly issued a 
bench warrant. Neither the matter of the filing



3

of the Information or the issuance of the bench 
warrant had been presented or brought to the at­
tention of the Circuit Judge. Beckwith was re­
turned to Arkansas on August 12, 1962 and has 
been confined in the Monroe County Jail at Claren­
don ever since. On November 29, 1963, appellant 
filed a motion seeking to be discharged on the 
grounds that he had been held beyond the third 
term of court without benefit of trial and also 
seeking to quash the Information. From an order 
overruling both motions, this appeal follows.

POINTS RELIED UPON FOR REVERSAL

I. THE COURT ERRED IN OVERRULING 
APPELLANT’S MOTION TO QUASH IN­
FORMATION BECAUSE:

(1) Prosecution by Information under Ar­
kansas Statute violates Federal Con­
stitution.

(2) Procedure followed by prosecuting at­
torney in this case was unlawful and 
deprived appellant of due process of 
law.

II. THE COURT ERRED IN OVERRULING 
APPELLANT’S M O T I O N  FOR DIS­
CHARGE BY REASON OF HIS HAVING



4

BEEN HELD IN JAIL BEYOND THE 
THIRD TERM OF COURT WITHOUT 
BENEFIT OF TRIAL.

NO. 4403
INFORMATION OF THE PROSECUTING 

ATTORNEY 
(Caption Omitted) (R. 3)

I, W. M. Lee, Prosecuting Attorney, within 
and for the 17th Judicial Circuit of the State of 
Arkansas, of which Monroe County is a part, in 
the name and by the authority of the State of Ar­
kansas, on oath, accuse the defendant Paul Louis 
Beckwith of the crime of Murder First Degree 
committed as follows, to-wit: The said defendant 
on the 12th day of December, 1954, in Monroe 
County, Arkansas, did unlawfully, wilfully, felon­
iously, with malice aforethought and after pre­
meditation and deliberation, assault, kill and mur­
der Sue Helen Fuller, by striking her in the head 
with a hickory stick, while in the act of committing 
burglary and larceny, the said hickory stick then 
and there held in the hands of him, the said defend­
ant, with the unlawful and felonious intent, then 
and there, her, the said Sue Helen Fuller, wilfully



5

and maliciously to kill and murder against the 
Peace and Dignity of the State of Arkansas.

SS/ W. M. Lee
ProseeutingAttorney

Filed July 5, 1962

BENCH WARRANT
The State of Arkansas, to any Sheriff, Constable, 

Coroner, or Policeman, in this State:
You are comanded forthwith to arrest Paul 

Louis Beckwith and bring him before the Monroe 
County, Arkansas Circuit Court, to answer an in­
dictment in that Court against him for the offense 
of Murder First Degree or if the Court be adjourn­
ed for the Term, that you deliver him to the Jailer 
of Monroe County, Arkansas.

WITNESS my hand and the seal of said Court, 
this 5th day of July, 1962.

(Seal) SS/ Jno. G. Roberts, Clerk

Filed this 8th day of Oct., 1963.
SS/ Jno. G. Roberts, Clerk.



6

MOTION TO QUASH INFORMATION 
(Caption Omitted) (R. 8)

FILED OCT. 8, 1963

Comes the defendant, Paul L. Beckwith, by his 
attorneys, Wiley A. Branton and L. Hobson Ma­
hon, and moves the Court to set aside the Informa­
tion filed herein in cause No. 4403 for the follow­
ing reasons:

(1) The Information filed in this cause was 
apparently filed pursuant to Amendment No. 21 
to the Constitution of the State of Arkansas. The 
defendant contends that said Amendment No. 21 
is in violation of the provisions of the Fifth Amend­
ment to the Constitution of the United States of 
America and is in violation of those liberties pro­
vided in the Fourteenth Amendment to the Con­
stitution of the United States, in that he is being 
prosecuted without regard to the due process of 
law required by said Federal Constitution.

(2) The defendant contends further that 
even if the Court should rule that Amendment No. 
21 to the Constitution of Arkansas is constitution­
al, the said Information filed herein should be 
quashed on the further grounds that the Prosecut­
ing Attorney who filed said Information followed 
an arbitrary and unreasonable method of proced-



7

ure in the filing of said Information, which has re­
sulted in the defendant’s being deprived of the 
safeguards guaranteed to him by the Fourteenth 
Amendment to the Constitution of the United 
States, in that he is being prosecuted without re­
gard to the due process of law required by said 
Federal Constitution.

(3) Defendant contends further that he has 
never been given a preliminary examination or 
hearing before a magistrate and has not been 
bound over to the Grand Jury or indicted by any 
Grand Jury and that the Prosecuting Attorney 
therefore had no lawful right to file the said In­
formation complained herein.

WHEREFORE, petitioner prays that he be 
allowed a hearing before the Court to determine 
the proceedure which was followed in the filing of 
the Information herein, and that he be allowed to 
put on witnesses in support of his motion herein, 
and that after a full hearing on same, that the 
Motion to Quash Information be granted.

