*1 аbout, even though his denial of guilt conclusive upon the prosecution.
Reversed.
Fogleman, J., concurs. A. Fogleman, Justice, I concurring. concur John in the result reached in this case and the majority opin- ion. I add would that I am of the opinion the search was also invalid as to the clothing appellant because evidence, was mere and no then authority existed for issuance aof search warrant for this type evidence. My views are expressed in a Fer- concurring opinion in guson v. 138 (1970), S. 458 W. 2d 383. knife, course, was allegedly an instrumental- ity crime, and a valid search warrant for it would hаve been authorized. SWEATT STATE of Arkansas Alfred
Jimmy
convicted drug, boy. jury 14-year-old White, fixed The a to Rоbbie penitentiary for punishment the confinement in at the argues, primarily, appellant years. the reversal' five For support proof that conviction and the the does not that the court erred proof allowing the to introduce in State of other offenses. testimony sustain sufficient to
Robbie was White’s bought tablet testified that LSD the verdict. He paid (though $3.00, on credit he never from Sweatt for strength debt). the time told him the the At the Sweatt micrograms. said that of the LSD when he took the tablet it caused was 300 Robbie tablet trip” “go
him to a on day. for He vision was messed about also said that his up, things right, he couldn’t do he felt dead. The justified concluding jury in was from Robbie’s that the tablet LSD that in that Sweatt said was fact it was.
Upon point appellant right in the second the permitting his contention that the court erred prove by State to other offenses committed Sweatt. prosecution court allowed the to introduce much testi- mony showing marijuana that had at his Sweatt had apartment fact, had In sold it. as Moore v. Ark. S. W. offenses other 2d actually charge proved than in more detail was being tried. was Our basic rule stated Alford (1954): per- S. “The W. State is not
mitted to adduce evidenсe of other pur- offenses that is a crim- pose persuading jury accused inal to be therefore likely charge short, In under investigation. proof other crimes is never admitted when only its is to relevancy show character, is a man bad prisoner addicted crime.” In the case at bаr issue jury whether Sweatt had sold Proof LSD Robbie White. that Sweatt had sold had on other occasions marijuana relevancy dealt except show Sweatt had before and hence drugs to have so likely again. done That precisely type that must be excluded. proof *3 crimes, then, If Swеatt was of other we as said in Alford, "each be may examined in a court separately law, punishment may be those imposed with the In required established alone certainty. way this can we the avoid elements unfair surprise and undue that prejudice necessarily attend trial in by accusation trial facts a place upon demonstrated reason- beyond able doubt.”
The also appellant that the argues court erroneously allowed prosecutor the to ask and to leading questions adduce hearsay the explain absence aof witness. Since those matters not apt to arise upon a new trial we find it unnecessary to them. discuss matter, however,
There is one other that be must passed in view of upon, for a The necessity retrial. court instructed the that jury Robbie an White was accomplice alone, and that therefore his tеstimony with- corroboration, out could not a support conviction. Stat. Ann. (Repl. 1964). 43-2116 § error,
The of that giving instruction was for Robbie White was an accomplice LSD. selling of the (There is alternative that of proof charge, In Henderson v. bartering LSD.) 174 Ark. S. W. 836 (1927), we discussed at some the general length principles governing determination of who is and who is not an accomplice. accomplice Basically, one who or commits aids of the commission crime with the defendant which From that charged. be himself who could opinion: is one "An defendant, against charged crime convicted accessory. principal That means convicted either as being being investigated . . . The crime crime of the investigaged possessing a the crime in this case was liquor. still, The witness and not the manufacture liquor, in the manufacture of Goff was an thereby at the aided and he did work still becаuse liquor. manu- in the manufacture of But assisted possession, he did crime from is a distinct facture nothing, shows, far as the record that indicated anything possession did or control or that he he had except appellant. for the to work as a servant else engaged "It not sufficient that a witnеss charged person in an offense than other with the being evidence, tried, he is but one for which accomplice, him an order to make must show particular aided and assisted crime investigated, being and not in other crime. some [We upon Kentucky language:] then commented a this person bought lottery ticket violated purchasing lottery law, the crime of a a ticket was lottery different crime from ticket.” *4 narcotics, uniformly buys who is held that one It intoxicating liquor, an ac- other contraband is not complice obviously article, is he of the for sale selling to As rather not himself. the California court put accomplice graphically distinction, the to be an as in the same relation to the crime one "must stand person charged approach it from the therewith and must People Poindexter, 51 Cal. the direction.” v. 2d same certainly buyer (1958). 142, A and a seller 330 P. 2d 763 poles. opposite approach from transaction respect the fundamental rule with Wharton states goes give practical buyer and then on to and seller a person narcotics whom for the doctrine: “The basis accomplice is of the are sold is not аn defendant selling purchaser with the narcotic. Nor is the accomplice being prosecuted liquor of an of a defendant # * * holding liquor. such reason for 654 purchaser accomplice
that the that the is not the of the seller
purchaser, guilty any guilty crime, if being a crime distinct from that for for which the seller is proseсuted. practical consideration, almost As a other con impossible clusion it would render to secure person charged illegally conviction a with vend ing intoxicating liquors, unless such sale made in was presence of disinterested witnesses.” Wharton’s (12th 1955). Evidence, ed., Criminal § 456 Directly point holding are our cases that purchaser accomplice liquor being unlawfully an sold is not seller, being charged
of the where the latter is 344, with State, 124, sale. unlawful Williams v. Ark. 129 (1917); 196 S. W. Wilson v. S. W. 125 187 (1916). significance that, 440 can find We in the fact buyers decided, when those two cases were actually guilty making illegal pur of no оffense possession on, intoxicating liquor chases. Later was of such Digest offense, an also & § made C. M. 6169 purchaser but we adhered to our rule that the not was accomplice the sale. Rich v. (mem.), (1928). S. W. 2d suggestions We mention two should other that during were made the discussion of the at our First, governing conference. statute makes unlaw- person possess, exchange, give, use, sell, ful a dispose barter, or otherwise of LSD. Ark. Ann. Stat. (Supp. 1969). suggested § It was Robbie 82-2110 that accomplice guilty White was an because separate possessing by offense denounced the same statutе: suggestion.
