Butt v. State

• Decision Date: 17 December 1906
• Citation: 98 S.W. 723,81 Ark. 173
• Parties: BUTT v. STATE
• Court: Arkansas Supreme Court

98 S.W. 723

81 Ark. 173

BUTT v. STATE

Supreme Court of Arkansas

December 17, 1906

Appeal from Perry Circuit Court; Edward W. Winfield, Judge affirmed.

Judgment affirmed.

J. V Walker and Sellers & Sellers, for appellant.

1. The testimony of M. D. L. Cook that he gave money to Covington was incompetent and inadmissible. Before the acts and declarations of a third person may be shown against the party on trial, it must be proved with reasonable certainty that the defendant and the person whose acts or declarations are offered in evidence have formed a conspiracy to commit the crime for which the defendant is on trial; also that the unlawful conspiracy still exists, and that the acts or conduct of the conspirators offered in proof were in execution of the unlawful purpose. 9 S.W. 50; 57 P. 1016; 69 S.W. 153; 65 S.W. 308; 11 Am. St. 581; 40 N.Y. 228.

2. Before Covington's acts could be shown by Cook's testimony, the testimony itself should be sufficient to show prima facie that Butt and Covington had formed a conspiracy to bribe. 22 Am. & Eng. Enc. Law (2 Ed.), 1294; 6 Words & Phrases, 5549; Wharton, Crim. Ev. §§ 440, 698.

3. The admission of McNemer's testimony as to defendant's reputation in Little Rock was erroneous. At the time of trial, rebutting testimony upon character and reputation like the testimony in chief, must be confined to a time anterior to the charge under investigation. 12 Cyc. 415; 20 P. 396; 38 P. 743; Wharton, Crim. Ev. § 63; 20 O. St. 460; 3 Enc. Ev. 27; Winst. (N. C.) 151; Underhill, Crim. Ev. 104; 80 Ky. 480; 46 Ala. 175; 90 Ala. 589; 2 Wig. Ev. 1966; 1 Bishop, Crim. Pros. § 1118.

4. The court erred in its fourth and fifth instructions as to testimony of accomplices. The fourth is argumentative, and the two together tell the jury to convict if there is any testimony, aside from that of the accomplices, tending to connect the defendant with the commission of the crime charged, whether they believe the accomplices or the corroborating witnesses or not. It has always been the rule to instruct the jury that they should view testimony of accomplices with caution. 33 P. 98; 12 Cyc. 453; 17 P. 519; 11 Enc. Pl. & Pr. 325. To sustain a conviction upon the testimony of an accomplice, he must be corroborated both as to the commission of the crime and the connection of the party charged. 1 Enc. of Ev. 105; 6 S.W. 318.

5. The question of whether witness Hinkle was an accomplice or not should have been submitted to the jury. By his own testimony he stood in the attitude of an accomplice, or at least it justified submitting the question to the jury. 26 S.W. 830; 48 S.W. 581; 62 S.W. 749; 1 Thompson on Trials, § 1042; 28 Minn. 223; 1 Enc. of Ev. 111; 11 P. 797; 42 P. 215; 25 S.W. 629; 42 S.W. 301.

6. The testimony corroborative of an accomplice should be of a substantial kind, and the court erred in refusing so to instruct the jury. 75 Ark. 540.

7. The cause should be reversed because of statements of the prosecuting attorney in his closing argument to the effect that he had made the strongest case against the defendant of any of the boodle cases. The prejudicial effect of this statement could not be overcome by a reprimand from the court. 70 Ark. 305.

R. L. Rogers, Attorney General, and Lewis Rhoton, Prosecuting Attorney, for appellee; James A. Gray and De E. Bradshaw, of counsel.

1. In proof of a conspiracy great latitude must be allowed. The jury should have before them every fact which will enable them to come to a satisfactory conclusion. 130 Ind. 467; 110 Ia. 81; 137 Pa.St. 255; 107 F. 753. Hence the testimony of Cook that he gave money to Covington, and of Hinkle as to the meeting in Covington's room, was competent.

Much discretion is left to the trial court in a case depending on circumstantial evidence, and its ruling will be sustained if the testimony which is admitted tends even remotely to establish the ultimate fact. 55 Conn. 46; 163 Mass. 411; 107 N.C. 822; 159 U.S. 590; 8 Cyc. 678; 77 Ark. 444.

Where the whole evidence shows that a conspiracy actually existed, it will be considered immaterial whether the conspiracy was established before or after the acts and declarations of the members. 122 Ill. 337; 12 Tex.App. 65; 17 Kan. 298; 3 Star Route Trials, 3188; 181 Mo. 173; 99 N.W. 47; 90 Minn. 183; 132 Mich. 537; 4 Am. Crim. Rep. 78; 134 Mich. 537; 157 Ind. 57.

