Austin v. State, CR

• Decision Date: 21 May 1973
• Docket Number: No. CR,CR
• Citation: 494 S.W.2d 472,254 Ark. 496
• Parties: Jerry Edward AUSTIN, Appellant, v. STATE of Arkansas, Appellee. 73--9.
• Court: Arkansas Supreme Court

Page 472

494 S.W.2d 472

254 Ark. 496

Jerry Edward AUSTIN, Appellant, v. STATE of Arkansas, Appellee.

No. CR 73--9.

Supreme Court of Arkansas.

May 21, 1973.

Skillman, Durrett & Davis, by Vincent E. Skillman, Jr., West Memphis, for appellant.

Jim Guy Tucker, Atty. Gen., by Clarence Walden Cash, Asst. Atty. Gen., Little Rock, for appellee.

HARRIS, Chief Justice.

Appellant, Jerry Edward Austin, was charged with the offense of murder in the first degree, it being alleged that he did 'feloniously, wilfully, deliberately, with malice aforethought and with premeditation and deliberation shoot and kill Mack Crawford Howell, or did stand by, aid, abet, assist, advise or encourage another in the shooting and killing of the said Mack Crawford Howell'. On trial, Austin was convicted and sentenced to life imprisonment in the Arkansas Department of Correction. From the judgment so entered, Austin brings this appeal. For reversal, two points are asserted, first that the court erred in not directing a verdict for the defendant, it being contended that the evidence was not sufficient to support a conviction, and second it is alleged that the court erred in not declaring Garth W. Stewart, a witness on behalf of the state, an accomplice as a matter of law. We proceed to a discussion of these points.

According to Mrs. Nell Howell, wife of Mack Crawford Howell, they were residents of West Memphis, having lived there fifteen or sixteen years. At about 3:30 A.M. on June 14, she was awakened from sleep by a knock at the door. Mrs. Howell was sleeping with her youngest son in his room because he had been ill the night before. As she walked to the hall toward the door, her husband, who had been sleeping in the bedroom, having also been awakened, was putting on his trousers. Mrs. Howell pulled back the curtain and saw the figure of a person outside, opened the door and said, 'Yes?' and the person asked, 'Is Mack home?' By the time she had answered in the affirmative, her husband had reached the living room and came on to the door. He turned on the living room light and she stepped back since she was in her gown, and heard someone say, 'Mack', and as she went to get her robe, she heard words, 'Step around the corner'. After putting on her robe, she came back, but could see no sign of anyone; she then went to the drive, but still could see no one and as she reached the front door she heard three loud 'claps'. Subsequently, she called a neighbor from the bedroom telephone. They looked around the house and she decided the police should be called, endeavored to use the telephone in the kitchen, but it was 'dead'. In searching around the house, it was found that one of the telephone wires had been cut. Mrs. Howell was subsequently advised that her husband's body had been found in a nearby field.

Police officers testified about the finding of the body and they related their investigation in the neighborhood. Howell's body contained three wounds to the left side of the face, and two other wounds to the left shoulder, and three bullets were removed and turned over, with other items, to the F.B.I. laboratory in Washington, D.C. The officers received a telephone call from Savanna, Tennessee, which proved helpful in furnishing a lead and further investigation indicated the involvement of appellant, Jerry Austin, and his wife, Linda, who lived next door to the Howells, Gene DuBois, cousin of appellant, and Garth W. Stewart. In trying Austin, the state never contended that appellant actually fired the shots that killed Howell, but only that he planned, aided, and abetted DuBois in perpetrating the crime. In other words, it was contended that Austin was an accessory before the fact, which, of course, under our statutes, means that, if guilty, he was guilty as a principal.

The main witness for the state was Garth W. Stewart, twenty-five years of age, and a resident of Cortland, Alabama. Stewart testified that he had known DuBois for two or three months; that he met Austin and wife on June 13 at Waterloo, Alabama at a time when the witness was with DuBois. He said that Austin wanted to return to his home at West Memphis and agreed to pay Stewart $35.00 if the latter would use his car and take the Austins to West Memphis. Stewart agreed, the parties first stopping at Savanna. Tennessee, the home of Linda Austin's parents. This occurred between 8:00 and 9:00 P.M. When they left Savanna, Mrs. Austin drove the car, her husband and DuBois sitting in the front with her. Stewart lay down in the back seat and went to sleep and did not awaken until they pulled into a truck stop at Memphis. At that time, according to the witness, appellant was driving the car. All four went into the truck stop, ate a sandwich, Stewart noticing that the time was about 2:30 A.M. They left from there and went to the Austin house in West Memphis. Stewart heard Austin point out to DuBois a stop sign, which it later developed was located at the intersection of Jackson and Woods in West Memphis and also heard Austin tell DuBois where Mack Howell lived. After going into the Austin house, Stewart testified that he went into the kitchen and drank a cup of coffee with Mrs. Austin while appellant and DuBois went on towards the back of the house through a hallway. When they returned, DuBois was putting on a black shirt over his other shirt. As DuBois started out the door, Stewart got up to go with him, reached the door, but Austin caught him by the collar of his shirt, jerked him back and he observed a pistol in Austin's hand, the latter stating, 'You learned too much as it is. Furthermore, you learned the whole details.' He said that DuBois came back to the door and Austin handed him either a knife or wire pliers, told DuBois to go up the side of his house, and stay in the dark. Subsequently, Austin directed the witness to get into his (Stewart's) automobile, Stewart getting under the wheel and Austin sitting on the passenger side. He was then directed to back the car out of the driveway, but not to turn on his lights; further, he was told to stop the car 'a little piece past the second house'. The witness said that appellant then told him to cut off the motor and give to Austin the car keys, and appellant 'then got out and went out around behind the car'. Stewart stated that the porch light came on at the house and he observed DuBois standing on the front porch and that Austin was standing between the car and the house. Austin was wearing a light colored shirt. Stewart observed a woman come to the door, close it, and then a man came to the door, put out his hand as if to shake, hands, and the witness stated:

'Then DuBois motioned like this, with his hand, then DuBois and this man jumped off the porch and started running towards that bush or tree where Jerry Austin was standing at, then when they got even with him, Jerry got on one side and Gene on the other side coming on . . . * * * Then come on to my car, Jerry or Gene one opened the back car door, I don't know which one it was opened the back car door. And told this man to get in. He got in, Gene DuBois got in, then he throwed me the key, then Jerry said, 'Be sure to put the gun where I told you to put it at."

The man got into the back seat, DuBois getting in after him and then handing the keys to Stewart. DuBois then told Stewart to 'crank up and go on'. Austin stood at the car until it left. The witness said that the man stated that he had never seen either of the two (Stewart and DuBois) and asked what they wanted. Subsequently, he begged DuBois not to kill him. As Stewart started to make a turn, the man (Howell) jumped from the back seat and began to run out across a field. DuBois fired a shot and jumped out of the car following Howell. Several shots were fired and DuBois ran back to the car, telling Stewart, 'All right, let's go.' He said that DuBois threw the pistol out of the car by the stop sign where Austin had told him to throw it. According to...