Henderson v. State

• Decision Date: 11 July 1927
• Docket Number: (No. 162.)
• Citation: 297 S.W. 836
• Parties: HENDERSON v. STATE.
• Court: Arkansas Supreme Court

Page 836

297 S.W. 836

HENDERSON v. STATE.

(No. 162.)

Supreme Court of Arkansas.

July 11, 1927.

Rehearing Denied September 26, 1927.

Appeal from Circuit Court, Ouachita County; L. S. Britt, Judge.

Heinie Henderson was convicted of having possession of a still, and he appeals. Affirmed.

R. K. Mason, of Camden, and Powell, Smead & Knox, of El Dorado, for appellant.

H. W. Applegate, Atty. Gen., and Jno. L. Carter and Darden Moose, Asst. Attys. Gen., for the State.

MEHAFFY, J.

Heinie Henderson, the appellant, was convicted at the April term, 1927, of the Ouachita circuit court, of the crime of having a still in his possession, and the indictment charges that the crime was committed as follows: The said defendant, on the 18th day of April, 1927, in Ouachita county, Ark., did unlawfully and feloniously have and keep in his possession a still and still worm, such as may be used for the manufacture of distilled spirits, without registering the still with the proper United States officer.

R. D. Newton testified, in substance: That he was deputy sheriff of Ouachita county and knew the defendant, and that, as deputy sheriff, he went to the home of Heinie Henderson with A. W. Ellis, S. W. Padgett, B. M. Milner, and Zack Horton. That they had information that the defendant was engaged in the liquor business and they went to his house, and it was just getting daylight. There was a negro sleeping in a tent back of the house, and by his bed were some old overalls which made witness think he was running a still. Witness asked this negro what he was doing, and he said he was working for the defendant. The defendant and his brother came out of the house, and there was another man that witness did not know and Slim Jackson. Witness said they made a search of the place and found a lot of empty fruit jars and some eight-ounce bottles and one or two kegs. The negro took them up to the still; took them through the woods around some trails a mile or two from the house. It was a copper still, would hold probably 100 gallons, and there were 46 or 48 barrels of mash at the still; but they did not find any liquor. The still was complete in every way. Witness said they then went back and brought defendant and his brother and a negro to town. Did not see any houses but the defendant's and his still.

A. W. Ellis, the sheriff, testified in substance to the same facts testified to by Newton. He testified about following the old negro and being taken by him to the still, and the old darkey told him he was working for the defendant. That witness returned the following day to defendant's house and made a search there and found some burners like the one at the still. The still bore evidence of having been operated. The burners that they found were rusty. The tent that the negro was in was about 20 feet from the corner of defendant's house. It was furnished with two or three beds, a dresser, and an old rug. It was about 16 by 18 feet. Nobody was sleeping in there but the old negro. Noah Goff, the old negro, also testified that when Mr. Ellis and Mr. Newton came to the house that he was in the tent sleeping. That he had just come there. Had worked three days for the defendant. Defendant had hired him to work for him, and defendant was to pay him $4 a day for his labor, and he went to work for him at the still. Defendant said it was his still. That he did not know how to run a still. That he was at the still Thursday, Friday, and Saturday, three evenings and was sent there by defendant, and defendant was paying him. He worked at the same still that he took Mr. Ellis and Mr. Newton to. Had never worked at a still before. He worked around the still and put some mud around the still, and knew that they were making liquor there. He also cut some wood.

The above is the substance of the testimony introduced by the state, and it is unnecessary to set it out in detail.

The old darkey testified that he was employed by the defendant to work at the still and did work at the still, and defendant told him that the still belonged to him. The officers testified in substance that the old negro showed them the still, and then, in their search, they found some burners, jars, kegs, etc.

Joe A. Scarboro, justice of the peace, and witness for the defendant, testified in substance that the defendant was tried in his court and bound over, and this witness stated that the old negro, Noah Goff, testified that he had been hired by defendant or some one to cut wood, and he started to work, and some time afterwards some one told him he would have to go over and work at the still, and he went to some still; that the person who told him to go was some one he did not know. The old negro testified that he was sure that the defendant had never mentioned the still to him. On cross-examination he said there was enough testimony to bind the defendant over; that he did it because he thought it ought to be investigated. Witness said he did not reduce the old negro's testimony to writing; that he was just telling what he remembered about it. Witness said he also bound the negro over, and when time came for the examining trial he asked about him, and nobody seemed to know, and some one told witness that the case against the negro had been dismissed.

John B. East, a witness for the defendant, testified: That he had been a deputy United States marshal about 4½ years and knew the defendant, and that before the defendant moved to the place where officers searched, that he had seen a number of fruit jars and beer bottles there. It looked like a typical beer joint. That was before defendant moved there. That after defendant moved there it did not look the same. But that he had seen liquor there. Defendant told witness that he was farming and had a corn crop. His crop was mostly corn and beans.

D. A. Braswell, witness for the defendant, testified that he was constable and that he had seen lots of ½-inch pipe and quite a few bottles and jars around the place before the defendant moved there, and that he also saw them while the defendant lived there. It looked about the same after he went there.

After the evidence was introduced and argument of counsel, the jury found the defendant guilty and assessed his punishment at two years in the state penitentiary. Thereafter, the defendant filed motion for a new trial which was overruled and exceptions saved, and the defendant appealed to this court. No objections are made to the instructions given by the court and no objections to the evidence, but the appellant insists that the case should be reversed because Goff, the negro, was an accomplice, and that there was not sufficient corroboration of the testimony of Goff to justify submitting the case to the jury.

The statute with reference to an accomplice is:

"A conviction cannot be had in any case of felony upon the testimony of an accomplice, unless corroborated by other evidence tending to connect the defendant 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. Provided, in misdemeanor cases a conviction may be had upon the testimony of an accomplice." Crawford & Moses' Digest, § 3181.

While the evidence corroborating the testimony of the negro is very slight, still a majority of the court are of the opinion that even if the negro witness was an accomplice,...