WILEY A. BRANTON and 
L. HOBSON MAHON

Attorneys for Defendant



8

MOTION TO DISCHARGE DEFENDANT 
AND QUASH INFORMATION

(Caption Omitted) (R. 10)

FILED NOV. 29, 1963
Petitioner, Paul Louis Beckwith, for his Mo­

tion to Discharge Defendant and Quash Informa­
tion in the above cause, states:

1. There has been no indictment of this de­
fendant by any Grand Jury in Monroe County, Ar­
kansas, and the State of Arkansas is attempting to 
proceed to try this defendant for a capital offense 
by and through the filing of an Information by the 
prosecuting attorney, contrary to the provisions of 
the Fifth Amendment to the Constitution of the 
United States of America, and under circum­
stances which deny to the defendant the due pro­
cess of law and equal protection of the laws as pro­
vided in both the Fifth and Fourteenth Amend­
ments to the Constitution of the United States.

2. Petitioner states that he is charged with 
the alleged murder of one Sue Fuller in Monroe 
County, Arkansas on or about December 12, 1954; 
that the petitioner has been in the custody of Ar­
kansas penal or law enforcement authorities con­
tinuously since early 1955, including the time 
spent in prison in Missouri with an Arkansas hold



9

order on him, and that the Prosecuting Attorney 
in this cause did not proceed to file said Informa­
tion until on or about the 3rd day of July, 1962, 
when it was known by said prosecutor that the pe­
titioner was about to be discharged from the 
Missouri Penitentiary.

3. Petitioner states that the Information 
herein was filed during the April, 1962 term of 
the Monroe Circuit Court and that he has been held 
in the Monroe County jail awaiting trial since Au­
gust of 1962, and that petitioner has not yet been 
brought to tria l; that the term of Court in which 
the Information was filed was April Term, 1962, 
and that both the November, 1962 and April, 1963 
terms of Monroe Circuit Court have now passed 
without petitioner having been brought to trial, 
even though court was held in each of said terms, 
and petitioner contends that he is entitled to dis­
charge pursuant to the provisions of Arkansas 
Statute 43-1708.

4. Petitioner states that in addition to avail­
ing himself of the rights provided under Arkansas 
Statute 43-1708, the facts and circumstances are 
such in this case as to deny to the petitioner the 
right to a speedy and public trial as guaranteed 
by the Sixth Amendment to the Constitution of the 
United States of America and Article 2, Section 10



10

to the Constitution of Arkansas, and to also deny 
to him the due process of law and equal protection 
of the law as guaranteed by the Fifth and Four­
teenth Amendments to the Federal Constitution.

WHEREFORE, petitioner prays that he be 
granted a hearing on this motion and that after a 
hearing of same that the petitioner be ordered dis­
charged from the custody of the sheriff and that 
the Information herein be ordered quashed.

Respectfully submitted,
WILEY A. BRANTON and
L. HOBSON MAHON
Attorneys for Defendant

BY: SS/WILEY A. BRANTON

ORDER OVERRULING MOTIONS 

(Caption Omitted) (R. 12)
Now on the 29th day of November, 1963, 

comes on to be heard certain motions by the de­
fendant, Paul Louis Beckwith. And comes the 
State of Arkansas by and through Honorable W. 
M. Lee, Prosecuting Attorney of the Seventeenth 
Judicial Circuit, and comes the defendant, Paul 
Louis Beckwith, in person and in the custody of the



11

Sheriff of Monroe County, and by his attorneys, 
Wiley A. Branton and L. Hobson Mahon.

And there is presented to the Court the Mo­
tion to Quash Information and Motion to Dis­
charge Defendant and Quash Information, togeth­
er with testimony and other evidence and argu­
ment of counsel, from all of which the Court doth 
find that each of said Motions should be and they 
are hereby overruled.

To which action of the Court the defendant 
has objected as to each of said motions and his ex­
ceptions are hereby noted of record, and the de­
fendant having prayed and appealed to the Su­
preme Court of Arkansas from said order overrul­
ing said motions, the appeal is hereby granted.

SS/ W. J. Waggoner 
Circuit Judge

Dated this 13th day 
of December, 1963.



ABSTRACT OF TESTIMONY
Hon. William M. Lee, Prosecuting Attorney, was 

called to the stand as a witness for the defend­
ant in support of his Motion to Quash Infor­
mation and testified as follows: (R. 16)

My name is W. M. Lee. I live in Clarendon, 
Arkansas. I am Prosecuting Attorney for the 
Seventeenth Judicial District of which Monroe 
County is a part. I took office January 9, 1955 
and have held it ever since. The Information No. 
4403 which you hand me, styled State of Arkan­
sas vs. Paul Louis Beckwith and filed with the Cir­
cuit Clerk of Monroe County on July 5,1962 bears 
my signature and is the same one in which I 
charged Paul Louis Beckwith with the alleged 
murder of Sue Helen Fuller.

