Burns v. State

• Decision Date: 27 February 1939
• Docket Number: 4109
• Parties: BURNS v. STATE
• Court: Arkansas Supreme Court

125 S.W.2d 463

197 Ark. 918

BURNS v. STATE

4109

Supreme Court of Arkansas

February 27, 1939

Appeal from Pulaski Circuit Court, First Division; Gus Fulk, Judge affirmed.

Case affirmed.

Joe Wills and Sam Robinson, for appellants.

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

OPINION

HOLT, J.

The appellants, William Mabel Burns, Haywood Duckworth and Roma Ollison, were tried and convicted of the crime of robbery in the Pulaski circuit court, first division, and each sentenced to ten years in the penitentiary, on information as follows "Comes Fred A. Donham, prosecuting attorney within and for Pulaski county, Arkansas, and in the name and by the authority, and on behalf of the state of Arkansas information gives accusing William Mabel Burns, Haywood Duckworth and Roma Ollison of the crime of robbery, committed as follows, towit: The said William Mabel Burns, Haywood Duckworth and Roma Ollison, in the county and state aforesaid, on the 7th day of June, A. D., 1938, unlawfully, feloniously, wilfully, maliciously and violently from the person of O. Sherman, (Trustee of Shorter College, a corporation) in fear, did take, steal and carry away $ 2,319.90, gold, silver and paper money, said money being then and there the property of him, the said O. Sherman (Trustee of Shorter College, a corporation), against the peace and dignity of the state of Arkansas."

The facts upon which the information was based and the convictions had, stated in their most favorable light to the State, substantially, are: O. Sherman, a colored minister and a Trustee of Shorter College, a corporation, and a resident of North Little Rock, Arkansas, at about eight o'clock p. m. on June 7, 1938, left a committee meeting at Bethel Church in that city, carrying a bag which contained approximately $ 2,300.00 in currency, silver and a few checks. He got in his automobile with this bag of money and drove to a point near his home when another car drove up by his side and stopped him. One of the defendants, Roma Ollison, jumped out, and while Sherman was still at the wheel of his car, pointed a gun in his face, forced him to hand over the bag containing the money, then shot Sherman in the jaw, jumped back in his car and attempted to escape. In the car with Ollison was defendant, Haywood Duckworth. Sherman, although badly wounded, gave chase in his own car and succeeded in having Duckworth and Ollison captured by the officers. The bag in which the money was carried had been loaned to Sherman by Rev. E. J. Lunnon. There was also in the bag a pistol and bible belonging to Lunnon. Duckworth and Ollison voluntarily confessed their part in the robbery, admitted that Ollison shot Sherman in accomplishing the robbery, and in fact none of the details are seriously denied by them, except it is their contention that it was a fake robbery. Duckworth directed the officers to the place where the bag was thrown after the robbery in a ditch in Dark Hollow. The gun and bible were also found, but no money except a five cent piece was found in the bag or ever recovered.

Defendant Duckworth also made a voluntary confession to officer Jack Pyle in which he stated that the money was in a bag in a canvas sack and that he gave the money to defendant, Mabel Burns, in Fordyce, Arkansas, in Mabel Burns' home.

The record also reflects, according to the testimony of Rev. E. J. Johnson, that about fifteen minutes before eight o'clock, June 7, 1938, the day of the robbery, defendant Mabel Burns came from the north side of the church to the sidewalk and he and Duckworth stopped about the center of the church and talked three or four minutes. This was about fifteen minutes before Sherman left with the money. Duckworth then came across the street, talked to Burns three or four minutes, and Burns went across the street to the car and talked to someone who was in the car. There is other testimony that Burns was seen at the church that night.

Jack Pyle, an officer, further testified, that defendant, Mabel Burns, made a statement to him freely and voluntarily, without any hope or promise of reward, in which he admitted that he sent a telegram at 4:22 p. m., June 7, 1938, from the Little Rock office of the Western Union addressed to Roma "Bo" Ollison, c/o Fordyce Lumber Company, Fordyce, Arkansas, as follows: "You will be too late." Signed "Joe". Hiram King testified that he went with defendant, Mabel Burns, to the telegraph office in Little Rock. He said he wanted to send a telegram and that it was in the afternoon. Defendant Duckworth denied that Burns had anything to do with the robbery. Defendant Ollison made the statement in the presence of one of the officers that Burns was to send him a telegram if the money was out of the church by 3:30 o'clock, but later said he was forced to make the statement. Defendant Burns denied that he had any part in the robbery at all. Officer Lawrence testified that Burns made an admission to him in which he said he would show them where the money was and go with then to get it.

Appellants earnestly urge, first, that it was error as to Burns and Ollison for the trial court to allow Duckworth to testify that at some prior time he had told the prosecuting attorney that they, Ollison and Burns, planned and staged the robbery for the reason that neither Burns nor Ollison were present when the statement was made and also that the conspiracy had then been completed. We copy from the record the testimony upon which this alleged error is based: "Q. I want to ask you if you didn't tell me this in my office? 'Did you participate in that robbery, I mean did you have anything to do with it' and you answered 'Yes'. 'Tell what you know about it, what you did, and what you got out of it. First, let me ask you this question--Who was in on the robbery?' and you answered, 'Romy Ollison, they call him Bo'? A. I don't know what I did, I am liable to have told you Blakely or anything. Q. And the further...