Bennett and Holiman v. State

• Decision Date: 04 November 1940
• Docket Number: 4186
• Citation: 144 S.W.2d 476,201 Ark. 237
• Parties: BENNETT AND HOLIMAN v. STATE
• Court: Arkansas Supreme Court

144 S.W.2d 476

201 Ark. 237

BENNETT AND HOLIMAN v. STATE

4186

Supreme Court of Arkansas

November 4, 1940

Appeal from Logan Circuit Court, Northern District; J. O. Kincannon Judge; affirmed.

Judgment affirmed.

Caudle & White and Neill Bohlinger, for appellants.

Jack Holt, Attorney General, and Jno. P. Streepey, Assistant Attorney General, for appellee.

OPINION

HOLT, J.

Appellants Dick Bennett and Edgar Holiman, together with John. Carney and J. B. Walden, co-conspirators, were charged in an information with the crime of arson. Carney and Walden entered pleas of guilty to the charge and one was sentenced to serve one year in the state penitentiary and the other two years.

Appellants, Bennett and Holiman, were tried and convicted, and the punishment of each was fixed by the court at five years in the state penitentiary.

The information upon which appellants were tried is as follows:

"I, Ralph W. Robinson, prosecuting attorney of the Fifteenth Judicial District of Arkansas, in the name and by authority of the state of Arkansas, and upon information and belief accuse Edgar Holiman, Dick Bennett, John Carney and J. B. Walden of the crime of arson as follows, to-wit:

"The said Edgar Holiman, Dick Bennett, John Carney and J. B. Walden in the county and state aforesaid, on the 5th day of March, 1940, did unlawfully, feloniously and maliciously conspire and agree and did wilfully and feloniously burn and destroy a drug store in the town of Paris, Arkansas, known as the Cochran Drug Store and the property of Edgar Holiman and L. B. Crenshaw, and others, and did burn the said building and its contents against the peace and dignity of the state of Arkansas, and it appearing that there are reasonable grounds for believing that said defendant had committed the offense alleged herein, I therefore pray a warrant from Maude Connelley, circuit clerk, for arrest of the defendant that he may be brought before said court in the said county to be dealt with according to law."

The information is based upon § 3045 of Pope's Digest as indicated by instruction No. 1 given by the court, which is as follows:

"This information is based on § 3045 of Pope's Digest, which reads: 'Every person who shall wilfully and maliciously burn, or aids or abets or assists or hath advised and encouraged in the burning of any dwelling house, or other house, although not herein specifically named, or any improvements upon real estate, the property of himself or another person, shall be deemed guilty of arson as principal, and upon conviction therefor shall be imprisoned in the state penitentiary for a period of not less than one nor more than ten years'."

Appellants, Dick Bennett and Edgar Holiman, have appealed, assigning many errors in the course of the trial. They contend, first, that the court erred in refusing to grant them separate trials on their motion for a severance. We think, however, that this contention is without merit. Section 3976 of Pope's Digest provides: "When two or more defendants are jointly indicted for a capital offense, any defendant requiring it is entitled to a separate trial; when indicted for a felony less than capital, defendants may be tried jointly or separately, in the discretion of the trial court. When separate trials are ordered in any case, the defendants shall be tried in the order directed by the court."

This section of the statute has been construed by this court in three recent cases: Graham and Seaman v. State, 197 Ark. 50, 121 S.W.2d 892; Johnson v. State, 197 Ark. 1016, 126 S.W.2d 289; Morris and France v. State, 198 Ark. 1040, 132 S.W.2d 785. In each of these cases a severance was denied by the trial court, and this court, on appeal, held that no error had been committed since it did not appear that the trial court had abused its discretion in denying the severance.

In Johnson v. State, supra, this court said: "We think there was no abuse of this discretion in the instant case in denying the right of severance, especially in view of the fact that the defendants were charged with having conspired and confederated together to violate the law, and it was, therefore, necessary and proper to show their joint participation in the acts constituting a violation of the law which the information charged."

In the instant case, however, appellants contend that the trial court abused its discretion in denying appellants separate trials for the reason that a purported confession of appellant, Holiman, was allowed to be introduced in evidence by the court, which was prejudicial to the rights of appellant, Bennett.

