167 S.W.2d 503 | Ark. | 1943
Appellants were convicted of the crime of arson and have appealed. The barn of Mrs. Mary Massey was destroyed by fire about two-thirty, Sunday morning, April 19, 1942. The next day tracks were found leading from the highway to the barn lot and then back to the highway. Jason Nolan's shoes were fitted into these tracks, and he admitted that the shoes were his and that he wore them the night of the fire. At the trial of the case, Nolan's alleged confession was introduced. While the appellants were in jail, a dictaphone was secretly installed; and witnesses who listened testified to the secret conversation between the two appellants involving, among other matters, a statement that Nolan would confess and that Guthrie would try to get him off easy. Other facts appear hereinafter.
We discuss separately the appeal of each appellant.
I. Nolan's Appeal
Appellant Nolan contended that his confession was not freely and voluntarily given, and that the trial court erred in admitting it in evidence. When the confession was offered by the State, the question of its admissibility was heard by the court in the absence of the jury, and forty pages of the transcript are devoted to this evidence. Then the trial court admitted the confession in evidence, but cautioned the jury in part: "In this case at bar, here is the usual and ordinary conflict in the testimony where defendant repudiates or undertakes to repudiate an alleged confession. . . . The court is not presuming to pass on the testimony or credibility of the witnesses. That is what we have a jury for. Therefore, the court is ruling that it is a matter for the jury; and whether or not this confession is freely and voluntarily made will be submitted to the jury." Then there was an instruction to the same effect along with the other instructions. Thus the learned trial court followed *105
the practice approved by this court in a number of cases, and there was no error in admitting the confession. Charles v. State,
The confession, coupled with the proof of the tracks and the other evidence, was sufficient to support the conviction. Graham v. State,
We, therefore, conclude that there was ample evidence to sustain Nolan's conviction, and, as no error appears, the case against him is affirmed.
II. Guthrie's Appeal
The appellant, Carolus Guthrie, urges (1) that his motion for severance should have been granted, and (2) that the admission of the Nolan confession was fatally prejudicial to him, and (3) that there was not sufficient evidence to sustain his conviction.
1. The severance question. — Appellant Guthrie moved the court to allow him a separate trial, and this was overruled, and the action of the court is assigned as error. Prior to the adoption of initiated Act No. 3 of 1936 (Acts of 1937 p. 1384), a defendant jointly indicted with another was entitled to a severance as a matter of right; but since the adoption of the said initiated Act, the granting of a severance is within the sound discretion of the trial court. Section 3976 of Pope's Digest. No evidence appears in this record which would indicate that the trial court abused its discretion in refusing Guthrie's motion for severance.
This same question was before this court in the case of Bennett and Holiman v. State,
2. The matter of the confession. Appellant Guthrie contends that when the alleged confession against Nolan was introduced, the jury, by reason of human nature, would consider it as evidence against Guthrie, and that no cautionary instruction of the court could cure this situation. A similar contention was unsuccessfully made in the case of Lindsey v. State,
Then at the conclusion of all the testimony, the court gave Carolus Guthrie's instruction No. 2, telling the jury that nothing in the confession would be considered by the jury concerning the guilt or innocence of Carolus Guthrie.
We, therefore, conclude that there is no merit in appellant Guthrie's contention about the admission of the confession being fatally prejudicial to him.
3. The sufficiency of the evidence. — Finally appellant Guthrie insists that there was not sufficient evidence to take the case to the jury on the question of his guilt. We find that this contention is not well taken. Witnesses testified that in the whispered conversation in the jail the two appellants discussed the plan to let Nolan confess and Guthrie to try to get him off; and that they also discussed the number of animals that were in the barn at the time it was destroyed by fire; and that they also discussed whether or not they had met Mary Massey on the road; and that they expressed doubt as to whether or not they would receive the $50 that they were to be paid for burning the barn. The testimony that Nolan and Guthrie were to receive $50 for burning the barn shows motive and intention and is a circumstance to show malice. Mrs. Mary Massey testified that while she was driving to the barn as it was burning she met the defendant Carolus Guthrie driving his car away from the scene of the fire.
Thus, there was sufficient evidence to take the case to the jury over the appellant Guthrie's contention of an alibi and his contention that if he was seen driving away from the fire he was at most an innocent drunken driver who had taken Nolan out to look for some whiskey. In the case of London v. State,
It, therefore, follows that the judgment against Nolan and the judgment against Guthrie must each be affirmed, and it is so ordered.