I have never presented any charges relating 
to this defendant to the Grand Jury. I filed the 
Information as provided by law myself. The pro­
cedure which I followed was to prepare the Infor­
mation and come over to the Circuit Clerk’s Office 
and file it. I never at any time presented the In­
formation to the judge of the judicial circuit. He 
sees that at the time the defefendant is brought to 
trial or I presume today on these motions. No, it 
is not customary for the prosecuting attorney to



13

ask the judge’s permission to file an information. 
I filed the Information and then a warrant was 
issued and forwarded to Missouri and served on 
the defendant who was in the penitentiary in 
Missouri. Just as soon as I filed the Information, 
the clerk immediately issued a bench warrant. To 
my knowledge, neither the Information or the 
bench warrant was presented to the Circuit Judge. 
A bench warrant was issued in the murder charge 
in controversy here. I have never presented this 
matter before any Judge or Magistrate or called 
any kind of a preliminary hearing in connection 
with this case. I don’t think it is required. There 
has been no judicial hearing conducted in this case 
before a Justice of the Peace, a Magistrate or Cir­
cuit Court with the exception of the hearing we 
are having today. I believe the defendant had em­
ployed counsel shortly after he was put in jail in 
Arkansas and at the request of counsel we sent the 
defendant to the State Hospital for observation. 
Very shortly before the filing of the Information 
I had a conference with Lt. Guinn of the Arkansas 
State Police in which we discussed the matter and 
I was also advised that Beckwith was going to be 
released from the penitentiary in Missouri. At 
that time I filed the Information and that was 
shortly before he was released from the Missouri



14

Penitentiary. The Warrant was issued on July 5, 
1962. Yes, I had known for a good while that 
Beckwith was a suspect along with several other 
people. It was probably a little of both new in­
formation and the fact that I knew he was going 
to be released in Missouri that caused me to file 
the Information. I wanted to get Beckwith to 
stand trial under the charge and I thought the 
State had sufficient evidence to bring him to trial. 
I didn’t think too much about the sufficiency of 
evidence while he was in the penitentiary in Mis­
souri, I wasn’t going to try to extradite him out of 
Missouri. The defendant was picked up in Brink- 
ley shortly after this crime along with 40, 50 or 60 
other people. There was one man by the name of 
Willingham that confessed to this crime. This 
killing took place on December 12, 1954 and I took 
office January 1, 1955. After Willingham con­
fessed, all of the suspects were released. It was 
later determined that Willingham was a nut and 
I then dismissed charges against him. (R. 23).

I had been advised that the defendant had 
been arrested shortly after his release and sent to 
the Arkansas Penitentiary from another county. 
I have known since 1955 the whereabouts of this 
defendant at all times. He has either been in the 
Arkansas Penitentiary or the Missouri Peniten-



15

tiary. He was returned to this county a year ago 
this past August and has been in jail in Clarendon 
ever since. I did not file the Information earlier 
because I did not have all of the information while 
he was in the penitentiary in Arkansas that I had 
after he was sent to Missouri. I never made any 
agreement with Missouri authorities whereby they 
would hold him until my office decided whether or 
not I wanted him any further. I believe the Ar­
kansas State Police placed a hold order on him, not 
me. I had filed a burglary charge against Beck­
with on October 26,1957 and a bench warrant was 
issued at that time. I assume by the return it was 
held by the Sheriff and served on the defendant 
on August 18, 1962. I think the defendant Beck­
with was in the Arkansas Penitentiary when I 
filed this Information in 1957. We were perfectly 
willing to release this defendant at that time to the 
Missouri authorities to be tried on the more serious 
charge of rape. Sheriff McKenzie waited 5 years 
to serve this bench warrant because the defendant 
was out of the state from the time he was taken out 
of the penitentiary here in Arkansas and carried 
to Missouri. I sent the murder warrant to Mis­
souri but did not follow the same procedure on the 
Burglary Information because I did not think it 
was necessary to have both warrants served on the



16

defendant. No, I wouldn’t say it would be an ac­
curate statement to say that the burglary charge 
was something that was filed primarily to hold this 
defendant in case we didn’t come up with a more 
likely suspect in the murder case. You might say 
that I made the final decision as to whether or not 
the defendant Paul Louis Beckwith should be 
charged with this capital offense in my capacity as 
prosecuting attorney. Since reaching the decision 
to charge Beckwith with this crime, I have not 
presented the matter regarding whether or not 
those charges should still stand to any Judge or 
Magistrate. I thought I would let the Circuit Court 
decide whether or not we had sufficient grounds 
to convict him. I presume I will represent the 
State of Arkansas in presenting those criminal 
charges to a jury if I am still prosecuting attorney. 
Yes, I not only decide that this man should stand 
trial but I am the same person who presents the 
matter to the jury and try to get a conviction. That 
is the duty of the prosecuting attorney. (R. 27).

John G. Roberts, Circuit Clerk, was called by the 
defendant and testified as follows: (R. 28)
My name is John G. Roberts. I am Monroe 

Circuit Clerk and Recorder and have held that posi­
tion 36 years. The assignment of a number of a



17

case is not given until the bench warrant has been 
returned. This would explain the reason for the 
burglary charge which was filed in 1957 having a 
number very close to the murder charge that was 
not filed until 1962.1 signed the bench warrant on 
July 5, 1962 which directed the Sheriff to arrest 
Paul Louis Beckwith on a charge of Murder in the 
First Degree. I issued the bench warrant because 
Mr. Lee filed the Information in my office. I 
know of no authorization or court order for me to 
issue that bench warrant in this case. It is just 
routine with this office when the prosecuting at­
torney files an Information, I issue a bench war­
rant. No, the matter was not presented to the 
Judge at all. The Circuit Judge never at any time 
authorized or directd me to issue that bench war­
rant. I have no blanket authority from the Circuit 
Judge to issue bench warrants, I only know what 
custom I have always followed. On a Grand Jury 
Indictment filed in open court, the court instructs 
me to issue a bench warrant. No, the court gave 
me no instructions about this bench warrant. I 
take my orders during vacation from the proscut- 
ing attorney. (R. 31).



