Chenowith v. State

Conley Byrd, Justice. Appellant Raymond Chenowith was convicted upon 10 counts of forgery and 10 counts of uttering. His only contention for reversal is that the trial court failed to conduct a “Denno’ hearing- in accordance with Ark. Stat. Ann. § 43-2105 (Supp. 1967), outside the presence of the jury before admitting into evidence certain affidavits he had signed in the presence of his attorney. Mr. Harold Hampton, an employee of People’s Bank & Trust Co. of Russellville at the time of the occurrence, testified that he did not know how far in advance he knew he was going to Tulsa but that he knew he was going to Tulsa, because he was present when Mr. Irwin, appellant’s counsel, and Mr. Mobley, the prosecuting attorney, came into Mr. Barger’s office. (Mr. Barger is president of the People’s Bank & Trust Co.). He said that he and Mr. Irwin went to Tulsa to get Chenowith to admit forgery as far as he knew of the notes involved. Other testimony from the witness insinuated that some of the bank’s insurance was involved in the transaction. Mr. Hampton says that when they met Mr. Chenowith in a hotel in Tulsa, Mr. Chenowith went over the accounts and under instructions from his counsel signed the affidavits on the accounts that were not genuine and that on the accounts that he claimed were good he merely passed them on. There were several affidavits signed at the time. The affidavits introduced identify the note involved by number and state that the name signed to the note is not genuine or authorized by the maker, ‘ ‘ that in fact said purported signature was affixed to said instrument by Raymond Chenowith without the knowledge or authority of the purported maker and was executed for ‘Glen’s Used Cars’ for the purpose of obtaining money and credit from People’s Bank & Trust Co. of Russell-ville, Ark. in the amount of the principal and amount reported to be due on said note.” Ark. Stat. Ann. § 43-2105, supra, provides: “Issues of fact shall be tried by a jury, provided that the determination of fact concerning the admissibility of a confession shall be made by the court when the issue is raised by the defendant; that the trial court shall hear the evidence concerning the admissibility and the voluntariness of the confession out of the presence of the jury and it shall be the court’s duty before admitting said confession into evidence to determine by a preponderance of the evidence that the same has been made voluntarily. ’ ’ Under the statute and the affidavits here involved, the trial court erred in not determining the voluntariness of the confessions before they were admitted into evidence. For this reason the cause is reversed and remanded. Reversed and remanded. Fogleman, J., concurs.