Baldwin v. State

• Decision Date: 05 July 1915
• Docket Number: 86
• Citation: 178 S.W. 409,119 Ark. 518
• Parties: BALDWIN v. STATE
• Court: Arkansas Supreme Court

178 S.W. 409

119 Ark. 518

BALDWIN v. STATE

No. 86

Supreme Court of Arkansas

July 5, 1915

Appeal from Sevier Circuit Court; Jefferson T. Cowling, Judge affirmed.

Judgment affirmed.

Geo. W Richardson, A. D. DuLaney and Otis Wingo, for appellant.

1. A continuance should have been granted; defendants were unduly hastened to trial. 94 Ark. 545.

2. The evidence is legally insufficient to support the verdict.

3. An alibi was proven.

4. The court erroneously excluded testimony material to the defense. Kirby's Digest, § 3135.

5. The remarks of the State's counsel were prejudicial.

Abe Collins, prosecuting attorney, for appellee.

Argues the facts and contends that the evidence is ample to sustain a conviction, and that there are no errors of law.

Wm. L Moose, Attorney General, and John P. Streepey, Assistant, for appellee.

1. The continuance was properly refused. 60 Ark. 161-7; 108 Ark. 594; 118 Ark. 402-9; 79 Id. 594; 82 Id. 203; 86 Id. 317; 89 Id. 46; 100 Id. 149; 103 Id. 119.

2. The evidence fully sustains the verdict. 109 Ark. 130; Ib. 138.

3. There was error in excluding testimony. 80 Ark. 201; 86 Id. 108.

4. There were no prejudicial remarks.

OPINION

MCCULLOCH, C. J.

The defendants, Hood and Jim Baldwin, were convicted of robbing the Bank of Gillham, a banking institution in the town of Gillham, in Sevier County, Arkansas. The defendants are brothers, and reside in the State of Oklahoma, about seventy or seventy-five miles from Gillham, and about ten miles from the town of Bismark, Oklahoma. The bank robbery occurred about 10:30 o'clock in the morning of Wednesday, March 3, 1915, the president of the bank, Dr. B. E. Hendricks, and Noah Rodgers, the bookkeeper, and a Mr. Sinclair being in the bank at the time. It was a very dark, rainy day, and at that particular hour the rain was pouring down in torrents. Two men walked into the bank, and when they approached the cashier's window, Rodgers, the bookkeeper, walked up to the window to wait on them, supposing they were customers. The men leveled their pistols at Rodgers, commanding him to throw up his hands, and they also pointed their pistols at Hendricks and Sinclair, who were sitting at the stove behind the railing, and compelled them, too, to throw up their hands. One of the men walked behind the railing and searched Hendricks and Sinclair, the other one remaining at the window. They threw down a sack on the floor and commanded Rodgers to go into the vault and get the bank's money and put it in the sack, which Rodgers did, pursuant to the command. He got the sum of $ 994.94, which was placed in the sack and made way with by the robbers. The robbers, when they secured the booty, required the three men in the bank to accompany them out into the street to a horse rack where the robbers had hitched their horses. The three men were required to walk on up the hill away from the horse rack, which they did for a distance of twenty-five or thirty yards, and the robbers mounted their horses and made good their escape.

On Sunday, March 7, John Ross, a police officer, and J. G. Parker, a deputy sheriff, started out from Gillham to trail the robbers, Ross testifies that he saw the men as they galloped away and recognized one of them as Hood Baldwin, and that a short time afterward, during the same day, he examined the tracks of the horses at the rack and followed the tracks out of town as far as the Rolling Fork creek, and the next day took up the trail again and followed it about fourteen miles. He and Parker claim to have started the trail of the horses a few miles out from Gillham, along the public road, and followed it into Oklahoma, losing it at or near Glover creek. From there they went to Broken Bow, Oklahoma, thence back, in company with a couple of Oklahoma officers, to the town of Glover, and thence to Golden, and from there to the home of Louis Baldwin, a brother of the defendants. The next day they went over to Jim Baldwin's and found him and Hood Baldwin and a man named Anderson there, and arrested all three of them, and brought them back to Gillham.

Ross and Parker testified, as before stated, that they followed the tracks of the horses to Glover creek, and that the track of the larger horse was not seen on the other side of that creek, but that they picked up the track of the smaller horse on the other side of the creek. They found a black pony or horse at Jim Baldwin's, which answered the description of the small horse, and carried it back to Gillham with the prisoners for identification.