18

CROSS EXAMINATION (R. 31)
It has been the custom for some 30 odd years 

that when the prosecuting attorney files the In­
formation then I issue a bench warrant based on 
that Information and the Judge of this court has 
always consented in my so acting.

Paul Louis Beckwith, the defendant, testified in 
his own behalf in support of his motions.

DIRECT EXAMINATION (R. 33)
My name is Paul L. Beckwith. I am the de­

fendant in this case. I have been in the Monroe 
County Jail awaiting trial since August 18, 1962. 
Immediately before being brought to Monroe 
County I was in confinement in Cole County 
Jail in Jefferson City, Missouri. I had been 
given, an eight year sentence in Missouri and 
I served 4 years 4 months and some few days. 
Before going to Missouri, I was being held in the 
Arkansas State Penitentiary.

I was arrested in Brinkley on December 12, 
1954 and was held until the Tuesday morning of 
the following Tuesday morning. On January 6, 
1955,1 was charged with burglary in Desha Coun­
ty and sent to the Arkansas State Penitentiary 
and stayed there until I completed the three year



19

sentence. I was released from the Arkansas State 
Penitentiary August 7, 1957. I knew then that I 
was under the investigation of a murder charge 
in Monroe County. I was not advised that there 
was a burglary charge against me. In August, 
1957, I was delivered to the custody of the Sheriff 
in Missouri and later sentenced to the Missouri 
State Penitentiary. I was to have been released 
from the Missouri Penitentiary on August 12, 19- 
62. I believe it was July 8, 1962 when I was first 
informed that there was a murder charge pending 
against me in Monroe County Arkansas. That 
was a little over a month from the time I was to be 
released from the Missouri Penitentiary. I re­
quested an extradition hearing in Missouri but 
never did get one. I had some letters and papers 
regarding my motion for a Writ of Habeas Corpus 
but they were taken from me at Cole County Jail 
in Jefferson City, Missouri and were not brought 
with me to Arkansas. Since I have been in the 
Monroe County Jail, I have not been taken before 
a Judge or Magistrate and given any kind of hear­
ing other than the time I was in Court to be sent 
to the State Hospital.



20

PAUL LOUIS BECKWITH
CROSS EXAMINATION (R. 88)

I don’t know why I haven’t been brought to 
trial in Arkansas on this murder charge. I don’t 
know anything about my lawyers asking for the 
delay. They haven’t told me why I was not being- 
brought to trial. They did not tell me they were 
going to file a lot of motions. I did not waive ex­
tradition to go back to Missouri from Arkansas. 
I am questioning my extradition to Arkansas. I 
was not a fugitive from the State of Arkansas and 
I have never been a fugitive from the charge you 
have me charged with. You yourself knew I was 
in the Arkansas State Penitentiary when you were 
investigating the case and you knew that I was 
going to be taken to the State of Missouri. I got 
a letter from the judge in Missouri that my motion 
had been filed in my behalf and that it was set for 
a suit but I never did get a hearing. I was given 
a copy of the warrant in Missouri and you had me 
charged with the Information of murder. I was 
denied the rights of a hearing on the extradition 
from Missouri. I never heard any more from the 
court until I got the letter from the judge. I was 
without counsel. I asked the sheriff’s office for 
counsel, I did not ask the warden of the penitenti­
ary about wanting counsel. I had a talk with the



21

warden about 10 or 12 days before I left. He ad­
vised me not to do anything. He said it didn’t 
make sense to him to have a man in custody, hav­
ing him in the penitentiary and then give him up 
to the soveriegn state and then they want him 
back. He said that the State of Arkansas had 
waived their rights against me. I don’t know why 
I haven’t  been tried since I have been brought back 
to the State of Arkansas and I am going to ask 
you why. (R. 47).

ARGUMENT
I

THE COURT ERRED IN OVERRULING AP­
PELLANT’S MOTION TO QUASH INFOR­
MATION BECAUSE:
(1) Prosecution by Information under Ar­

kansas Statute violates Federal Consti­
tution.

The appellant filed a timely Motion to Quash 
Information on October 8, 1963 in which he con­
tended that Amendment No. 21 to the Constitution 
of the State of Arkansas is in violation of the 
provisions of the Fifth Amendment to the Consti­
tution of the United States and is in violation of



22

those liberties provided in the Fourteenth Amend­
ment to the Federal Constitution.

The appellant recognizes that a State may, if 
it so desires, provide for prosecution by Informa­
tion rather than by Indictment. Hurtado v. Cali­
fornia, 110 U. S. 516, 18 S. Ct. 292, 28 L. Ed. 461. 
However, the California Statute which was up­
held in the Hurtado case requires examination and 
committment by a magistrate as a condition prece­
dent to the validity of an Information and there­
fore procedural “due process” as required by the 
Fourteenth Amendment to the United States Con­
stitution is preserved and protected. This Court 
held in Denton v. State (1937) 194 Ark. 503, 109
S. W. (2) 131, that “omission of this requirement 
from the Arkansas Amendment does not deprive 
the accused of the rights of due process guaranteed 
under the Constitution of the United States”—and 
yet the Court said in the same case. (DENTON), 
that a constitutional amendment is self-executing 
“if it supplies a sufficient rule, by means of which 
the right given may be enjoyed and protected, or 
the duties imposed may be enforced”.

