*1 v. State. Froman Sanders 2d 601 339 S. W. 7, 1960. delivered November Opinion $ Nance Nance, for appellant. Bennett,
Bruce Ancil Reed, M. Atty. General, Asst. Atty. General, appellee. Appellants Associate Justice. Robinson,
Sam *2 robbery. only convicted of the crime of witness appellants Mary that connects the with the offense is Salmon. In these circumstances if she was an accom- plice, proved the conviction cannot stand. The State night February that on the of 12, 1958, R. J. Wilson liquor was robbed of about in a store at $195 West Mem- phis. There is no evidence whatever which tends appellants except that committed the offense testimony Mary Salmon. She testified that she had known the defendants since that Marvin 1956; Sanders night February was her lover; that on the 12th she Memphis; and the defendants drove to that West she money they knew the defendants had no when went pistol glove that there; Marvin took a Sanders out of the compartment put of the automobile and it his under got that the two belt; men then out of the car but that stayed gone in the that car; the men few they pint liquor minutes and returned; had one-half stuffing pocket; and she saw one of them in his they liquor at knew that time that store; robbed the they she asked them if had hurt the man in the store. charged She testified that robbery she was with the prossed. involved here but later case was nolle She stated that she still loves Sanders; that he is the father penitentiary; of her child; is in the husband that she lived with another man named Chuck Tutor as present his at a wife, time when she to her married husband. She testified after the was com- apartment mitted she and the two men went to her Memphis money; they there men divided the presence. counted out on a table in her She denied got any part that she itof but stated Froman stayed apartment in her until about 2 or 3 o’clock in morning stayed and that Sanders there until the day. stepmother next She she told Sanders’ having about the crime been but no committed, told one year, else about it for more than a when she told the Memphis police. conclusively The evidence shows prosecuting as a matter of law the witness, Sal- is an mon, accessory
Ark. Stats. “An after § knowledge is a who after a full that a fact, magis- crime has been conceals it from the committed, protects person charged or harbors trate, [Emphasis ours.] or found of the crime.” undisputed According testimony, Mary Salmon robbery. knew at the time that men committed the She testified: they something you You knew
“Q. robbed liquor they you? knew robbed that store, didn’t A. sir. Yes, Memphis you You came back to
Q. *3 and counted you? money, currency the didn’t How was this or silver?
A. It was in bills and silver.” Immediately following she harbored apartment. Undoubtedly men in her an acces- she was sory accessory after the fact. An after an the fact is In Polk State, 36 Ark. the Court 117, v. ‘accomplice’, generally said: “An in full and accepted legal signification of in is one word, who, participates criminality in manner, of an act, legal propriety, whether he is in strict a considered, as principal degree, merely or the first second an as accessory State, before or after the In fact.” Stevens v. quoted ap- 111 Ark. 299, 778, S. W. the Court proval v. Jones, State 91 Ark. 154, as W. “ felony a follows: ‘. . . where has been committed, charged duty felon stands with the and it crime, is the persons, all who know or have reason to believe that he is guilty felony of a to arrest him. One with a full who, knowledge that the crime has been committed, harbors and protects guilty accessory is felon, and be punished principal whether such, offender Any arrested or not. other view of the statute would permit person unpunished go who has been flagrant harboring protecting of the most act of procured, felon before warrant of arrest could be ” or an indictment could be returned.’ The Court also is a said in the case: “There conflict of author- Stevens ity accessory after as to whether an the fact is
accomplice, hut decisions of court are to the rehearing is.” effect that he On the Jones Judge said: the statute under McCulloch “Under now unimportant knowledge it is is how the consideration, alleged accessory; it received is sufficient to con- stitute the offense if he at the time he harbors knows, protects latter has committed felon, felony named the indictment.” explain attempting why
In she more waited for year alleged than a giving after the crime was committed before police,
