Hester v. State

• Decision Date: 26 September 1921
• Docket Number: 121
• Citation: 233 S.W. 774,149 Ark. 625
• Parties: HESTER v. STATE
• Court: Arkansas Supreme Court

233 S.W. 774

149 Ark. 625

HESTER v. STATE

No. 121

Supreme Court of Arkansas

September 26, 1921

Appeal from Greene Circuit Court, Second Division; R. E. L. Johnson Judge; reversed.

Judgment reversed, and cause remanded.

Jeff Bratton and W. W. Bandy, for appellant.

1. The declaration as to appellant's whereabouts on the night of the burglary, made by his mother immediately after her husband on the next day reported the occurrence of the burglary, was competent. This exclamation was res gestae of the evidentiary fact of her remembrance as to where he was at the time the crime was committed, his whereabouts at that time being the ultimate, or principal fact to be proved. Corpus Juris, vol. 22, p. 449; 88 S.W 212, 215; 48 Ark. 333; 17 Cyc., 795.

2. The testimony of the witness Bill Woods, to the effect that after the burglary Cole, in the absence of the appellant, told him who committed the burglary, and that appellant was one of them, was pure hearsay, and not admissible. 73 Ark. 146; 141 Ark. 170; 143 Ark. 315; 37 Ark. 84; 63 Ark. 457.

3. The court erred in refusing to declare, as a matter of law, that the witness, Wood, was an accomplice. At least, the question should have been submitted to the jury. 139 Ark. 385. The evidence shows unmistakably that he was an accessory after the fact, and, therefore, an accomplice; but, if there was any dispute, the question should have been submitted to the jury. 51 Ark. 115; 111 Ark. 299; Terry and Cornall v. State, ms. op.; Corpus Juris, vol. 16, pp. 139, 670; 130 Ark. 353; 128 Id. 452; 63 Id. 457; 125 S.W. 16; 36 Ark. 126.

4. The jury should have been instructed not to consider the testimony of the witnesses, Cole and Spillman, as being corroborative each of the other. 51 Ark. 115; 43 Id. 369.

J. S. Utley, Attorney General, Elbert Godwin and W. T. Hammock, Assistants, for appellee.

1. The remark of appellant's mother in conversation at the table the next day after the perpetration of the crime was not a part of the res gestae. 1. Wharton on Evidence, § 259; 69 Ark. 648; 85 Id. 300; 114 Id. 267; 138 Id. 517; 217 S.W. 482.

2. Conceded that it would have been improper for Woods to testify that appellant was one of the parties implicated in the crime, but Woods did not so testify.

3. On the question as to Woods being an accomplice, the court was correct in its rulings. The test as to whether a witness is an accomplice is whether he could himself have been indicted for the offense either as principal or accessory. 1 R.C. L. § 3, p. 157; 12 Cyc. 445, 446; 16 Corpus Juris, p. 671. Appellant was tried and convicted, not on the larceny charge, but only for burglary. Woods might have been an accomplice of Cole, and still not be an accomplice of appellant. C. & M. Digest, § 2432; Id. § 2483; Id. § 2495; 1 R. C. L. § 3, pp. 157, 158; Id. § 5, p. 159; 132 Ky. 666, 117 S.W. 253; 136 A. S. R. 192, 19 Ann. Cas. 140 and note; 18 S.D. 1, 98 N.W. 171; 5 Ann. Cas. 760 and note. See also 16 Corpus Juris, p. 672. This testimony, if believed, sufficiently corroborated the testimony of Cole and Spillman to warrant conviction of appellant for burglary. 36 Ark. 653; 32 Id. 220.

OPINION

HART, J.

Ray Hester prosecutes this appeal to reverse a judgment of conviction against him for the crime of burglary.

The first assignment of error is that the court erred in not telling the jury that Bill Woods was an accomplice, and that his testimony required corroboration in order to convict the defendant.

Among the witnesses for the State were Walter Cole, Bill Woods, and Gilbert Spillman. Walter Cole and Gilbert Spillman testified that they, in company with Ray Hester, broke into a mercantile establishment in Paragould, Greene County, Arkansas, in April, 1920, in the night time and took therefrom silk shirts, silk hose, shoes, underwear, collars and neckties, worth between $ 2,000 and $ 3,000.

Walter Cole testified that they hid the goods under a certain house on the night the burglary was committed; that he told Bill Woods about the burglary before the goods were divided; that he also talked with Bill Woods about the burglary after the goods had been divided; that Bill Woods agreed to help him take his share of the stolen goods to Oklahoma; that they placed the stolen goods in grips and that he and Bill Woods started to Oklahoma and were arrested soon after they started, and that Bill Woods had part of the stolen goods in his grip at the time he was arrested.

Bill Woods testified that, in a few days after the burglary was committed, Walter Cole told him that Ray Hester, Gilbert Spillman and himself had committed the burglary; that soon afterward witness asked Ray Hester if they had divided the goods, and Hester replied that they had, and that some one had stolen his part. Witness then agreed with Walter Cole to help him carry his part of the stolen goods to Oklahoma for the purpose of disposing of them. Walter Cole and Bill Woods then started to Oklahoma, each carrying a grip with part of the stolen goods in it. Witness knew that the goods had been stolen at the time the storehouse in question was burglarized in Paragould, Arkansas, and he was going with Cole to Oklahoma to help him dispose of his share of them at the time they were arrested.

The court instructed the jury that Walter Cole and Gilbert Spillman were accomplices of the defendant in the burglary, but refused to instruct them that Bill Woods was also an accomplice, and that there could be no conviction upon his uncorroborated testimony.

This raises the question of whether or not the failure of the court to charge that Bill Woods was an accomplice, and that under the statutes his testimony required corroboration, calls for a reversal of the judgment. The word, "accomplice," as used in our statute requiring corroboration, has been construed by the court to include an accessory after the fact. Edmonson v. State, 51 Ark. 115, and Stevens v. State, 111 Ark. 299, 163 S.W. 778.

But it is insisted by the State that the receiver of stolen goods is not an accomplice of the person committing burglary at the time the goods are stolen. There is a division of the authority in other States on this question. In Murphy v. State, 130 Ark. 353, 197 S.W 585, the defendant was charged with the crime of larceny, and it appeared from the testimony that he had delivered some of the stolen goods to one "C." This court held that it was the duty of the court to tell the jury that if "C." received the stolen goods with...