158 Ark. 487 | Ark. | 1923
(after stating the facts). We think the facts recited are sufficient to sustain appellant’s conviction. It is true he was not seen around the mash in the woodpile, but neither was Moore, who admitted his guilt; and we think that, if Moore was guilty, appellant was guilty also, for we think it fairly.inferable that appellant not only stood by and aided and assisted, but that he did most of the actual work.
The testimony of the officers that Moore showed them the bed on which appellant slept is admissible on two theories: (1) It was an accusation of guilt, which the jury might have found called for a denial by appellant if it was untrue (Davis v. State, 14 Ark. 170; Sheptine v. State, 133 Ark. 239). (2) Moore testified that appellant had nothing to do with the mash, and denied that appellant ever stayed at his house. The testimony was competent therefore for the purpose of contradicting Moore.
An exception was saved to the action of the court in telling the jury that, if appellant made the mash or beer, or was present aiding and abetting, or ready and consenting to aid and abet, in its manufacture, to convict him. The objection made to the.instruction was that appellant was indicted as a principal, and the instruction was therefore improper. Section 2311, C. & M. Digest, reads as follows: “All persons being present, aiding and abetting, or ready and consenting to aid and. abet, in any felony, shall be deemed principal offenders, and indicted and punished as such.” The instruction complained of was proper under this section of the statute, and, as we have said, there was testimony that appellant Was present aiding and abetting, if, in fact, he did nothing more.
An instruction numbered 7 was given which reads as follows: “In determining whether or not the defendant was interested in the making and manufacture of the mash or beer, as alleged in the indictment, you have a right to take into consideration the fact that he visited the home of the witness Moore in the night time, if you so find; the fact that he procured a horse and slide and moved a still away from the home, if you so find; his actions and conduct at the time; his statements to the officers, if any; and all other facts and circumstances offered in proof; and, if you find from the testimony beyond "a reasonable doubt that he was connected with the manufacture of the mash or beer, as charged, you should convict him.”
This instruction is substantially in the form of an instruction set out in the case of Benson v. State, 149 Ark. 633. We there said that it was not commendable to give an instruction in this form. The Constitution prohibits judges from charging in regard to matters of fact, and the judges should avoid the appearance of doing so. However, we said in that case that the facta stated were recited hypothetically, and that the consideration of the jury was not limited to those facts alone, and we declined to reverse the judgment, because, as we said (quoting from the case of Hogue v. State, 93 Ark. 316): “But the giving of such an instruction is not -prejudicial error where the court, in the whole charge, directs the jury to consider all the facts and circumstances proved in the case, and especially where, as in this case, the court instructs that ‘the facts and circumstances in evidence shall be consistent with each other and with the guilt of the defendant, and inconsistent with any reasonable theory of defendant’s innocence-.’ ”
We have in this case an instruction which was given there on the question of reasonable doubt.
The court properly refused to give an instruction numbered 10, which told the jury to disregard the testimony of the officers as to the statements of appellant in regard to hauling the still on the slide, and certain other statements, as the same had not been shown to have been made without the influen. of threats or fears or inducement held out to him at the time. The statements of an accused are presumptively admissible against him., Austin v. State, 14 Ark. 556; Youngblood v. State, 35 Ark. 35; Greenwood v. State, 107 Ark. 568; Dewein v. State, 114 Ark. 472.
It is only when the showing is made that his statements were not voluntary, or that they were induced by fear or hope of favor, that they are inadmissible. Appellant did not ask to have that question submitted to the jury. Upon the contrary, he made no confession at all, according to Ids testimony and that of Moore.
If, at the time this testimony was offered, the contention had been made that the confession, if such it may be called, had been procured by fear of punishment or hope of favor, then the court should, as a preliminary matter, have heard testimony on that question; and, if there had been substantial testimony showing that the confession was tainted, the court should have given cautionary instructions touching it, notwithstanding its admission. Shufflin v. State, 122 Ark. 606; Thomas v. State, 125 Ark. 267; Love v. State, 22 Ark. 336. But, in the absence of such a contention at the time the testimony was offered, the court properly refused to inject into the case an issue not raised by the testimony.
Upon the whole case we find no prejudicial error, and the judgment is affirmed.