Easter v. State

• Decision Date: 05 December 1910
• Citation: 132 S.W. 924,96 Ark. 629
• Parties: EASTER v. STATE
• Court: Arkansas Supreme Court

132 S.W. 924

96 Ark. 629

EASTER v. STATE

Supreme Court of Arkansas

December 5, 1910

Appeal from Nevada Circuit Court; Jacob M. Carter, Judge; affirmed.

Judgment affirmed.

McRae & Tompkins and D. L. McRae, for appellant.

1. It was error to permit the witness Sutton to detail the conversation and statement of John Easter in the absence of the defendant. The general rule does not apply in this case because a conspiracy was not proved--no testimony of a conspiracy to which defendant was a party except the statements of this witness, who, by his own testimony, was an accomplice, accessory and co-conspirator, 77 Ark. 444, 450; 3 Greenleaf. on Ev. (13 ed.) § 92; 92 Ark. 592; 59 Ark 422; 37 Ark. 67; 55 Mich. 256; 12 Cyc. 442, 444; 8 Cyc. 684.

2. It was also error to permit the witness Sutton to detail the conversation with and statements by Wiley Easter in the absence of the defendant subsequent to the killing. 78 Ark 284, 290; 45 Ark. 165-171; Id. 328; 67 Ark. 234.

Hal L Norwood, Attorney General, and William H. Rector, Assistant, for appellee.

The testimony fully establishes a conspiracy, and the statements of appellants' co-conspirators, made in pursuance of said conspiracy, were properly admitted. To establish a conspiracy, it is not necessary to prove the unlawful agreement by direct and positive evidence. Neither is it necessary that other proof of the conspiracy should be shown before the declarations of an alleged co-conspirator are admissible. 77 Ark. 451; 32 Ark. 220; 59 Ark. 430; 8 Cyc. 677; 12 Cyc. 439; 2 Wigmore, Law of Ev., § 1079.

OPINION

MCCULLOCH, C. J.

Appellant was tried under an indictment charging him with the murder of one Matthew Babb, and was convicted of murder in the second degree, his punishment being fixed at fifteen years in the penitentiary. Deceased Babb was appellant's uncle, being the half-brother of Wylie Easter, appellant's father. The testimony tends to establish a conspiracy between appellant and his father, and John Easter, his brother, to kill Matthew Babb. There is also testimony tending to show that Lem Sutton, who was the principal witness relied on by the State, was also a party to the crime. The parties are all negroes, and lived within a few hundred yards of each other in Nevada County.

Babb was shot with buckshot and instantly killed about 7 o'clock in the evening of February 5, 1910. The killing occurred in front of his house, just outside of his gate. His wife, on hearing the shot, ran out of the house and found his dead body. Some of the neighbors came in shortly, and one of them blew a horn for a good while, which was a customary signal for the assembling of the neighbors on account of some unusual incident. None of the Easters went to the scene of the killing that night, though they lived within hearing of the horn.

The next day John and Clint Easter and Lem Sutton were arrested and placed in jail. Subsequently, Wylie Easter and one Simon Tate were arrested, but later released. Lem Sutton testified in substance that on the day of the killing the three Easters made a proposition to him to go in with them and kill Babb, but that he declined to join them in committing the crime. He stated that late in the evening he went over to appellant's house, and was sitting on the porch with John Easter when appellant came up and called to his wife for the gun and shells which were lying on the bed; that appellant's wife gave the latter the gun, and that he and John went off down towards Babb's, and told him (witness) to "keep his mouth," adding that if they went to the pen their father would be there to get them out. He stated further that he heard somebody halloo three times, and a short while afterwards he heard a shot fired. He testified that afterwards appellant and John Easter, while in jail, told him all about the killing and where they stood when they shot Babb.

It is not contended that the evidence is insufficient to sustain appellant's conviction, but that there are several errors of the court assigned in admitting evidence. The first one is that the court erred in permitting Lem Sutton to testify as to statements made to him by Wylie Easter in the absence of appellant. These statements were made on or about the day of the killing and before it occurred. There was sufficient evidence to establish a conspiracy between all three of the Easters to kill Babb, and the statements of either of the three during the progress of the conspiracy, and before the consummation of the conspiratorial act, are competent evidence against either. All that is necessary to render the evidence admissible is for the State to make a prima facie showing of the existence of such a conspiracy at the time the alleged statements were made. Chapline v. State, 77 Ark. 444, 95 S.W. 477.

Sutton was allowed to testify as to statements made by Wylie Easter before there was testimony as to a conspiracy. Later in his testimony, however, the evidence tending to establish the conspiracy was introduced, and there was no error, for it was a matter within the sound discretion of the court to control the order in which the testimony should be adduced.

The State introduced a letter purporting to have been signed by John and Clint Easter and Lem Sutton. This was objected to and the ruling of the court in admitting the letter is assigned as error. The parties were all in jail at...