2. Although, in the examination of the witness McNemer as to defendant's reputation, the questions and answers were couched in the present tense, yet it is clear, both from the direct and cross-examination, that the witness was basing his answers upon information received prior to the commission of the offense for which the defendant was being tried.

3. The court properly charged the jury in its fourth instruction that in weighing the testimony of an accomplice they should determine its truth or falsity by the same rules as they would the testimony of other witnesses. 59 Ark. 422; 98 Cal. 278; 26 Ill. 344; 58 Me. 267; 57 Mich. 505; 39 Miss. 570; 22 Neb. 481; 109 N.Y. 251; 2 Leigh, 769.

There was no error in the fifth instruction given by the court, especially since the court further charged the jury that there could be no conviction upon the testimony of Adams and Cook, unless there was other evidence, independent of theirs, which, of itself, without reference to their testimony, proved, or tended to prove, that the crime charged in the indictment was committed, and that the defendant was a party to its commission.

4. Appellant's objection to the prosecuting attorney's statement in his closing argument is untenable. It was a mere matter of opinion, and so stated at the time. It can not be held to have prejudiced the appellant. 58 Ark. 368; 74 Ark. 256.

5. There was no error in the court's refusal to submit to the jury the question as to whether or not Hinkle was an accomplice, because there is not only no conflict in the testimony, but there is no testimony that could justify a finding that he was an accomplice. 43 Ark. 367; 1 Am. & Eng. Enc. Law, (2 Ed.), 390; 42 P. 215; 13 P. 896.

OPINION

RIDDICK, J.

This is an appeal from a judgment convicting the defendant of the crime of bribery and sentencing him to pay a fine of two hundred dollars and to be imprisoned in the State penitentiary for the term of two years. The defendant was a member of the State Senate in 1905 when a bill appropriating eight hundred thousand dollars for the completion of the State Capitol was pending before the Senate. The conviction was based on a charge that defendant paid Senator Adams one hundred dollars to induce him to vote for this bill. The evidence, so far as necessary to show the questions of law involved, was as follows:

It was shown by the testimony of witness Hinkle that, soon after the organization of the Senate in 1905, he, with a few other senators, including defendant, Butt, was present in the room of Senator Covington at the hotel, and that in the course of their conversation Covington said that by standing together they could control legislation, and in substance suggested that they organize and make money by demanding and receiving pay for the passage or defeat of bills. The witness said that he himself did not agree to this suggestion, though he made no response to it, but sat silent for a few minutes while it was discussed by the others, and then left the room and did not return. He further stated that he did not remember what the defendant Butt said in reply to this proposition of Covington, "more than that he seemed to agree," and that Butt thereupon made out a memorandum of the names of those senators that it was believed could be induced to enter the combination.

It was shown by another witness, Cook, that two or three months afterwards, towards the latter part of the session, when bill No. 370, to appropriate eight hundred thousand dollars for the completion of the State Capitol building and for other purposes, had been introduced in the Senate, Caldwell & Drake, a firm of contractors who had a contract for erecting the new Capitol, and who were especially interested in the passage of this bill, paid to witness Cook a large sum of money, over twelve thousand dollars, to be used to influence members of the Legislature. A large part of this, some four or five thousand dollars, was paid by Cook, acting for Caldwell & Drake, to Senator Covington, to be used for that purpose.

It was further shown by the testimony of Senator Adams that the defendant Butt paid him one hundred dollars to vote for the bill, with the promise of four hundred more when the bill became a law. After the Senate adjourned and the grand jury began to investigate these matters, this witness saw the matter in a new light, and says that he returned the money to Butt. Senator Hardy, another witness, testified that while the bill was pending Butt stated to him that there was a rumor that a large amount of money was being used to pass the bill, and that he could get five hundred dollars for voting for the bill. The language of this witness is not quite clear as to whether Butt stated that the witness or Butt could get the money. But, let it be taken either way, and it will seen by reference to the testimony of Adams set out in the transcript that Butt approached Hardy in much the same way that he did Adams. Another witness, Hinkle, testified that after the bill was passed it was rumored that money had been used, and that, being informed that Butt had paid Adams one hundred dollars to vote for the bill, he questioned Butt about it; that at first Butt denied it, but finally admitted that he had paid Adams money. Still another senator, Holland, testified that after the Senate had adjourned, and when Covington was being tried, he was told that Adams had...