the information to the the witness, scared, she was but she said she was Salmon, not afraid of does not Sanders, indicate she was Froman, afraid and she stated she was police. gives explana- not afraid of the no fact, tion of her asserted fear. In Wharton’s Criminal Evi- p. 12th dence, Ed., Vol. said: “Nor is one through danger who fear of immediate to life or member conceals the commission of the crime. ordinarily, ‘a But aids who and assists in commission of crime or in measures taken to conceal protect it and the criminal, is not relieved from crimi- *4 accomplice nality by as an on account of fear excited danger threats or unless menaces, the be to life or mem- danger present nor ber, unless be and immediate [Emphasis ours.] .” above announced. . . In State, Henderson v. 174 Ark. 835, 836, 297 S. W. ‘‘ general the Court said: test determine whether accomplice a witness is or is not an is, could he himself principal have been for the offense, indicted either as accessory?” Mary or The witness, Salmon, indicted, was although prossed. the later indictment was nolle But certainly, according testimony to her own participation her in the offense was sufficient to sustain on such conviction an indictment if a had guilty. returned verdict In v. State, Havens 217 Ark. 2dW. approved said: 1003, the Court “We have the follow applied ing generally whether one is test accomplice: to determine charged person (as the an an accomplice) ‘Conld principal, accessory as a be convicted upon the aider the evi before or an and abetter fact, If a be sustained, dence? conviction could ” accomplice. . then be said to be an . .5 Ed., Underhill’s Criminal 5th Evidence, Vol. p. it is said: “The burden is on the defendant to for the witness state is usually by This is determined the court as question partici conflicting But if law. the evidence is pation of the witness the commission of the crime, proper the matter left should be to participation. under ’’ instructions as to intent and Here there par is no conflict in the evidence as to Salmon’s ticipation in the crime. She waited in automobile per near scene of the crime while the was petrated; per the crime committed; knew go apartment the two mitted men to to her and divide robbery; obtained in the she harbored one morning of the men until or 3 o’clock in day. until other the next being accomplice,
It established she is an question any is whether follows there is evidence corroborating appellants connecting with the crime. Ark. Stats. § “A felony conviction can not had in case of of an unless corroborated tending other evidence to connect the defendant with the commission of the and the offense; corroboration merely is not sufficient if shows that the offense was committed, and the . .” circumstances thereof. . corroborating
It will be noticed evidence must tend to connect defendant crime. *5 Corroborating evidence that the crime was committed details are not thereof sufficient. The corrobo rating independent given evidence must be of evidence by the In Underhill’s Criminal Evidence, p. 5th it is Ed., Vol. stated: test “The of suf- ficiency whether, to be has been corroboration of is eliminated of the if suffi- witnesses be the other of and the of the offense commission to establish the cient therewith.” the accused of connection crime; of the the details Mrs. Salmon knew True, phone from the tore the that the robbers it was shown say they the men that she heard testified wall. She phone of the rob- the victim Wilson, Mr. tore loose. money bery, denomination of the as to the testified robbery, that the testified and Mrs. Salmon taken apartment was of divided in her the robbers is ana- when the evidence denomination. But similar perfectly lyzed testi- it is clear if Salmon’s mony there not remain would eliminated, to connect the defend- evidence which tends scintilla of ants with crime. separate finding jury each returned verdicts
appellant robbery, in each but it is stated ver- agree punishment, jury on the dict that the are unable to punishment, leaving which to the court fix Appellants that the statute author- contend court did. punishment izing fix in certain cases the court to provides: Ark. § is unconstitutional. Stats. guilty, agree and fail to find verdict “When punishment or do not declare such inflicted, on punish- punishment they in their or if assess verdict, judg- and in all cases of a ment not authorized law, shall ment on the court assess and declare confession, punishment, accordingly.” and render pro- § Article 7 of the Constitution of Arkansas right by jury trial shall remain vides: “The shall to all cases at . . .” law, extend inviolate, provides: “. . . but crimi- if, Article 2, § opinion, prosecution, the court be divided in nal may, in its discre- which the trial shall be had before discharge jury, commit or bail the accused tion, said at the next term of trial the same “In all . .” Article court; 2, § .
703 prosecutions right enjoy criminal the accused shall public impartial speedy jury. to a trial . . .” Article 2, 21 “No shall be taken § imprisoned, or his liber- freehold, or disseized of estate, privileges; any ties or in manner or or outlawed, deprived destroyed liberty property, or life, of his or except peers by the or the law of the his land; . . .” great weight authority simi is that statutes punishment permitting to
lar ours to the court fix the under certain circumstances are not unconstitutional. agree Hamey, Mo. 67 We with that view. v. 168 State 620; State, W. Woods v. 130 Tenn. 169 W. S. S. Ky.
Since the judg- defendants with the crime is not corroborated, ment must be It so reversed. ordered. J., dissents.