The appellant’s attorneys are aware of the 
fact that there is a long line of opinions by the Su­
preme Court of Arkansas declaring Amendment 
No. 21 to the Arkansas Constitution as valid



23

and not violative of the Federal Constitution; 
Washington vs. State, 213 Ark. 218, 210 S. W. 2d 
307; Casico v. State, 213 Ark. 418, 210 S. W. 2d 
897; Brown v. State, 213 Ark. 989, 214 S. W. 2d 
240; and, Payne v. State, 226 Ark. 910, 295 S. W. 
2d 312, Reversed on other grounds 356 U. S. 560, 
2 L. Ed. 2d 975, 78 S. Ct. 844. Despite the many 
rulings in the past, the appellant seriously urges 
this Court to reconsider the question of the consti­
tutionality of Amendment No. 21 and the omission 
of any requirement for examination and commit­
ment by a magistrate with the view of adopting 
the spirit of Hurtado, supra, and require some 
kind of a preliminary hearing as a condition prece­
dent to the filing of an Information. The appel­
lant would urge this Court to go even further and 
follow the dissenting opinion of Mr. Justice Black 
and three other Justices as was expressed in 
Adamson v. California, (1947) 332 U. S. 46, 67 S. 
Ct. 672, 91 L. Ed. 903.

Amendment No. 21 to our State Constitution 
was enacted in 1935 and the General Assembly of 
1937 undertook to enact certain statutory man­
dates which would safeguard the right of “due 
process” when informations were being filed by 
prosecuting attorneys. Act 160 of the Acts of 
1937 was adopted and now appear as Sections 43-



24

801 through 43-806 of the Arkansas Statutes. Sec­
tion 43-806 reads as follows:

“43-806 PROCEDURE WHEN DEFEND­
ANT HELD. — Whenever a defendant has 
been held to answer at a preliminary exami­
nation to await the action of the grand jury, 
or has been held for the circuit court, the pro­
secuting attorney may proceed to file Infor­
mation in the circuit court and to trial of the 
case; provided the prosecuting attorney, with 
the consent of the circuit court, may nolle 
prosequi any indictment or information pend­
ing in said court.”

The only purpose and intent of the General 
Assembly in passing this Statute was obviously to 
give a defendant the same basic safeguards which 
he would have under an indictment by a grand 
jury by making a preliminary examination a pre- 
sequisite to the filing of an information by a prose­
cuting attorney, the preliminary examination be­
ing in lieu of the grand jury deliberation.

The requirement of a preliminary examina­
tion is followed by the majority of the jurisdictions 
in which prosecution by Information is permissible. 
See 27 Am. Jur., Indictments and Informations, 
Sec. 14. Sections 43-801, 802 and 803 of Arkan­
sas Statutes Annotated (1947) provide for investi­
gations by the prosecuting attorney with the 
authority to issue subpoenas, a manner of



25

service of same and a penalty against any 
officer refusing to serve the subpoena. All of 
these statutes certainly make it clear that it was 
intended that a preliminary hearing should be 
held before any Information was to be filed.

To permit a prosecution of this appellant for 
a capital crime by an Information without any 
kind of a preliminary hearing whatsoever deprives 
the appellant of the minimum standards of pro­
cedural “due process” as were present in the Cali­
fornia cases of Hurtado and Adamson, supra, and 
clearly deprive the appellant of the “due process of 
law” required by both the Fifth and Fourteenth 
Amendments to the Constitution of the United 
States. The undisputed facts show that the ap­
pellant was never accorded any kind of a prelim­
inary hearing before a judge or magistrate prior 
to the filing of the Information, nor has he been 
given any kind of a hearing touching any of the 
matters relating to the Information or the crime 
with which he is charged other than those relating 
to the hearings on his own motions to quash the 
information. The Motion to Quash Information 
should have been granted.

(2) Procedure followed by prosecuting at­
torney in this case was unlawful and de­
prived appellant of due process of law.



26

The appellant next contends that even if this 
Court should continue to hold Amendment No, 21 
to the Sate Constitution to be valid and to say that 
no preliminary hearing is necessary as a condition 
precedent to the filing of the Information, never­
theless, the appellant contends that the procedure 
followed by the prosecuting attorney in this case 
has been so arbitrary, unreasonable and unlawful 
as to deprive the appellant of due process of law. 
A review of the fact and circumstances is appro­
priate here.

