Cumnock v. State

• Citation: 112 S.W. 147,87 Ark. 34
• Parties: CUMNOCK v. STATE
• Decision Date: 29 June 1908
• Court: Supreme Court of Arkansas

112 S.W. 147

87 Ark. 34

CUMNOCK v. STATE

Supreme Court of Arkansas

June 29, 1908

Appeal from Pulaski Circuit Court, First Division; Robert J. Lea Judge; reversed.

Judgment reversed and cause remanded.

Murphy Coleman & Lewis, James P. Clarke, and T. D. Crawford, for appellant.

No evidence of acts of an alleged conspirator should be admitted against a co-conspirator until a prima facie case is made out. 77 Ark. 444; 11 Ill.App. 188; 31 Gratt. 469. One conspirator can be held criminally liable for such acts only as could reasonably have been foreseen to occur in the execution of the conspiracy agreed upon. 31 So. 280; 96 Ill 73; 115 Ga. 584. Where some act essential to the crime of conspiracy is in fact done by a detective and not by defendant, the latter's guilt is not made out. 22 Kan. 505; 3 Tex.App. 156; 41 E. C. L. 123; 44 Kan. 618; 20 Tex.App. 375; 53 Cal. 185; 105 Mo. 76. An accessory is not guilty of burglary where the principal, who was a decoy, was not guilty. 27 So. 617; 11 L.R.A. 813. The owner and his agent may wait for a criminal to perpetrate an offense, but they must not aid encourage or solicit him whom they may seek to punish. 160 Ill. 508; 76 Mich. 200; 112 Am. St. 692; 38 Mich. 218; 72 Am. St. 694; 6 Tex.App. 665; 25 L.R.A. 341; 25 Alb. Law Jour. 184.

If one of two alleged conspirators is not guilty, neither is guilty. 5 Mich. 167; 92 Ga. 584; 32 Ark. 226.

William F. Kirby, Attorney General, for appellee.

It is sufficient if the whole evidence introduced in the trial, all considered together, shows that a conspiracy 'actually existed. 105 Cal. 262; 122 Ill. 1; 17 Kan. 298; 60 F. 890; 25 Ont. 151; Roscoe's Crim. Ev. 414. The court may assess the punishment where the jury fail to do so. 56 Ark. 1; 61 Id. 594; 69 Id. 159; 70 Id. 272; 73 Id. 321; 80 Id. 297. Two parties may enter into an agreement to an unlawful act. They are guilty of a conspiracy, even though the act be impossible of accomplishment; for the crime is the agreeing to an unlawful act. The acts of Shackleford do not divest the acts of Cumnock and Faucette of their criminality. 105 Mich. 80.

OPINION

BATTLE, J.

The grand jury of Perry County indicted Frank Cumnock and W. C. Faucette as follows:

"The grand jury of Perry County, in the name and by the authority of the State of Arkansas, accuse Frank Cumnock and W. C. Faucette of the crime of conspiracy, committed as follows, to-wit: The said Frank Cumnock and W. C. Faucette, in the county and State aforesaid, on the 9th day of August, A. D. 1907, unlawfully and corruptly did conspire, agree and confederate together, and each with the other, to commit the crime of bribery by then and there unlawfully and corruptly paying, and procuring to be paid and delivered, to jurors whose names are unknown to the grand jury, and who were then and there petit jurors duly and legally summoned, sworn, qualified, impaneled and acting as petit jurors on the regular petit jury for the August term, 1907, of the Perry County Circuit Court, which court was then and there in session in pursuance to and in accordance with law, one hundred dollars, gold, silver and paper money, of the value of one hundred dollars, as for and by way of a bribe, with the unlawful intent to bias the members of said jury, and to incline the said jurors to be more favorable to the defendant in a cause then and there pending in said Perry Circuit Court, and which cause said circuit court had jurisdiction to, wherein the State of Arkansas was plaintiff and A. T. Gross was defendant, wherein said A. T. Gross was charged with the crime of soliciting a bribe, and being a matter, cause, case and proceeding which might and did come before said court and said petit jury during said term for trial, the said Frank Cumnock and W. C. Faucette then and there well knowing said jurors were jurors aforesaid, against the peace and dignity of the State of Arkansas."

A change of venue was asked and granted from the Perry to the Pulaski Circuit Court.

The defendants were jointly tried and convicted of the crime charged; and their punishment was assessed at a fine of one hundred 'dollars each "and three months' imprisonment each in the county jail." They moved for a new trial, which was denied, and they appealed.

In the course of their trial and in behalf of the State John D. Shackleford testified. He said he had a conversation with Cumnock, at which Faucette was not present, and testified in relation thereto as follows: "Yes, he (Cumnock) commenced by saying that Mr. Faucette (defendant) had sent him over to see me, and he said that Bill (Faucette) said for him to come over and see me, and see if I could not give them relief, and I told him I could not afford to get mixed up in it, and he says: 'Gross feels about it that he cannot go to trial up there, and our people are disposed to blame you for it,' and I says: 'I have not got any control over my brother. He is up there, and I cannot control him, and I cannot afford to get mixed up in it.' And he said: 'If you don't do something, we are going to hold it in for you next spring in the election; you can relieve the situation, and you ought to do it.' I says: 'That is unfair to me. I am not able to control the situation; and if you are going to fight me because of that, and because I cannot control my brother, you will have to do it.' And I pleaded with him that he ought not to hold me responsible for it, and he told me then, if I would line up and bring some pressure to bear, how they would line up over there, and said that Bill said they would give me Argenta solid; that Bill said he would do it, and he could do it, if I would make my brother lay down on Rhoton."

He testified that he wrote a letter to his brother, a part of which is as follows:

"Little Rock, Ark., August 8, 1907.

"Dear Jim:--Frank Cumnock has just paid me a visit on behalf of Faucette et al., requesting me to bring to bear some influence on you in the interest of Senator Gross. They want you to put up a job on Rhoton, and as a reward they offered to give me material assistance in my race for county judge, and as an argument they say Rhoton is against me," etc. Again he testified:

"About nine o'clock he (Cumnock) came back to the office, and said that he had had another conversation with Faucette in which the agreement was reached that something must be done; that if they could not reach the case one way they must do it another; and the idea was that the proper thing to do was to hang the jury."

J. M Shackleford testified, in behalf of the State, as to a conversation he had with Cumnock, in the absence of Faucette in which he spoke of himself and Faucette as "they." He testified as follows: "In the conversation with me he indicated that he was up there for the purpose of aiding Mr. Gross; that is about what he said about it, and then he asked me if I was not attorney for the State, and if Mr. Rhoton was not depending on me to pick his jury for him, and I told him I was, and that I was representing the State, and that he was relying on me; then he said that the thing they wanted was to get me to assist them to put up a job on Rhoton, so as to either acquit Gross or to hang the jury, and said they were willing to spend some money for that purpose; but they wanted me to do it on the basis that they would assist John D. Shackleford in his race in this county. That was the consideration they proposed to give me, of material assistance for him; but that they were willing to do anything that was necessary that it would take to influence the jury; if it took some money they had it, and he asked me what I thought about it, and I told him I could not do anything about it; and then he wanted to know if Mr. Rhoton was relying on me, and would take whoever I told him; and he wanted to know how much money it would take, and said they wanted the jurors fixed so that there would not be one man hanging out against eleven; and I told him I didn't know what amount it would take, but no great amount, and that I supposed it might be arranged for a small amount; that I had some good friends on the jury, and supposed $ 25 apiece would be enough for them. And he said they would readily give...