Breed v. State

• Decision Date: 23 October 1939
• Docket Number: 4145
• Parties: BREED v. STATE
• Court: Arkansas Supreme Court

132 S.W.2d 386

198 Ark. 1004

BREED v. STATE

4145

Supreme Court of Arkansas

October 23, 1939

Appeal from Little River Circuit Court; Minor W. Millwee, Judge affirmed.

Judgment affirmed.

W. S Atkins, for appellant.

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

OPINION

BAKER, J.

Two questions are raised by this appeal from the conviction for arson. The first of these is that the court erred in refusing to give instruction No. 7 as requested by defendant. That instruction reads as follows: "You are instructed that although you may believe the testimony of the witnesses, E. R. Jarvis, Chas. Crosnoe and Chris Wheaton, you could not convict the defendant on their testimony unless you find that their testimony is corroborated by other evidence that connects the defendant with the crime; and you are further instructed that such other evidence is not sufficient unless it shows affirmatively that the defendant was connected with the commission of the crime, and all of the evidence in the case taken together must be sufficient to convince you of the defendant's guilt beyond a reasonable doubt before you can convict the defendant."

The court modified the instruction by striking from it the name of Chas. Crosnoe, who was charged by appellant with being an accomplice. The court gave the instruction as asked after amending by striking from it the name of this witness. The court also gave instruction No. 6 as asked for by appellant after amending it to tell the jury that the defendant could not be convicted unless the testimony of an accomplice was corroborated, and the jury was satisfied of the guilt of the appellant beyond a reasonable doubt on the whole case. The court instructed the jury by an addition to No. 6 as follows: "And if you find from the evidence that the witness Chas. Crosnoe was an accomplice, then you are told that you cannot convict the defendant unless his testimony is corroborated by other testimony in the case, which convinces you of his guilt beyond a reasonable doubt."

Appellant insists that the court erred in not telling the jury as a matter of law that Crosnoe was an accomplice, instead of submitting to the jury the evidence in that regard, under the above instructions.

Without attempting to set forth all the evidence in this case with any degree of detail, it may be said that E. R. Jarvis, who operated a restaurant at Hope, Chris Wheaton, a negro, who lived at Hope and sometimes worked for Jarvis, Chas. Crosnoe and appellant, Breed, all were alleged to have gone from Hope, Arkansas, at night to Ashdown to burn a hotel building at that place. Jarvis had contracted for and paid some money in the purchase of this hotel, had increased the insurance from $ 10,000 to $ 20,000, according to plan to burn the building and collect the insurance. Jarvis and Wheaton had entered pleas of guilty just prior to the time of trial, and they testified with considerable detail as to the part taken in the plans to burn the hotel by appellant, Breed. Crosnoe, who is also a confessed incendiary artist, testified that he had been approached by Jarvis and Breed prior to the time of this fire, and that he reported to the chief of police at Hope the information he had received from Jarvis, and was advised to enter into the arrangement with Jarvis and keep him, the chief of police, advised as to their actions. Crosnoe testified to this fact and says he advised the chief of police of the progress of the plan. He is corroborated by the chief of police, who informed Mr. Sanderson, sheriff of Little River county.

We are prepared to believe this statement and think it not unreasonable that the jury might have done so as the undisputed evidence discloses that there were minute details arranged in gathering together and moving to the hotel building to be destroyed gasoline in wooden barrels for containers where it was handled by Wheaton, who was the only man in the house at the time the gasoline was distributed so as to be most effective in the fire. Some of these matters were known by the sheriff, and when Wheaton set fire to the gasoline and ran from the building, he was caught and arrested while gasoline was still burning on his clothing. Crosnoe says that Breed came for him that night and took him to Ashdown. Breed's statement is that Crosnoe came for him and took him to Ashdown on that occasion. Jarvis had furnished the car in which these two men went to Ashdown, and according to his statement he delivered possession of it to Breed. He says Crosnoe was to return in it to pick up Wheaton. Wheaton says Breed was to do this.

Crosnoe stated that they met Jarvis, who asked about Wheaton and another negro who were to deliver the gasoline on a truck. They had not met these negroes as it was understood they would. In a short time they left ostensibly, at least, to locate them. They were several miles away when he, Crosnoe, saw the flash when the building was set on fire. He 'phoned the chief of police at Hope, telling him the fire had been set.

There are many important and material facts substantial in effect not mentioned, some of which tend strongly to show appellant's connection and guilty participation in the crime, or at least the jury might have well so found therefrom. To set all these out would unnecessarily extend this opinion.

It is earnestly insisted by appellant that the trial court should have told the jury as a matter of law that the undisputed evidence showed that Crosnoe was an accomplice, and that, therefore, instruction No. 7 should have been given without modifying it. It told the jury that Jarvis, Crosnoe and Wheaton were accomplices, and that Breed could not be convicted upon their uncorroborated testimony.

We most heartily agree with this contention on the part of the appellant as to the law, that is to say that defendant might not be convicted on the uncorroborated testimony of an accomplice, but we do not agree with appellant's contention as to the facts. It is true that without explanation Crosnoe would appear to be as deeply involved in the criminal conspiracy as Breed or Wheaton, but we have the explanation given that he was acting under the instructions and advice of the chief of police of Hope, Arkansas; that he was reporting to the chief of police the details, progress and development of the conspiracy to burn this piece of property; that he knew these reports were being used to entrap those with whom he was daily associated. His conduct, at least, makes a question of fact for the jury to determine.

It may be possible, and perhaps is highly probable that Crosnoe was not motivated by any high ideals in regard to law enforcement or public welfare. In fact, his designs may have been extremely selfish and sinister. He may have intended to profit, at least, by the good will of the officers at the expense of the capture of his boon companions, in addition to that gained from the crime, but notwithstanding such surmises, unless he actually participated in a crime he was not an accomplice. In other words, we think it may be asserted, that his deception of his friends, his betrayal of their confidence, his going with them to lend color to his pretended mental attitude are not in...