On December 12, 1954, someone inflicted 
serious injuries on the head of Mrs. Sue Helen 
Fuller in the City of Brinkley, Arkansas, causing 
her death on the same day and the circumstances 
were such as to create a presumtpion that Mrs. 
Fuller had been murdered. The appellant, Paul 
Louis Beckwith, was taken into custody on the 
same day along with some 40 to 60 others in a 
general roundup. (R. 22). The appellant remain­
ed in jail in Brinkley for more than a week before 
he and other suspects were released after one Will­
ingham confessed to the crime. Criminal charges 
were filed against Willingham and later dismissed 
when it was determined “that this Willingham was 
a nut”. (R. 23). After his release from the 
Brinkley jail in December of 1954, the appellant



27

went to Desha County, Arkansas where he commit­
ted a burglary and was convicted in the Desha 
County Circuit Court in January of 1955 and sen­
tenced to a term of 3 years in the Arkansas State 
Penitentiary. The appellant completed his sen­
tence in the Arkansas State Penitentiary in Au­
gust of 1957 but he was not permitted to go free 
as he was turned over to law enforcement officers 
from Missouri who had obtained an extradition 
order for the appellant to stand trial for an alleged 
crime in that state. Beckwith was convicted in 
Missouri and sentenced to the Missouri State Peni­
tentiary where he remained until the 18th day of 
August, 1962 when he was turned over to the cus­
tody of the Sheriff of Monroe County, Arkansas. 
He is now and has been confined in the Monroe 
County Jail at Clarendon, Arkansas since August 
18, 1962 and has been in continuous confinement, 
either in Arkansas or in Missouri, since January, 
1955. On October 26, 1957, the prosecuting at­
torney filed an Information against the appellant 
in the Monroe County Circuit Court charging him 
with Burglary (unrelated to the Fuller murder) 
but the bench warrant was not served on the appel­
lant until August 18, 1962. (R. 25). A hold order 
was placed on the defendant with the Missouri 
authorities. The appellant had no knowledge that



28

a burglary information had been filed against him 
in Monroe County, (R. 35), or that he would be 
taken back to Arkansas in connection with the 
Fuller murder until July 8, 1962, a month before 
he was scheduled to be released from the Missouri 
Penitentiary. (R. 36).

The prosecuting attorney for Monroe County, 
Arkansas and the law enforcement officers from 
said County have known the whereabouts of the 
defendant continuously ever since he was sent to 
the Arkansas State Penitentiary in January of 
1955. (R. 23). Despite the fact that the appellant 
has always been one of the suspects in the Fuller 
murder case, it was not until July 5, 1962 that the 
prosecuting attorney filed an Information against 
the appellant charging him with the murder of the 
said Sue Helen Fuller. It should be significant 
that no such criminal charges were filed against 
the appellant during the three years he was con­
fined in the Arkansas Penitentiary and that the 
only charge which was filed against him in 1957 
after he had been taken to Missouri was a burglary 
charge which apparently was filed and used solely 
as a means for a hold order on the defendant while 
he was in the Missouri Penitentiary. Since no ef­
fort was made to serve the bench warrant from the 
burglary information on the appellant for almost



29

5 years, even though his whereabouts were known, 
it seems obvious that there was little merit in the 
burglary information. The Information charging 
the appellant with murder was not filed until 
about a month before the appellant was scheduled 
to be released from the Missouri State Peniten­
tiary and gain his freedom. The prosecuting at­
torney, W. M. Lee, admitted that the filing of the 
Information was partially due to the fact that the 
appellant was about to be released as is reflected 
in the record: (R. 21).

“Q. Did you received (sic) any new informa­
tion which caused you to file an informa­
tion or was it filed solely because you 
knew he was going to be released from 
the penitentiary in Missouri?

A. Probably a little of both. I wanted to 
get Beckwith to stand trial under the 
charge and I thought the State had suffi­
cient evidence to bring him to tria l!”

Even though the appellant has been under in­
vestigation for the alleged murder of Mrs. Fuller 
ever since the prosecutor took office on January 1, 
1955, the matter of the appellants possible involve­
ment was never presented to a grand jury nor was 
there ever any kind of a preliminary hearing be-



30

fore a judge or magistrate. (R. 20). The undis­
puted facts show that W. M. Lee, the Prosecuting 
Attorney, is the party who made the decision to 
charge the appellant with a capital crime and he 
will also be the person who will represent the State 
of Arkansas in seeking a conviction which could 
possibly lead to a death sentence for the appellant. 
(R. 26). This is the kind of a situation which 
counsel argued against in the first point herein­
above and it should be quite clear to anyone that 
to permit such a situation as this to pass is to say, 
in effect, that Arkansas will permit the prosecut­
ing attorney to serve as either a one-man “grand 
jury” or as the hearing magistrate in the very 
same case in which he will also serve as the prose­
cutor. This is such a fundamental denial of “pro­
cedural due process” that it violates those guaran­
ties as provided in the Fourteenth Amendment to 
the Constitution of the United States. As though 
this was not enough of a denial of due process of 
law, the prosecuting attorney did not present the 
matter of the filing of an Information with the 
circuit judge but filed it with the clerk of the Mon­
roe County Circuit Court and the clerk thereupon 
issued a bench warrant for the arrest of the ap­
pellant without any order from the circuit judge. 
(R. 18 & 30). A review of some of the testimony



31

by the prosecuting attorney, W. M. Lee, shows the 
following: (R. 17).

“Q. Did you at any time present the Infor­
mation to the Judge of this judicial cir­
cuit?

A. No, I did not show the Judge the infor­
mation. He sees that at the time the de­
fendant is brought to trial or I presume 
today on these motions.”

