Fort v. State

• Decision Date: 22 June 1889
• Citation: 11 S.W. 959,52 Ark. 180
• Parties: FORT v. STATE
• Court: Arkansas Supreme Court

11 S.W. 959

52 Ark. 180

FORT v. STATE

Supreme Court of Arkansas

June 22, 1889

APPEAL from Sebastian Circuit Court, JOHN S. LITTLE, Judge.

The appellants, J. D. Fort, and H. W. Fort, were indicted by the grand jury of Logan County for the crime of burglary charged to have been committed on the night of February 17, 1887, by breaking and entering the court house of that county, with intent to steal certain public moneys and school funds then being in that building. They obtained a change of venue to the Circuit Court of Sebastian County for the Greenwood District, in which they were tried and convicted. The evidence shows that on the night mentioned in the indictment the safes of the County Treasurer and Sheriff, kept in the court house, were opened, and a large sum of money was taken from the former. The Treasurer's safe was in the vault of the Circuit Clerk's office which had two iron doors, the inner of which was fastened by a lock and key and the outer by a combination lock. At the time of the burglary, Hawkins Corley was the County Treasurer's deputy, and knew the combination to the latter's safe. He was a witness for the State, and his testimony was in substance as follows:

A few weeks before the offense was committed, the defendant, J. D Fort, applied to him to borrow $ 500. Three or four days later the defendant, H. W. Fort, applied to him to borrow for himself and the defendant, J. D. Fort, the sum of $ 1,000. Subsequently and before the burglary, both the defendants proposed to borrow about $ 4,000 with which to buy a stock of goods, and that the witness should lend it to them and become a partner in their business. The witness on each of these occasions declined to let the defendants have any money saying that he could not lend the public funds. About ten days before the burglary, the defendants met witness, and after drinking with him, expressed a desire to have a private conversation with him, to which he assented. They then asked him if he knew that the county treasury was going to be robbed. He replied that he did not know it. They said it was going to be robbed, and asked him if it was going to be done "why they (the three) had not as well have some as anybody?" The witness replied that if the robbery was going to be committed, they (meaning the three) had as well have some of the money as anybody else. They then asked him if he knew the combination of the safe door, and he replied that he did. In reply to an inquiry made by the defendants the witness told them that there was then in the treasury about $ 21,000. His further testimony was to the effect that in this conversation he agreed to aid the defendants in stealing the county funds; but that a few days afterwards he told them that he did not believe he "had the nerve," and they would have to let him off. That they were unwilling to "let him off," but told him that if he could not participate in the burglary, to give them the combination to the safe, "and they would do the work." That on the Tuesday or Wednesday preceding the Thursday on which the offense was committed, he gave the defendants the combination of the safe on a piece of paper. That on his expressing a fear that if the safe was opened by the combination he would be implicated, the defendant, H. W. Fort, said he would break the safe to pieces.

The fifth clause of the court's charge to the jury is as follows:

You are instructed that the witness, Hawkins Corley, is an accomplice, and that a conviction of defendants cannot be had upon his testimony unless corroborated by other evidence tending to connect the defendants with the commission of the offense, and the corroboration is not sufficient if it merely shows that the offense was committed, and the circumstances thereof. And if such corroboration does not appear in the testimony, you should acquit. But if you find from the evidence that the testimony of witness, Corley, has been corroborated by the evidence as above indicated, and if such corroboration considered in connection with Corley's testimony, and all the other facts and circumstances in proof in this cause, satisfies your minds of the guilt of the defendants beyond a reasonable doubt, you should convict."

Judgment affirmed.

Duval & Cravens, for appellant.

1. Corley's confession was not supported by such evidence as the law requires. The testimony of an accomplice should be corroborated by "evidence admitting of no suspicion as to such parts as satisfactorily show that he has not fabricated the story." "He should be confirmed in some fact affecting the individual he accuses." It should reach the identity of the person charged. Whart. Cr. Ev., secs. 441-2; Roscoe Cr. Ev., sec. 130; 42 Vt. 95; 55 Barb., 450; 3 Camp., 131; 3 Stark., 34; 38 How. Pr., 369; Mansf. Dig., sec. 2259.

2. Opinions of witness, save certain well known exceptions, are not evidence, and Wilkins' evidence is not admissible. 2 Best on Ev., sec. 511, p. 864; Dyer, 53. The evidence upon which the witness arrived at his conclusion was proper, but not the conclusion or opinion itself. 11 Mo. 230; 7 Mo. 231.

3. If there was a reasonable doubt of the absence of defendant, he was entitled to an acquittal. 17 P. 522; 42 Mich. 261; 31 Mich. 1.

This feature was not touched in any of the instructions given. Whart. Cr. Ev., 19th ed., sec. 333; 86 Pa. 54; 95 id., 418; 50 Mich. 233; 65 Ga. 756, etc.

4. The court erred in instructing the jury that Hawkins Corley was an accomplice. That was a fact for the jury. 50 Ark. 534; 36 id., 126; 9 N.W. 698; 11 Pac., Rep., 799; Const. Ark. art. 7, sec. 23.

5. The introduction and use of the bail bond in comparison with the slip found on the safe was error. 32 Ark. 337; 1 Gr. Ev., secs. 577-8; Whart. Cr. Ev. (9th ed.), secs. 555-7; 10 Cent. Law Journ., 121; 39 Md. 90; 17 Am. Rep., 540; 9 Cow., 94; 2 Johns. Cas., 210; 2 Park. C. C., 210; 22 N.J.L. 212; 28 Pa. 318; 27 Md. 6; 14 id., 573; 56 id., 439; Leigh., 216; 1 Duval (Ky.), 335; 3 Brev., 51; 1 Hawks., 6; 1 Ired., 16; 21 Ill. 375; 32 Ark. 338; 9 W. S., 270, and many other cases.

W. E. Atkinson, Attorney General, and T. D. Crawford, for appellee.

1. Hawkins Corley, the accomplice, was sufficiently corroborated. 110 Mass. 104.

2. Wilkins' evidence admissible; he stated merely what the appearance of the door suggested to his mind, after stating what the facts were. 117 Mass. 122, 127; 17 Mich. 99; 41 Iowa 219; 84 N.C. 756; 66 Md. 419. It was impossible to bring the punch and door into court, and it was the best evidence obtainable under the circumstances.

3. All the facts surrounding the alleged crime should be proven, and it was not improper to admit Corley's testimony that the Forts had approached him to borrow the county money. 43 Ark. 99; 18 Mich. 228.

4. The instructions given fairly covered the questions of alibi and reasonable doubt.

5. The slip found was admitted as part of the res gestae. The objection to its comparison with Fort's signature fails, because the paper was proved genuine. 32 Ark. 337.

OPINION

COCKRILL, C. J.

In the course of its charge the court told the jury that Hawkins Corley, upon whose testimony the State relied for a conviction, was an accomplice. The appellants, without making specific objection to that part of the charge at the trial but relying solely upon a general objection to the entire charge, now single out that clause, and argue that it is erroneous because it assumes that they are guilty. A survey of the whole charge does not warrant the assumption, but leaves the unmistakable impression that the court did not intend to interfere with the jury's right to believe Corley's statement, but to inform them that if they believed it, it would still require other evidence connecting the defendants with the commission of the offense to authorize a conviction. The charge fairly covered the whole subject pertaining to the defendants' guilt or innocence, and no objection worthy of...