The defendants are identified by Rodgers, Hendricks and Sinclair as the men who entered the bank and robbed it. Rodgers positively identifies them both. Hendricks is positive in his identification of Jim Baldwin, but less positive as to Hood. Sinclair is positive in his identification of Hood Baldwin, but stated that he was not so positive in his identification of Jim Baldwin. The men who robbed the bank are referred to by these witnesses as being of different sizes, one of them being spoken of as the "big robber," and the other as the "little man." In their identification they speak of Hood Baldwin as the "big robber," or the larger of the two, and of Jim Baldwin as the "little man." The witnesses state that after the men had walked up to the bank window and required those inside the railing to hold up their hands, Jim Baldwin remained at the window while Hood Baldwin went behind the railing and searched Sinclair and Doctor Hendricks and compelled Rodgers to go into the vault and get the money. Rodgers stated that Hood Baldwin accompanied him into the vault. There is other evidence, direct and circumstantial, in the identification of the two defendants as the two men who robbed the bank. The two horses they rode were described, one of them a large gray horse, and the other a small dark bay or black horse. Ross testified that as the robbers rode out of town, the gray horse fell, and he recognized the rider as defendant Hood Baldwin. Ed Wilder, who lives three-quarters of a mile west of Gillham, and his wife both testified that they saw two men riding by their house that morning, going toward Gillham, one of them on a brown horse and the other on a gray horse, and that between 10:30 and 11:30 o'clock, the same day, the men returned from the direction of Gillham, running their horses at full speed, and they identified the men as the two Baldwins. H. H. King, who lives seven miles from Gillham, in the direction of Hochatown, Oklahoma, testified that on the morning the bank was robbed he saw two men, answering the description of the defendants, riding by his house, one riding a gray horse, and the other a brown; and that on the Friday before that he saw these two men driving the same horses to a buggy, going in the direction of Gillham, and that late in the afternoon of that day they returned along the same route and by the same mode of conveyance.

The defendants produced a large number of witnesses, from near their homes in Oklahoma, who testified as to their good reputation for honesty, etc., in the community in which they live. They also introduced the testimony of witnesses that tended strongly to establish an alibi. Hood Baldwin testified that he was at home on his farm on March 3 and remained there all day, and he produced several witnesses who were there that day, and testified that he did not leave home. The undisputed evidence is that a terrific rainstorm prevailed all over that country on March 3, and that the rainfall was so heavy that all the streams in western Arkansas and eastern Oklahoma were overflowed. Witnesses were introduced who testified that Jim Baldwin was in Bismark, Oklahoma, on March 3. A merchant at that place testified that Jim Baldwin came into his store on March 3 and made purchases, and that he gave him a cash ticket of the purchases. He produced the duplicate ticket showing the date, March 3, and Jim Baldwin himself produced the original ticket showing the purchases made by him on that date. Another witness testified that he was present in the store at Bismark on March 3, and saw Jim Baldwin there, and saw him make various purchases from the merchant who testified in the case. The testimony of other witnesses tended to establish the fact that Jim Baldwin was in Bismark on March 3, and if that was true, it was impossible for him to have robbed the Bank of Gillham. Both of the accused men testified as witnesses in the case, and they gave a detailed account of their whereabouts on the day of the robbery, and for a day or two preceding and a day or two succeeding that date.

Counsel for the accused argue very earnestly and forcefully, both in the brief and in the oral argument, that the great preponderance of the testimony is in favor of the defendants, to the effect that they were in Oklahoma on the day that the Bank of Gillham was robbed, and that they could not have been at Gillham on that day. Counsel rely, too, upon certain alleged discrepancies in the testimony of the witnesses who pretend to identify the accused as the men who robbed the bank. It can not be said, though, that there is not testimony of a very substantial nature identifying the defendants as the guilty parties. The testimony is undoubtedly legally sufficient to support the verdict. It is very difficult for judges of an appellate court to determine, merely from reading the record, where the real weight of the testimony lies. That can not be determined merely by comparison of the number of witnesses on the respective sides who testify on any given issue. Much is left, necessarily, to the judgment and fair discretion of the men composing the jury, who have the opportunity to hear the witnesses testify and observe their demeanor while upon the witness stand....