The circuit Clerk of Monroe County, Jno. G. 
Roberts, testified as follows: (R. 30).

“Q. Now Mr. Roberts I want to ask you why 
you issued this bench warrant?

A. Mr. Lee filed the information in my of­
fice and I issued the bench warrant.

Q. Did you have any kind of an authoriza­
tion or court order from the Court to is­
sue that bench warrant in this case?

A. Not that I know of. It is just routine 
with this office when the Prosecuting At­
torney files an information, I issue a 
bench warrant.

Q. In other words, Mr. Lee filed the infor­
mation and told you he wanted a bench



32

warrant and you issued the bench war­
rant?

A. I did.

Q. And the matter was not presented to the 
Judge at all?

A. No.”

The Arkansas Statute is not clear on whether 
or not the prosecuting attorney must seek leave of 
the court before an information can be filed. The 
only statutory direction which can be found is that 
provided in Section 43-806 which has already been 
set out herein in full, supra. This statute is very 
much in line with similar statutes in the majority 
of the states and further supports the view that
some kind of a preliminary hearing must be held 
before an information can be filed.

“In a majority of the jurisdiction in which 
prosecution by information is permissible, it 
is the statutory rule that informations can be 
filed by the prosecuting attorney only after 
the defendant has been accorded the right to 
a preliminary examination, unless he waives 
such examination, and then only when he has 
been held for tria l; that is, if he has been dis­
charged by the magistrate, the prosecuting at­
torney can proceed only by indictment.” U 
Wharton’s Criminal Law and Procedure 517.
In those jurisdictions where the statute sped-



33

fically states that leave to file an information is 
necessary, it has been held that “an information 
must be set aside if leave to file it has not been 
granted by court, or if before filing thereof de­
fendant had not been legally committed by a mag­
istrate”. State ex rel. Juki v. District Court, 107 
Mont. 309, 84 P. 2d 979. See also 120 A. L. R. 
353.

Even though there is not much statutory 
direction for procedure in the filing of informa­
tions, the Supreme Court of Arkansas held in 1944 
that “in the absence of statutory mandates relat­
ing to an information, laws pertaining to indict­
ment are applicable when not inconsistent with the 
nature of the process GEOATES v. STATE, 206 
Ark. 654, 176 S. W. (2d) 919. See also THUR­
MAN v. STATE, (1947) 211 Ark. 819, 204 S. W. 
(2d) 155.

The procedure in the filing of informations 
should follow as closely as possible the procedure 
in the presentment and filing of indictments. Sec­
tion 43-1005 of the Arkansas Statutes states that 
“The indictment must be presented by the foreman 
of the grand jury to the court and filed with the 
clerk, and remain in his office as a public record.” 
This statute has been construed many times to 
mean that the indictment “is filed in contemplation



34

of law when it is returned to open court, presented 
to the court, and deposited with the clerk to be kept 
with the papers in the case”. Banks v. State, 185 
Ark. 539, 48 S. W. (2d) 847. See also 82 A. L. R. 
1051.

It should be remembered that the information 
in the instant case was not presented or filed with 
the court but was filed with the clerk of the court. 
A diligent search has been made to ascertain 
whether or not a similar point has ever been de­
cided by the Arkansas courts and in the one ease 
found in the reports, the court did not pass on the 
question, saying that the objection had been waived 
and stating that “we do not determine whether 
in any case the filing of an information with the 
clerk, as distinguished from it’s presentation in 
open court, wmuld be sufficient. Since informality 
does not avoid the process, irregularities may be 
waived”. OGLES V. STATE, (1949) 214 Ark. 
581, 217 S. W. (2d) 259.

There has been no “waiver” by the appellant 
and he therefore urges the court to hold that in the 
absence of such a waiver, it is mandatory that an 
information be filed in open court and not with the 
clerk, as stated in Section 43-806 of the Arkansas 
Statutes The entire procedure in the filing of the 
information in this case was so arbitrary and un-



35

lawful that the court should have granted the ap­
pellant’s motion to quash the information.

II
THE COURT ERRED IN OVERRULING AP­

PELLANTS MOTION FOR DISCHARGE 
BY REASON OF HIS HAVING BEEN 
HELD IN JAIL BEYOND THE THIRD 
TERM OF COURT WITHOUT BENEFIT 
OF TRIAL.

The final point relied upon for reversal by the 
appellant is that the court erred in overruling his 
Motion to Discharge Defendant and Quash Infor­
mation. (R. 10). The appellant listed the long 
delay in the filing of any criminal charges against 
him in the preceding point and he requests that 
the court bear in mind those facts in considering 
the point now raised. The information in this 
case was filed with the Clerk of the Monroe 
Circuit Court on July 5, 1962 which was 
during the April 1962 Term of the Monroe 
Circuit Court. (R. 3). The bench warrant 
was served on the appellant by the Sheriff 
of Cole County, Missouri on July 9, 1962 and he 
was returned to the Monroe County Jail to await 
trial on August 18, 1962. (R. 33).

