Fleeman and Williams v. State

• Decision Date: 12 October 1942
• Docket Number: 4271
• Citation: 165 S.W.2d 62,204 Ark. 772
• Parties: FLEEMAN AND WILLIAMS v. STATE
• Court: Arkansas Supreme Court

165 S.W.2d 62

204 Ark. 772

FLEEMAN AND WILLIAMS v. STATE

4271

Supreme Court of Arkansas

October 12, 1942

Appeal from Craighead Circuit Court, Eastern District; Neil Killough, Judge; affirmed.

Judgment affirmed.

Claude F. Cooper and T. J. Crowder, for appellant.

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

OPINION

MCHANEY, J.

Appellants were charged by separate informations with the crime of grand larceny for the stealing of an automobile wheel, tire and tube, the property of Charles Gibson of Lake City, Arkansas. Their cases were consolidated and tried together, which resulted in a verdict and judgment of guilty and each was sentenced to a term of five years in the state penitentiary. One Cutter Ashabranner was also charged with the same offense. He entered a plea of guilty to the charge against him and became a witness for the state in the trial of appellants.

As to appellant, Nell Williams, it is urged that the court erred in instructing the jury that: "All persons being present, aiding, abetting, assisting or standing by, ready and consenting to aid, abet or assist in the perpetration of a crime shall be deemed a principal and shall be indicted and punished as such." Her counsel specifically objected and excepted thereto because, he says, it means "that one who stands by is guilty as an accessory when the instruction should read, 'being present and aiding and abetting and assisting,'" and for the further reason she is charged as a principal and not an accessory before or after the fact. After deliberating some time, the jury returned a verdict of guilty against Fleeman, and asked that the "aiding and abetting" instruction as to Nell Williams be repeated. Thereupon, the court said: "All persons being present, aiding or abetting or ready and consenting to aid and abet in the commission of a crime shall be deemed a principal offender and shall be indicted and punished as such. Therefore, if you find from the case (no doubt meaning evidence or evidence in the case) beyond a reasonable doubt, that the defendant, Nell Williams, was present, aiding and abetting in the commission of a felony by the said Charles Fleeman, then and in that event she would be punished as such. If you have a reasonable doubt that she was not present, aiding and abetting the commission of a crime you should acquit her." No objection was made or exception taken to the form of this instruction, but only because it was a repetition and the court was requested to repeat each of the instructions. It will be noticed that the "standing by" part of the instruction, as originally given, was not given by the court when the foreman requested it be repeated. As the jury was finally instructed, they had to find beyond a reasonable doubt that Nell Williams "was present, aiding and abetting in the commission of a felony by said Charles Fleeman" before they could find her guilty, and, if they had a reasonable doubt about it, they must acquit her. We, therefore, conclude that the instruction as repeated, being without objection or exception as to form or substance, is correct, and that it supersedes the instructions as first given, about which said appellant complains, and disposes of this assignment of error against her.

Moreover, we see no error in the instruction as originally given. Under § 25 of Initiated Act No. 3, Acts 1937, now § 3276 of Pope's Digest, the former distinction between principals and accessories is abolished and under it all accessories before the fact shall be deemed principals. See Burns v. State, 197 Ark. 918, 125 S.W.2d 463. While this section appears in the digest as 3276, appearing under the subject of "Perjury," it should be § 2940 (a), under the heading of "Principals and Accessories." Section 2937 provides: "All persons being present, aiding and abetting, or ready and consenting to aid and abet, in any felony, shall be deemed principal offenders, and indicted and punished as such." Such is, in effect, the instruction given by the court originally and was a correct declaration of law as fixed by said statutes. See, also, London v. State, ante, p. 767, 164 S.W.2d 988.

The only other alleged error argued applies to both appellants, that is, the insufficiency of the evidence to sustain the verdicts and judgments. We cannot agree with appellants in this contention.

It is undisputed that both appellants were present when the larceny occurred, in fact, it was so conceded in oral argument. They with Ashabranner, who pleaded guilty to the charge against him,...