The trial court instructed the jury that while Holiman's confession could be used as evidence against him, it could not be used against Bennett. We quote the last sentence in instruction No. 7 as follows: "You will not consider the confession in any manner against the defendant, Bennett."

While Holiman's confession was made subsequent to the completion of the crime, and was not admissible against his co-defendant, Bennett, it was clearly admissible against Holiman, and the court having instructed the jury that the confession could not be used as evidence against Bennett, we think no error is shown.

In the recent case of Lindsey v. State, ante p. 87, 143 S.W.2d 573, this court said:

"The confessions of Langley and Ralston were made after the completion of the criminal enterprise, and in the absence of appellant, and the law is definitely settled that, where a crime is committed, and the criminal enterprise of the conspirators has ended, the acts or declarations of one conspirator are thereafter inadmissible against his co-conspirators. Hammond v. State, 173 Ark. 674, 293 S.W. 714. But it must be remembered that the parties who made the confessions were also on trial, and the confessions were, of course, admissible against the parties who made them, and the jury was instructed that 'The confessions here can be considered only by you as evidence against the one who made it.'

"It is argued that the jury could not consider the confessions for any purpose without considering them against appellant. But this does not necessarily follow. The jury was told to do so, and we perceive no reason why they may not have done it. The jury might well have asked, in their deliberations, and have answered the question, whether, aside from the confessions, there was evidence of appellant's participation in the crime. This they were required under the instruction to do before finding appellant guilty, and we conclude there was no error in the instruction. Johnson v. United States, 82 F.2d 500; State of New Jersey v. Dolbow, 117 N.J.L. 560, 189 A. 915, 109 A. L. R. 1488."

In Commonwealth v. Millen, 289 Mass. 441, 194 N.E. 463, the rule is announced as follows:

"This court has held that the question whether separate or joint trials shall be granted rests in sound judicial discretion. (Cases cited.) [This same rule obtains in Arkansas by virtue of our statute. Pope's Digest, § 3976.]. A finding of abuse of discretion cannot be based on the fact that a confession of the defendant, Faber, implicating these defendants would be introduced at the trial. The rule that it is discretionary with the judge whether defendants indicted jointly shall be tried together applies where it is known that a confession in writing made by one of the defendants implicating the others would probably be introduced at the trial. Commonwealth v. Borasky, 214 Mass. 313, 101 N.E. 377. . . .

"The defendants were not prejudiced by the introduction of the confession. (Cases cited.) The rights of the defendants were carefully guarded by the instructions given, which, it is to be assumed, were followed by the jury."

In the case of People v. King, 30 Cal.App.2d 185, 85 P.2d 928, the court said:

"Error is claimed because of the refusal of the trial court to grant separate trials. Since the enactment of § 1098 of the Penal Code, in its present form [§ 1098 provides that defendants are to be tried jointly unless the judge in his discretion grants a severance], a defendant jointly charged is not entitled to a separate trial as a matter of right, and the question of severance rests entirely in the discretion of the trial court. People v. Thomas, 135 Cal.App. 654, 27 P.2d 765. It is not an abuse of discretion to refuse to grant a motion for a severance because damaging testimony or the admission or confessions of a co-defendant might be admitted in evidence against such co-defendant, and not be admissible against the moving defendant. People v. Swoape, 75 Cal.App. 404, 242 P. 1067; People v. Tinnin, 136 Cal.App. 301, 28 P.2d 951."

Appellants next contend that error was committed in the court's refusal to require the state to elect upon which charge in the information it would try appellants, it being their contention that more than one offense was charged, and, also, that error was committed in permitting the original information to be amended.

It appears that before the introduction of the testimony appellants demurred to the information. As originally drafted, the information contained this recital: "did wrongfully and feloniously burn and destroy a drug store in the town of Paris, Arkansas, known as the Cochran Drug Store, and the property of Edgar Holiman and others." The prosecuting attorney was permitted to amend the information by writing in the name "L. B. Crenshaw" as it now appears in the information set out, supra. No error was committed in permitting this amendment. Section 3853 of Pope's Digest.

After this amendment, the court overruled appellants' demurrer. Whereupon they filed a motion to require the state to elect, which was also overruled.

We think it clear from the allegations contained in the information that...