The appellant has never yet been arraigned



36

and no plea has ever been entered in connection 
with the murder charge pending against him. 
When the November 1962 Term of Monroe Circuit 
Court opened on the 4th Monday in the said month, 
the defendant-appellant was not arraigned and the 
court had not set a trial date. Counsel for the ap­
pellant filed a petition on December 5, 1962 re­
questing an order to commit the appellant to the 
State Hospital for a sanity test and said order was 
entered on January 12, 1963. (R. 5). The super­
intendent of the State Hospital requested addition­
al time for the examination and the court allowed 
an additional 30 days on February 20,1963. When 
the April 1963 Term of Court opened, the appel­
lant was back in the Monroe County Jail but he 
still was not arraigned and no date was set for 
his trial. On October 8, 1963, appellant’s attor­
neys filed Motion to Quash Information and the 
hearing on the motion took place the same day. On 
that day, the prosecuting attorney attempted to ex­
plain the delay up to that time and drew a stipu­
lation from one of appellant’s attorneys which 
would indicate that the State has been ready and 
willing at all times to try the case and that the 
appellant’s attorney had been asking for the delay. 
(R. 50). Counsel concedes that this is a damag­
ing ‘‘stipulation” that is difficult to explain where



37

the record does not show any arraignment or set­
ting of the case for trial at any time. Regardless 
of any “stipulation” as to the delay prior to that 
time, appellant’s attorney made the following 
statement for the record at the conclusion of the 
October 8, 1963 hearing: (R. 54).

“WILEY BRANTON: For the record then 
the defendant now objects to any further 
delay of the trial of this case on the mur­
der charge and requests the Court to set 
a date for trial during the remainder of 
the April 1963 Term of the Circuit Court 
of Monroe County.

THE COURT: I will overrule that motion 
and set the case for the 11th day of De­
cember, 1963.

WILEY BRANTON: Note the defendant’s 
objections and save our exceptions for the 
record.”

The terms of the Monroe County Circuit Court 
begin on the 4th Monday in April and November 
and when the request for trial during the remain­
der of the April 1963 Term was made on October 
8, there was ample time for a trial to have been 
held prior to the 25th day of November which 
marked the opening of the November 1963 Term of



Court. In State v. Kuhn, 154 Ind. 450, 57 N. E. 
106, a statute similar to Arkansas Statute 43-1708 
was being applied to the case before that court and 
the court ruled that the judgment discharging the 
prisoner would not be reversed on the ground that 
the time of court was occupied in the trial of other 
causes when it was shown that at least eight days 
of the Third Term after defendant was admitted 
to bail were occupied in the trial of civil causes.

The right to a speedy and public trial is guar­
anteed by the Sixth Amendment to the Constitu­
tion of the United States, and Article 2, Section 10 
of the Arkansas Constitution requires that “In all 
criminal prosecutions the accused shall enjoy the 
right to a speedy and public tr ia l ____ ” The legis­
lature has defined the length of time during which 
a defendant must be brought to trial as shown by 
the Arkansas Statutes:

“43-1708. TIME ACCUSED MAY BE 
KEPT IN JAIL.—If any person indicted for 
any offense, and committed to prison, shall 
not be brought to trial before the end of the 
second term of the court having jurisdiction of 
the offense, which shall be held after the find­
ing of such indictment, he shall be discharged 
so far as relates to the offense for which he 
was committed, unless the delay shall happen 
on the application of the prisioner.”
The leading Arkansas case on both the right



39

to discharge under the above statute and the ap­
pealability from an order denying discharge is
that of Ware v. State, (1923) 159 Ark. 540. 252 
S. W. 934 There, the court stated:

“But, as its manifest purpose is to promote 
dispatch in the administration of justice, it 
must commend itself to the enlightened judg­
ment of everyone, who loves law and order as 
a wise as well as humane enactment. ‘Justice 
delayed is justice denied’, says Mr. Gladstone. 
It is highly important to the public weal that 
those accused of crime shall be brought to 
speedy trial in order that, if guilty, public 
justice may be meted out without delay” ; and 
further:

“It is also humane and just to the accused, 
who may be innocent, because it imposes upon 
the ministers of justice the obligation not to 
unnecessarily delay the trial of the charge 
which the state has lodged against him, and to 
afford him an opportunity to prove his inno- 
cense before he has been compelled to endure 
a prolonged punishment by imprisonment be­
yond the end of the Second Term after the 
term in which he was indicted.”
The appellant has for all practical purposes 

been held on this charge since August of 1957 when 
he was turned over to Missouri authorities. The 
delay in the filing of the information until 1962 
should be charged against the state as they de­
prived him of the right during those years to de-



40

mand a trial or to locate witnesses to establish his 
innocence for five full years, and it seems mani­
festly unjust to let 3 terms of court pass after the 
late filing of the information with the defendant 
still not having been brought to trial even though 
he was in jail and the court met. His Motion for 
Discharge should have been granted.

CONCLUSION

The appellant prays the Court for a careful 
review of the entire record in this cause and for a 
full but speedy review of the issues raised by this 
appeal to the end that he may be discharged with­
out the necessity of a trial.

WHEREFORE, appellant prays that the or­
der overruling his motions be reversed and that he 
be ordered discharged from custody or for such 
other relief as the Court may deem proper.

Respectfully submitted,

WILEY A.BRANTON
5 Forsyth Street, N. W.
Atlanta 3, Georgia
L. HOBSON MAHON,
Brinkley, Arkansas

Attorneys for Appellant