LSD. We find no merit in that long separate, long As as the offenses are and as guilty principal asserted offense trial, on it makes no difference by of a offense different defined the same statute. People App. Stone, Cal. P. 2d *5 Tennyson, (1949); 158, State v. Minn. N. W. 212 (1942). 833, 139 A. L. R. 987 Secondly, suggested regard it that we should controlling precedents holding our cases that one property accomplice an who receives stolen of solely pre- adopted thief. that view because we had We viously accessory fact held that one who is an after the accomplicе. necessary an Hence we hold found it goods that the receiver of stolen was an thief, former since the was then held to be an accessory Murphy State, after fact. v. Ark. (1917). Moreover, S. W. 585 as we observed (1921), Hester v. S. one W. goods, knowing they stolen receives purpose stolen, sаme,” helping dispose “for the accomplice. inis of an lan- attitude In the guage proaches ap- quoted court, earlier, of the California direction,
the crime from the same because participants depriving both his owner of true property. Clearly having buy- our cases to do with the ing directly selling intoxicating liquor more are much point dealing receipt than those with property. stolen are, firmly stated, accomplice
We for the reasons convinced that Robbie White was not an supra, points contrary Wharton, out, LSD. As impossible view would rendеr it almost the State drugs, secure for the convictions unlawful sale of un- liquor, lawfully taxed or other articles that cannot be adopt sold. We have no inclination to mani- rule so festly unsound. Reversed. J.,
Fogeman, not participating.
Byrd, J., dissents.
reversal,
Conley
I concur
Byrd,
Justice.
portion
opinion
dissent as to the
Robbie
that holds
accomplice.
White was
recognized
person
test as to whether a
is an
Carraway
Murphy
is set forth in
Alias
language:
The for not reason that a prosecution intoxicating in a for sale of liquors 361, stated in Foster v. 45 Ark. (1885), language: in this buyer liquor,
“The however, although act, offense under this he in aids procures making of the sale. The has statute only marked the seller as the ‘In criminal. cases prohibita, mala on requisite penalty imposеd the fact that the only parties one of two whose concurrence offense,
to the commission of the protection the statute was made for the of the other party, generally regarded culpable who is as the less repeatedly two, good of the ground has been considered giving exempt- for the statute a construction ” ing party liability.’ not named from criminal The case of Rich v. S. W. upon by majority holding relied as purchaser not an when had also violated by purchase support law does not in statement majority opinion. Digest In fact C & M is not § opinion. reading even mentioned Furthermore, a supra, only § shows made it unlawful possess beverages transported one to in interstate bowling stand, commerce alley, at a drug store, fruit livery any stable or any club or room club social organization. or fraternal 82-2110) question (Ark. here in Stat. Ann. § law
provides: any except person,
“It shall bе unlawful pos- use, provided possess, herein, in one’s to have sell, session, or to exchange, give attempt give another, to barter or otherwise dispose (1) lysergic of: acid, (3) acid (2) (d-lysergic diethylamide), LSD DMT (N-N-dimethyltryptamine), (4) any compound, mixture or preparation which is physiologiсally above similar listed any drug (1), (2) (3) (5) its effect on the central nervous system, salt or derivative of listed in any drug (1), (2) and (3).”
As can be seen from above statute the seller is In criminal. fact the user and only possessor equally as condemned. The law have written could been the user and Act protect it was not. possessor, 590 of has remedied the defeat foregoing act the act of by reducing using possession *8 misdemeanor. above,
For the reasons set out I that Robbie conclude White accomplice, trial court properly so instructed the furthermore there jury no evidence to competеnt convict With appellant. respect cor- public policy dealing with the roboration of evidence of I can find accomplices, reason stricter evidence to convict a thief require than to convict a violator. The of the drug absurdity distinction majority’s betweеn two can be demon- strated of a thief having who steals drugs more than value sells them to one $35 knows them to be stolen. Under the majority opinion of the be purchaser would insufficient convict the thief of to convict larceny sufficient thief of Since the receiver selling drugs. and possessor receiving stolen would be a felon drugs under of stolen act and a goods felon as possessor under act, I am at drug a loss to explain majority’s distinction.
For the reasons stated I dissent. respectfully