McFaddin, George concur. JJ., Ward, Rose Smith join concurring. George I cannot J., Smith, Rose majority’s shown to conclusion that Salmon was accomplice as a matter of law. This did not witness complicity by turning admit crime, state’s sought evidence. On witness stand she to maintain her innocence and to convince the that it until was not being was counted her home that was certain explained a crime had been committed. She her failure to report by saying go the offense afraid to police. Although greatly her avowals of innocence say weakened cross I examination cannot that to were bound disbelieve her. Hence I think we should follow the rule adhered to in State, Jackson v. 193 Ark. “ appel 776, 102 546: In S. W. 2d view the situation, question lant was entitled have the as to whether she jury, was an submitted to the as it was one of subsequent law fact,... mixed unless the my accomplice.” conclusively she was events opinion properly submitted issue below court jury. *7 and agree, be reversed I that the case should however, giving its in as court trial, a new the erred remanded for per- jury By the No. 10. that instruction instruction Mary though the Salmon mitted to convict accused even an This instruction should found to be was majority correctly point given, not have for been Mary apart from Sal- whatever, out there is no evidence testimony, appellants that connects these mon’s given op- jury an crime. Hence the portunity should not have been proof. a base to conviction nonexistent opinion. joins this in Ward, J., dissenting. Justice, Associate Ed. F. McFaddin, presented I questions are several Since I that future reference for worthwhile think my I think dissent. state reasons for these reasons: be affirmed should Mary (1) as a matter was not Salmon jury question to fact for the decide It of law. was jury accomplice. If the not was an to whether accomplice, Mary then not an find that was should Salmon have corroborated. would not to be her Mary
(2) conclude that If the should Salmon accomplice, would have to be then was ample I was think there evidence corroborated; support verdict: corroboration to Mary (a) Salmon testified Marvin Sanders pistol glove compartment from the of his car as he took liquor store. B. Wilson started toward J. testified pistol him the man who robbed stuck his back. Wilson pistol. described the
(b) re- Salmon testified when Froman car, was, turned to the she asked where Sanders gone went Froman back and short time and Sanders him. returned with testified that one of Wilson the rob- enough bers after stopped long committing select a and that the other robber came whiskey bottle back for him. Mary Salmon testified after Froman and
(c) that he car, Sanders had re-entered Sanders stated had torn the wall in order telephone prevent off from It was police. Wilsons testified Wilson calling and other witnesses that was torn telephone wall. that Froman and Mary Salmon testified San-
(d) ders half currency, dollars, had over something $190 when quarters, counted the in her they presence. Wilson testified that took in currency, robbers $196 *8 half dollars, and quarters.
The corroboration did not show merely go to committed; crime was it went that Froman and Sanders had committed the in- particular robbery here volved and I think ; this evidence corroborates the testi- even if mony Mary Salmon jury had found was an accomplice. opinion in this case it concurring
there error in 10 by Instruction No. given Court. I find no error.1 misunderstanding So that there can no be about Instruction 10, copy by Court; given No. I 9 and 10 Instructions and I find
no error in them: COURT’S INSTRUCTION NO. 9. you “Therefore, if find evidence this case under the in- given structions herein Salmon was an crime, you following will then consider instruction:” COURT’S INSTRUCTION NO. 10. felony upon “You are instructed that one not convicted of a therefore, cannot, uncorroborated evidence of an vict unless You con- Mary Salmon, witness, defendants of said you by find her is corroborated other in the evidence tending case crime; to connect the defendants the commission of the merely and the corroboration is if not sufficient shows that you was committed and the crime circumstances thereof. are But corroborating instructed that weight the amount of such evidence and its solely you jury, ais matter for the if find that such witness positive evidence, circumstantial, has been corroborated other own, tending than her necting to show that crime was committed and con- commission, you justified its the defendants with will be convicting you defendants, provided believe them from all the beyond evidence case reasonable doubt.” of convic- the judgment I conclude Therefore, affirmed. tion should he Supply
Highway v. & Co. Commissioners Lumber Company. Helena Water West 2d 339 W. 1960. November delivered Opinion Dinning Dinning, <& for appellant.
Eugene Baker, Jr., L. P. James Schieffler appellee. *9 involves Johnson, Associate This ease Justice.
Jim & an action Lumber brought appellant, Highway by injunction Company, seeking mandatory Supply of Helena Water Commissioners West against appellee, meters fur- it to install water Company, requiring Subdivision, nish water lots in two Westwood situated within now development appellant, housing limits of West Helena. city of land acres In 1955 the appellant acquired twenty dedicated lots and platted fifty-seven the same into line of the North which Subdivision, it as Westwood maintains appellee No. where adjacent Highway water. The ample supply water main with 6" consisted appellant made development first